Damages legislation:

In Australian jurisdictions besides SA (where civil juries have been abolished), the court has discretion to order that a trial be heard by a jury. Where the trial is heard by a jury, the assessment of damages is also the task of the jury, except for NSW where the judge determines the amount of damages to be awarded.

Random House Australia Pty Ltd v Abbott (1999)
FACTS: Random House was the publisher of a book which included a section commenting on politicians Mr. Abbott and Mr. Costello and their respective wives. This was an appeal case regarding the damages awards was granted to each of those affected by the defamatory publication. Miles J discussed some aspects of damages awards for defamation.

In most torts, there is a clear distinction between compensation for the plaintiff and punishment for the defendant but… “The tort of defamation has a quasi-criminal background and the liability of the defendant includes exposure to a monetary remedy which is supposed to express social disproval, even if the defendant’s conduct falls short of warranting the award of exemplary or punitive damages…”

It was recognised that there has been a shift in the focus of defamation cases from the loss of reputation to the hurt to feelings. In Australia there has been no attempt judicially or legislatively to restrict or isolate damages for hurt to feelings.

The law presumes harm to reputation from a libellous publication, a plaintiff does not have to prove or call evidence about actual harm.
 
As a matter of principle, a person is not entitled to damages by being outraged at the defamation of somebody else.

Publication of an apology may mitigate damage, thereby reducing he harm suffered by a plaintiff in a defamation case, and so reduce the damages awarded, the failure to publish an apology does not increase the plaintiff’s hurt or widen the area of publication.

Failure to apologise is never, without more, enough to warrant aggravated damages

Carson v John Fairfax & Sons Ltd (1993)
FACTS: Carson won actions in defamation for two articles published in the Sydney Morning Herald. The total damages awarded for the two articles came to $600,000. On appeal the Court of Appeal found the award to be excessive and Carson appealed to the High Court.
HELD: The issue at the centre of this case was whether past awards of general damages in personal injuries cases could be used to provide legitimate guidance on a the determination of a damages award in defamation.

The majority of Mason CJ, Deane, Dawson and Gaudron JJ found “no significant danger in permitting trial judges to provide to the jury an indication of the ordinary level of the general damages component of personal injury awards for comparative purposes, nor in counsel being permitted to make a similar reference.” They were able to come to this conclusion on the basis that the law today is not more jealous of a man’s reputation than of his life and limb, and the seeming inequity in a plaintiff in an action for defamation recovering a much larger damages award for an injury to his reputation, which may prove transient in its effect, than the damages awarded for the pain and suffering of a victim who has lost an eye or the use of one or more limbs. - Appeal dismissed.

The minority of Brennan, Toohey and McHugh JJ found that “the issue is not whether the law is more jealous of reputation than of life and limb… it would be a mistake to regard the consequences of the injury inflicted in the two classes of case as being comparable… in personal injury the law calls for compensation to be assessed by reference to the pain and suffering caused… in cases of libel, compensation is assessed by not only the pain and suffering resulting from the publication but also by the extent to which this pain and suffering is aggravated… and also considers the plaintiff’s need to receive an award which will vindicate his reputation in the eyes of the public… it is wrong for an appellate court to form a  normative standard for reviewing jury assessments of damages for defamation by reference to awards in personal injury cases” – (Brennan’s judgment).

McHugh J: The mixture of inextricable considerations which ultimately governs an award of damages for defamation means, “The elements of an award of damages in a defamation action are so intangible and the criterion of value so vague that no two persons are likely to agree, even approximately, on what is a proper award for defamation. This is so even in a case where exemplary damages cannot be awarded.”

The award of damages is not likely to be set aside as excessive by a court of appeal. An appeal court will only intervene where the award is manifestly excessive or inadequate although the reasons for doing so are not clearly identifiable.

Note: After this case, the Defamation Act 1974 (NSW) was amended in 1994 to include s46A: “the court is to take into consideration the general range of damages for non-economic loss in personal injury awards”.

Rogers v Nationwide News Pty Ltd [2003]
FACTS: The appellant was a prominent eye surgeon who was defamed in a front page article published by the respondent in the Daily Telegraph. The article contained implications that the surgeon was negligent and had caused the blindness of both eyes in one of his patients, Mrs. Whitaker. In an earlier trial, the appellant had been granted damages of $250,000. The issue that Miles J examined was the application of s46A of the Defamation Act and the extent to which comparisons may be made with personal injury damages awards.
HELD:The purpose of s46A is to ensure that a person’s reputation is not valued higher than life or limb. “If an award of damages for defamation is greater than the amount allowed for the most serious physical injuries with permanently disabling consequences, it may be evident that the amount awarded for defamation is manifestly excessive” – per Hayne J at 72. What s46A does is merely determine the outer limits of a defamation damages award.

s46A requires the investigation of personal injury awards to determine the maximum possible award and sets that as the maximum possible for defamation, but so long as the defamation award stays within that limit, it will be difficult to state

“The general range, those statutory limits imposed in cases of motor or workplace accidents are not to be taken as being indirectly imposed as limits on the amount to be allowed in defamation. But the reference to the general range of damages does identify the highest sums awarded for the non-economic consequence of personal injury as what might be called a presumptive outer limit to awards for defamation.” – per Hayne J at 76.

The award of $250,000 was held to be properly awarded with the trial judge having the right to conclude that the effect of the publication on Rogers was very large.

Fleming , “Retraction and Reply: Alternatives to Defamation” (1978)
A defamed plaintiff has a legitimate claim to vindication in order to restore his damaged reputation, but a settlement for, or even a court award of, damages is hardly the most efficient way to attain that objective. In either case, the refutation of the libel is not attended with much publicity, if any, and, if resisted by the defendant, occurs long after the libel has spread its poison.

So far as the plaintiff is concerned, damages offer him a pot of gold which he may not even desire, but since this is all that the law provides him as a token of vindication, it is still widely regarded as necessary for honourable men to demand a large sum of damages lest it be misinterpreted as a tacit admission that one’s reputation was not worth more.