Topic 4: Reparation - Loss of reputation damages

Question 0

What are the types of loss of reputation damages?

Answer 0

1. Vindicatory damages: restore P’s reputation
2. Personal Consolation: compensate P for injury to feelings by publication of defamatory material
3. Financial or economic: loss as a result of defamatory comment.

Question 1

When would a Plaintiff seek loss of reputation damages?

Answer 1

In a defamation case, where the defamatory comments have already been published so an injunction would be inappropriate.

Question 2

Which two damages often awarded together in a lump sum?

Answer 2

1. Vindicatory damages; and

2. Personal Consolation damages

Question 3

What case is relevant to Vindicatory and PC damages?

Answer 3

Uren v John Fairfax

Question 4

What are the facts of Uren v John Fairfax?

Answer 4

• Uren was member of federal parliament
• One of newspapers suggested (but didn’t name Mr Uren) that a particular MP had been put up by a Russian spy to ask about secret establishments in Aus
• It was on public record that it was Mr Uren who asked those questions
• So even though not named, anyone who followed politics knew article was referring to P
• Therefore defamatory imputation

Court held:

• 13,000 damages. D appealed saying it included punitive component, which is not the aim of personal consolation damages.
• Trial judge direction: punitive component appropriate in this particular case
• HC held: Trial judge direction wrong. This was not such a case
• They had two points:
  
  1. In assessing vindicatory damages or for PC, must take into account conduct of D.
  2. Defamation is actionable per se, no need to demonstrate any loss.

Question 5

What if the person seeking damages for vindication and PC are of high reputation?

Answer 5

The Plaintiff can lead evidence of a higher reputation in order to get more damages: Bickel v John Fairfax

Question 6

What are the facts of Bickel v John Fairfax?

Answer 6

• A P was well known author on scientific subjects
• D published an article which suggested P had inadequate regard to certain moral dilemmas and compared the work of P with another saying the other author was better
• P argued he was established authority and had a particularly high reputation in his field.

Court held:
- Allowed to lead evidence of his high reputation to get higher damages.

Question 7

Can punitive damages be awarded in Qld for a defamation action?

Answer 7

No, s37 Defamation Act

Question 8

Is there a cap on the damages for defamation actions?

Answer 8

s35 DEFAMATION ACT:

(a) - maximum for NON ECONOMIC LOSS is 250,000
(b) - for a relevant minister is cap for NON ECONOMIC LOSS indicated by the gazette. 2013 currently: 355,500

Question 9

What is a case for Financial losses for defamation?

Answer 9

Andrews v John Fairfax

Question 10

What are the facts of Andrews v John Fairfax?

Answer 10

• P was an architect
• The D’s newspaper published an article which was very critical of a building P designed
• P wished to recover damages for loss of income to his professional practice

Court held:

• Willing to grant vindicatory damages and damages for PC
• However P hadn’t shown any loss of income.
• P MUST PROVIDE EVIDENCE, so possible but in the case P hadn’t shown.

Question 11

What is a case to measure aggravated damages in defamation?

Answer 11

Random House Australia v Abbott and Others

Question 12

What are the facts of Random House Australia v Abott and Others?

Answer 12

• Author wrote a book and was political commentator.
• He made imputations that two MPs had sexual relations with a woman, one of whom was married to her now, and that she had used her sexual prowess to convert them to Liberal party.
• Claim brought by four plaintiffs, years later: Mr and Mrs Costello, Mr and Mrs Abott.
• Mrs Abott didn’t have ties to Australian politics, she was NZ citizen.
• Random house argued, they were two separate statements, one that P had engaged in pre marital sex which was common and two the males had simply switched parties, which is also common.

Court held:

• They were integral attacks on the P, an imputation of shallow political commitment and the article described sex being used in a manipulative way.
• They calculated damages by identifying who would be aware of the political statement:
  
  1. People well versed in history or are part of politics would know
  2. Average person that might have an interest in reading that sort of thing, but no political foundation.

Question 13

How did the courts calculate injuries to reputation i.e. vindicatory damages?

Answer 13

• Mr Abott + C’s = 40,000
• Mrs Abott = 30,000
  
  • Different because first class of people (political persons) would know she didn’t have ties so the imputation wasn’t her
  • However still got some because the average person wouldn’t know she didn’t have ties so it could be her.

Question 14

How would a plaintiff show injury to reputation?

Answer 14

1. Newspaper articles commenting on them
2. If ordinary person, establish:
   
   1. No longer welcome at certain places; or
   2. Lost friends; or
   3. Statements from people of what they think of them; or
   4. doesn’t have to be evidence of economic loss.

Question 15

How did the courts calculated injury to feelings i.e. Personal Consolation damages in Random House v Abott and Others?

Answer 15

• Subjective view looking at each of the Plaintiffs separately
  1. Mrs Costello = 30,000
  2. Mr Abott = 15,000
  3. Mrs Abott = 10,000
• Mrs Abott would be aware she wasn’t the one being referred to because she doesn’t have any ties, but would still suffer some anxiety from an attack on her husband’s political career.
• Mrs C gets most because she knows it’s an attack on her.

Question 16

How did the courts calculate Aggravated Damages in Random House v Abott and Others?

Answer 16

• This focuses on what the party did AFTER publication of the defamatory material.
  Judges considered factors:
  1. D have ascertained information was false, did not withdraw the book
  2. D failed to give public endorsement that the story was not true and didn’t disassociate themselves with the author in the media.
  3. D’s attempts to recall books from libraries were seriously inadequate.
  4. Failure of D to apologise and destroy books in circulation
• unimpressed with evidence of D that they ‘didn’t know’ material was defamatory.

Question 17

Can aggravated damages be completely extinguished if appropriate steps taken by D?

Answer 17

Random House Australia v Abott and Others:

• MAY be extinguished.
• Not doing the steps to apologise, will increase aggravated damages
• Taking steps to their best of the abilities, MAY extinguish, but not necessarily. It is most likely that they will REDUCE aggravated damages.