Defamation update: Are hurt feelings a trivial matter?
To what extent are a defamation plaintiff’s hurt feelings relevant to the defence of triviality? On 20 October 2016, the majority of the Queensland Court of Appeal in Smith v Lucht  QCA 267 definitively answered this question: the plaintiff’s hurt feelings are not relevant to the defence.
Smith v Lucht  QCA 267
Smith v Lucht will be of interest to all Australian legal practitioners practising in defamation law. Previously there had been no conclusive interpretation of the triviality defence and more specifically, no conclusive interpretation of the meaning of ‘harm’. So much was acknowledged by Kaye JA in Barrow v Bolt  VSCA 107. Given the High Court’s decision in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, the majority’s interpretation is highly likely to influence intermediate and lower courts of other jurisdictions, unless of course the courts and trial judges are convinced that the interpretation is plainly wrong.
A solicitor, Mr Smith, commenced a defamation claim after being referred to as ‘Dennis Denuto’. Denuto is a fictional character in the Australian film classic, ‘The Castle’, memorable as the post-it note savvy solicitor of ‘it’s the vibe’ notoriety. Mr Smith sought damages in the amount of $250,000.
Mr Lucht, the defendant and respondent, was the former husband of Mr Smith’s daughter-in-law (Ms Smith). Mr Lucht made the Denuto references when negotiating and facilitating access arrangements in respect of Ms Smith and Mr Lucht’s children. The audience was small; Mr Smith, his son and Ms Smith.
The District Court decision
At first instance, Mr Smith argued that being referred to as ‘Dennis Denuto’ carried the imputation that Mr Smith was incompetent and unprofessional. The trial judge agreed. Mr Smith’s prima facie success was overborn by Mr Lucht’s triviality defence, that is, that the circumstances of publication were such that Mr Smith was unlikely to sustain any harm. The trial judge held that if he were wrong, he would assess damages at $10,000, including interest.
Mr Smith’s primary contention was that the trial judge erred in applying the triviality defence. In upholding the trial judge’s decision, the Court of Appeal gave considerable attention to the meaning of ‘harm’ for the purposes of the triviality defence.
Construction of the Triviality Defence
The wording of the triviality defence is as follows:
It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.
On appeal, two of the three members of the Court preferred a narrow construction of ‘harm’. The upshot of a narrow construction or reputation-only construction of ‘harm’ is that a defendant seeking to invoke the triviality defence need not be concerned about jumping over an additional hurdle of proving that the defamatory publication was unlikely to hurt the plaintiff’s feelings.
On a narrow, reputation-only construction of the triviality defence harm to reputation is the only relevant type of harm to consider. Of course, this doesn’t mean that a plaintiff’s hurt feelings are entirely irrelevant in a defamation proceeding; they are at least relevant when it comes time to assess damages.
Flanagan J’s decision (Philippides JA agreeing)
Of the three members of the Court, Flanagan J undertook the most comprehensive analysis of the construction of the triviality defence. In favouring a reputation-only construction of ‘harm’, Flanagan J observed:
- That the objects of the Act and the law of defamation are directed to protecting reputation and providing remedies in circumstances where reputation is harmed. Flanagan J considered that the Defamation Act contemplates that ‘if a person’s reputation is not harmed (or not likely to be harmed) no remedy should be available’; (at )
- The use of ‘harm’ throughout the Act:
- In summary, a reference to ‘harm’ in the Act may mean ‘harm to reputation’ or may include other types of harm depending upon the section in question. Overall, Flanagan J appears to have been of the view that the use of ’harm’ throughout the Act did little to assist in ascertaining the meaning of ‘harm’ within the triviality defence.
- More notably, his Honour was of the firm view that ss 34 and 36, being sections which consider ‘harm’ to include ‘hurt feelings’, do not provide support for an inclusive construction of the triviality defence. Sections 34 and 36 relate to damages and deal with different subject matter from the triviality defence. Consideration of the plaintiff’s hurt feelings are therefore only relevant at the time of assessing damages.
- The subjective quagmire of hurt feelings: Flanagan J accepted Mr Lucht’s submission as to the practical difficulties inherent in an inclusive construction of the triviality defence (at ):
if “harm” … extends to hurt feelings a court could never exclude the prospect of hurt feelings as that inquiry is entirely subjective being dependent on the subjective response of the plaintiff and a matter for evidence.
McMurdo P’s minority decision
In contrast, McMurdo P observed that the triviality defence should not be limited to reputational harm (at ):
The term ‘harm‘ is not defined in the Act. Compensable harm for defamation includes not only reparation for harm done to the plaintiff’s personal and business reputation, but also harm for personal distress and hurt caused to the plaintiff by the publication, and to vindicate the plaintiff’s reputation. In the absence of a clear statement to that effect, it seems unlikely the legislature in enacting s 33 intended to deprive those who had proved they were defamed from obtaining damages for any compensable harm arising from the defamation. That construction is supported by the use of the phrase in s 33 of “any harm” (my emphasis). I am presently unpersuaded that “harm” in s 33 should be construed as limited to reputational harm. [citation omitted]
Smith v Lucht provides support for a narrow construction of the triviality defence. This narrow construction is highly likely to influence intermediate and lower courts of other jurisdictions.
 Section 33 of the Defamation Act 2005 (Qld). The defence is set out in s 33 in the corresponding Acts in Victoria, New South Wales and Western Australia and in s 31 in South Australia.