Arthur Dent v Macquarie Radio Network Pty Ltd

[2006] NSWSC 186

CITATION:	Arthur Dent v Macquarie Radio Network Pty Ltd [2006] NSWSC 186
HEARING DATE(S):	28/11/05,29/11/05, 30/11/05, 1/12/05
JUDGMENT DATE :	5 April 2006
JUDGMENT OF:	Bell J at 1
DECISION:	1. Verdict and judgment for the plaintiff in the sum of $65,000; 2. The proceedings may be re-listed by arrangement with my Associate on three days’ notice for submissions on interest and costs.
CATCHWORDS:	Defamation - Defences - Justification - Fair protected report - Fair summary of protected report - Comment
LEGISLATION CITED:	Defamation Act 1974 Supreme Court Rules 1970
CASES CITED:	Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 Barbaro v Amalgamated Television Services Pty Ltd (1989) 20 NSWLR 493 Bickel v John Fairfax & Sons [1981] 2 NSWLR 474 Burstein v Times Newspapers Ltd [2001] 1 WLR 579 Carson v John Fairfax & Sons Ltd (1992) 178 CLR 44 Dare v Pulham (1982) 148 CLR 658 Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40; [2002] 1 WLR 3024 Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 Morgan v John Fairfax & Sons Ltd (1990) 20 NSWLR 511 Rogers v Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327 Thompson v Truth and Sportsman Limited (1932) 32 SR (NSW) 21 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58
PARTIES:	Arthur Dent (Plaintiff) Macquarie Radio Network Pty Ltd (Defendant)
FILE NUMBER(S):	SC 20018/03
COUNSEL:	C. Evatt / C.J. Dibb (Plaintiff) B. McClintock SC (Defendant)
SOLICITORS:	Carters Law Firm (Plaintiff) Banki Haddock Fiora (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Wednesday 5 April 2006

20018/03 Arthur Dent v Macquarie Radio Network Pty Ltd

JUDGMENT

1 BELL J: The plaintiff claims damages for defamation arising out of the broadcast of a program on radio station 2GB on the morning of 12 June 2002. On 19 August 2004 a jury determined that the matter complained of carried three of the imputations pleaded by the plaintiff and that each was defamatory of him.

2 The defendant raises a number of defences and pursuant to s 7A(4) of the Defamation Act 1974 (the Act) I am required to determine whether any defence has been established and to determine the amount of damages, if any, that should be awarded to the plaintiff.

3 The matter complained of was broadcast in the course of the Ray Hadley morning program, which was an “open line” program featuring discussions between Mr Hadley and listeners, which were broadcast live. The matter complained of commenced at around 9.10am when Mr Hadley made statements about the plaintiff arising out of a report published in the Sydney Morning Herald of a claim for damages for personal injuries that the plaintiff had brought in the District Court (the Herald report). Mr Hadley discussed the Herald report, which included an account of another liability claim brought in the District Court, proposed reforms to the law of negligence and the cost of insurance. Over a period of about twenty-five minutes he returned to the topic of the plaintiff’s claim on three occasions.

4 The matter complained of comprises the words broadcast between 9.10am and 9.35am on 12 June 2002 and is contained in Schedule A to the plaintiff’s third further amended statement of claim. The passages that are said to give rise to the imputations, being the four segments that contained reference to the plaintiff, are set out in exhibit F.

5 Before setting out the terms of exhibit F, it is convenient to refer to the contents of the Herald article, which was published on 12 June 2002 under the by-line of Leonie Lamont. It was headed, “Who dares wins – or sues” and the relevant parts of it were as follows:

Two middle-aged men injured in dare devil sporting pursuits launched separate actions in the Sydney District Court yesterday, claiming damages as result of alleged negligence by the sports’ organisers, and others.
…
In another case, a Mittagong man in his early 40’s who changed his name to Arthur Dent after the figure from the Hitchhikers Guide to the Galaxy – is suing after an October 1997 incident when his leg strap snagged on a hook on a plane during skydiving.
Mr Dent, pictured, says he has done about 10,000 jumps and was on the plane to video parachutists. He is claiming unspecified damages. He told Judge Anne Ainslie-Wallace he had impaired memory, difficulty concentrating, pain in his back, arm and leg, lost teeth and suffered shock, anxiety and depression. The Court heard Mr Dent had been on a disability pension since 1972 after a motorcycle accident.

6 I will set out the relevant passages of the matter complained of together with the line numbers as they appear in exhibit F:

71 The night in freezing conditions in the Blue Mountains. A couple of
72 more ridiculous liability claims today mentioned in the Herald. One of
73 them a person has given evidence that he made 10,000 parachute
74 jumps before suffering some injuries. Apparently he got caught on
75 some sort of hook on the aircraft. I don’t know the extent of the
76 injuries it is not documented but the bloke has told the court he had
77 been on a disability pension since 1972 since a motorcycle accident.
78 Now call me stupid, call me naïve, call me whatever you like but how
79 does someone on a disability pension who is unable to work, because
80 I would imagine he is not able-bodied. You see it is not stress or
81 some sort of mental problem. He’s been on a disability pension
82 because he had a motorcycle accident. Now if you can’t work and
83 you’re on a disability pension, how do you keep skydiving? One
84 would imagine that a fair bit of effort’s involved in skydiving. Perhaps
85 not as much effort as is required to work five days a week. So anyway
86 we will talk about that later this morning.
…

199 And a fellow called Arthur Dent, who apparently change
200 his name from Mittagong is suing after a skydiving incident in which
201 his leg strap snagged on a hook on a plane. He told Judge Anne
202 Ainslie-Wallace he had impaired memory, difficulty concentrating,
203 pain in his back, arm and leg, lost teeth and suffered shock, anxiety
204 and depression. I get depressed reading about it. The court heard
205 Mr Dent – and this is the remarkable part of it. I don’t quite, I don’t
206 understand the claim but I more particularly don’t understand this. The
207 court heard Mr Dent had been on a disability pension since 1972 after
208 a motorcycle accident. But Mr Dent told the court he’s done about
209 10,000 parachute jumps. How does a man on a disability pension
210 continue to jump out of a plane? If you can’t work, one would assume
211 you’re not well enough to jump out of planes but he does.
…

360 HADLEY: And the same with I mean I would never I don’t want to jump out of a
361 plane. Everyone tells me it’s a wonderful thing and you should try it.
362 Leave me out of it, but this bloke jumped out of a plane 10,000 times.
363 MATT: Yup.
364 HADLEY: And, I mean by its very nature once you get off the ground in a plane
365 with a parachute on I would imagine every time you jump out of the
366 plane you are taking you know exactly your life in your hands.
367 MATT: Well I agree I agree totally and I think that you know it’s obviously just
368 been a shift in everyone’s attitude but we need to shift back and that
369 is that we have got to take some responsibility for our own actions
370 that’s for sure.
…

484 HADLEY: Hello Irene.
485 IRENE: Hello.
486 HADLEY: Hello
487 IRENE: Hello Ray.
488 HADLEY: Irene.
489 IRENE: I love 2GB.
490 HADLEY: [laughter] That’s very kind of you. We love you.
491 IRENE: Ray, how on earth can this person on a disability allowance afford to
492 jump out of planes?
493 HADLEY: That’s another valid point. Apart from a physical aspect it does cost
494 money to get up in a plane and jump out of it.
495 IRENE: It does. Ray, I mean you just barely live on a disability allowance so
496 how can he afford to jump out of planes? There’s something very
497 fishy about this whole thing.
498 HADLEY: Well if we are to believe the paper today, he’s been on the same
499 allowance since 1972. It’s now 2002 and in that period of time he has
500 made 20,000 or is it 10,000 jumps. It’s a lot of jumps anyway. 10,000
501 jumps.
502 IRENE: My goodness since 1972.
503 HADLEY: Hmmm. After a motorcycle accident I think it was.
504 IRENE: My goodness.
505 HADLEY: Anyway as I saw now he’s put himself in the eye of the public we’ll
506 keep an eye on him and follow the court case with some interest.
507 IRENE: Yes Okay thanks Ray.

7 The jury found the following three imputations to have been carried by the matter complained of and to have been defamatory of the plaintiff:

(a) The plaintiff is a malingerer.

(b) The plaintiff fraudulently obtained a disability pension to which he was not entitled because he was able to make 10,000 parachute jumps.

(c) The plaintiff received a disability pension even though he was well enough to work.

8 The defendant pleads the defence of substantial truth, pursuant to s 15 of the Act with respect to imputation (a). It also pleads the defence of contextual truth pursuant to s 16 of the Act. The defendant’s contextual imputation is:

The plaintiff brought a ridiculous liability claim following upon a skydiving incident.

9 In answer to the whole of the plaintiff’s claim the defendant raises the statutory defence of qualified privilege under s 22, fair report under s 24 and comment under ss 33 and 34 of the Act.

The application to amend the defence

10 Before turning to the defences, I record my reasons for rulings that I made during the course of the trial on the defendant’s application to amend its defence. Mr McClintock SC, who appeared on the defendant’s behalf, applied to amend the defence so as to justify imputations (b) and (c). The application was made in the course of his closing submission.

11 Mr McClintock submitted that leave should be granted since the truth of each imputation was in issue in the pleading of the claim for aggravated damages. In his submission the plaintiff’s evidence addressed the truth of each of the imputations and there was no further evidence that he might have been expected to give with respect to either imputation (b) or (c). He referred to the decisions of the High Court in Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 and Dare v Pulham (1982) 148 CLR 658, contending that disconformity between the evidence and particulars earlier furnished should not disentitle the defendant to a verdict based upon the evidence.

12 I was not persuaded that the amendment at this late stage in the proceedings would not occasion prejudice to the plaintiff. The trial was not conducted on the basis that the defendant was seeking to justify either imputation (b) or (c). No particulars of truth pursuant to Pt 67 of the Supreme Court Rules 1970 had been supplied. The defendant objected to the tender of the medical reports of Dr Van Duuren of 10 November 2004 and 9 November 2005 on the grounds of relevance and in light of the objection, the tender was not pressed. Had the plaintiff been dealing with a defence that imputation (c) was substantially true, any medical opinion touching on his ability to work in the period after March 1997 (when he commenced receipt of the disability pension) would have been relevant. As Mr Evatt observed, arrangements might have been made to have the plaintiff examined by doctors on this issue. Mr McClintock challenged the plaintiff that when he obtained the disability pension he was fit and well (T 132.46-47) and that at the time he made the application for the disability pension he was fit and well (T 133.28-29). The closest he came to putting the truth of imputation (b) was to seek the plaintiff’s agreement that it would be fraudulent to put in an application for a disability pension when he knew he was fit and well (T 133.44-46). This did not seem to me to be a case in which the application to amend after the close of the evidence was made so as to bring the pleadings into conformity with the evidence. I considered the defendant’s reliance on Dare and Leotta to be misplaced. I refused leave to amend the defence in order to justify imputations (b) and (c).

13 Mr McClintock also sought leave to amend the pleading of the defence of contextual truth so as to include the proof of the substantial truth of imputation (a) together with the contextual imputation to support the defence that the publication of imputations (b) and (c) did not further injure the plaintiff’s reputation. I allowed this amendment since it occasioned no prejudice to the plaintiff. There was no suggestion that the case would have been conducted differently had the defendant pleaded its reliance on the substantial truth of the plaintiff’s imputation (a), together with its contextual imputation, in support of the s 16 defence. It is difficult to see how it could have been.

14 I turn now to the defences.

Justification – imputation (a)

15 Section 15 of the Act provides that it is a defence that the imputation is a matter of substantial truth and, relevantly, that it relates to a matter of public interest. The defendant pleaded the following particulars of public interest:

(a) Personal injury liability litigation, including the proceedings brought by the plaintiff;
(b) how the courts deal with personal injury claims, including the claim brought by the plaintiff;
(c) the payment of social security benefits, including the benefits paid to the plaintiff;
(d) the reform of the laws governing personal injury liability and the impact of such reform on the insurance industry; and
(e) the reform of the laws governing personal injury liability where dangerous activities are involved.
Mr Evatt did not submit that the imputations did not relate to a matter or matters of public interest.

16 The focus of the s 15 defence was on whether the defendant had established the substantial truth of the proposition that the plaintiff is a malingerer. To malinger is “to pretend or exaggerate illness in order to escape duty or work; to feign or produce physical or psychological symptoms to obtain financial compensation or other reward”, the Oxford English Dictionary, 2nd ed, Oxford University Press, 2000.

17 Mr McClintock put to the plaintiff that a malingerer is a person who although fit, asserts that he is unfit or ill as an excuse for not working (T 132.27-28 and 33-34). He put that, at least in the period from 1992 to 1997, the plaintiff was a malingerer. This period covered the plaintiff’s two unsuccessful applications for the disability support pension, which were made at a time when he was regularly skydiving.

18 Mr Hadley gave evidence of his understanding of the meaning of the noun “malingerer” as being:

Someone that wants something for nothing, that won’t work for it. A lazy person (T 188.53-54).

19 In the course of closing submissions Mr McClintock put his case with respect to the substantial truth of imputation (a) on a wider basis than it had been put to the plaintiff:

That the plaintiff had made a voluntary decision not to work and that he had been absolutely fit in the period between 1982 and 1987.

Mr McClintock submitted that it would be fair to describe the plaintiff as being “a dole bludger” (T 220.23). In response to a query as to the distinction between the receipt of unemployment benefits and the disability support pension in the context of the issues raised by the s 15 defence, Mr McClintock submitted:

They both come down to, on the one hand the dole comes from not being able to find work, that’s the criteria, the disability pension in effect is not being able to work. They are both related to, in effect, the ability to work. Our submission in relation to the dole is that he was fit enough. Our submission in relation to the disability pension was that putting aside whatever the position is now, up till 1998 he had no disability whatsoever we would say (T 220.46-56).

20 It seems to me that there is a distinction between a malingerer and a dole bludger; the latter being a person who receives unemployment benefits without making any genuine effort to obtain employment. A dole bludger is not a person who necessarily feigns or exaggerates physical or psychological symptoms in order to escape work or duty or to obtain a financial reward. Mr Evatt did not take such a point. In closing submissions he referred to features of the plaintiff's personality that might explain his long periods of unemployment in support of the submission that, “he’s not a malingerer; he’s done his best to find work” (T 261.16-17). I approach the question of whether the defendant has established the substantial truth of imputation (a) in the way the matter was argued by the parties by considering both the proposition that was put to the plaintiff in cross-examination and the broader proposition, which is that the plaintiff is a person who has deliberately avoided work although fit enough to undertake it.

21 The plaintiff gave evidence that he left school after obtaining his School Certificate. He undertook what he described as a cadetship in metallurgy. He was employed by a firm called Metlabs as a trainee metallurgist and he undertook part-time TAFE studies, which led to him obtaining a certificate in metallurgy. He was employed by Metlabs for three years. Thereafter he worked as a metallurgist with two other firms for a further six years. At the end of this time, around 1980, he was retrenched.

22 The plaintiff said that he had not been able to obtain another job working as a metallurgist. He described the metallurgy industry as “shutting down everywhere” at this time (T 6.33-34). He sought employment in other occupations and worked for a time as a door-to-door salesman, selling fire alarms. He gave up this employment in 1982 following an incident in which he had been assaulted while he was working. He had gone to the assistance of a person who was being beaten up and was himself attacked.

23 The plaintiff said that he had not been able to find other employment after he gave up door-to-door selling. He had made applications for employment to a large number of firms, but he had not been successful. He explained his lack of success by reference to a number of factors: the downturn in the metallurgy industry; the high level of unemployment at the time; his lack of experience (in fields other than metallurgy) and his “over-education”.

24 The plaintiff has been a recipient of benefits provided by the Department of Social Security and Centrelink from some time in 1982 up to the date of the proceedings. For most of this period he has been the recipient of unemployment benefits.

25 In the mid-1990’s the plaintiff applied for and was approved for the Centrelink New Enterprise Incentive Scheme (NEIS). The NEIS was administered by an organisation called Skill Share and provided support to unemployed persons who were assessed as having the potential to establish a viable business. A successful NEIS candidate was required to prepare a business plan and thereafter he or she was awarded a one-year scholarship in which to implement it. The plaintiff submitted a proposal for the production of a skydiving magazine in DVD format. This was approved. He completed his NEIS scholarship in January 1996 and resumed receipt of Centrelink New Start benefits.

26 The plaintiff remained on the New Start allowance until he was transferred to the Disability Support pension. There was some question as to the date on which this occurred. The probability is that the plaintiff was granted a disability support pension following a medical examination that was conducted in October 1997 and the pension was backdated to the date of his application in March 1997 (exhibit R).

27 The plaintiff was involved in two motorcycle incidents in 1972. One caused him injury to his lower back. He was admitted to hospital following the accident, but discharged himself after less than one day. The plaintiff said that he suffered ongoing back problems as the result of this accident. He said that his back problem had not prevented him from obtaining employment. In chief, he gave this evidence:

Q. Were you fit to do the work if you could get a job?
A. I had problems but I was fit enough – I believe I was fit enough to work, yes.
Q. Do you mean problems with your back?
A. Yes.
Q. But you believed you could do it?
A. I couldn’t do a labouring job, you know, like digging or any thing that resulted in heavy physical but I did try even some of those (T 12.20-30).

28 The plaintiff was an active skydiver until October 1997. He started skydiving in 1969. Since that time he estimated that he has made around ten thousand jumps of which four or five thousand have been made since 1980. In the early years the plaintiff participated in competition jumps and won a number of championship events. From around 1974 he concentrated on filming jumps made by students and others at the various clubs with which he was associated. He was paid a modest fee by the club for his camerawork.

29 Prior to his application for the disability support pension in March 1997, the plaintiff had twice earlier applied for the pension. The first time was in May 1992. In this application the plaintiff assessed his injury as affecting his ability to work at sixty percent. He listed the medical conditions that affected his ability to work as “six damaged vertebra, left elbow, right shoulder, problem with hands, pins and needles and loss of strength”. He also stated:

Can’t do any heavy lifting, or even make a bed without some adjustment in how I do things. The pain sometimes is too severe to do anything I use a moderate amount of A.S.A.’s for pain relief.

He went on to say that his condition stopped him from both using public transport and driving a car, in that prolonged sitting or standing for more than two hours caused difficulty.

30 The plaintiff said that he applied for the disability support pension in May 1992 because the Department of Social Security had changed its guidelines for eligibility such that a twenty percent disability entitled an applicant to be transferred from the unemployment benefit to the pension. He believed that he suffered a disability that incapacitated him by at least twenty percent.

31 The plaintiff’s application for the disability support pension was unsuccessful. The examining medical officer assessed his disability as being five percent.

32 In May 1992 the plaintiff was skydiving regularly, making ten to fifteen jumps per week. He denied that he had been fit and well at this time. He said that skydiving is not a physically arduous sport. He did not consider his continued participation in skydiving to be inconsistent with the assertions that he had made in the application for the pension.

33 The plaintiff is also a martial arts enthusiast. He had undertaken training in a variety of different martial arts, commencing in the late 1960’s. His last involvement was in 1995 when he was practising Aikido. He gave this up when he suffered an injury to his arm. He said that he had not been doing martial arts training in 1992 because he was living in Picton and there was no martial arts facility in the area.

34 The plaintiff was a member of the Military Parachute Club at HMAS Albatross, Nowra. He injured his knee towards the end of 1995 in an accident at the military skydiving championships. He underwent surgery on the knee in early 1996 but he continued to have troubles with it and these difficulties aggravated his back problem. The 1995 accident occurred at a time when the plaintiff was working on the production of the DVD skydiving “magazine”. He said that he had been overworking and this had led to what he described as a mental breakdown. In evidence in chief he put it this way:

That was during the ’95 – ’96 period when I was working on my business plan. I worked too hard. I had major problems with my back. I had a lot of problems with my knee and problems with my federation [a reference to the Australian Parachute Federation]. It just got too much and I lost all the skin off my hands and feet. I didn’t understand what was going on but it was later diagnosed as stress related (T 16.56-58 - 17.1-4).

35 In 1996 the plaintiff made a second application for the disability support pension. The report completed by Dr Demkin, the medical practitioner who examined him in connection with this application, records that he presented with his main complaint being of back pain, which had started in 1972 and which he found to be the most incapacitating of his various difficulties (exhibit 4, Dr Demkin’s report, dated November 1996). It is to be noted that the plaintiff gave a history to Dr Demkin that included that he had injured his left knee the previous year while skydiving.

36 In October 1997 the plaintiff was involved in another skydiving accident. He said that this had caused him a variety of injuries, including traumatic brain injury to the front temporal lobe and significant injury to his middle back area (T 41). In evidence in chief he said that about one month after this accident he commenced on the disability support pension. This is consistent with the evidence, to the extent that the approval of his application appears to have followed a medical examination in October 1997, albeit the pension was backdated to an earlier date.

37 The evidence does not disclose the basis on which the plaintiff was assessed as eligible for the disability support pension in 1997.

38 The plaintiff denied that he had feigned or exaggerated his injuries in order to obtain the disability support pension. He maintained that he had sought to obtain employment notwithstanding his back injury, but that he had been unsuccessful. The defendant’s case is that the plaintiff’s evidence is inherently incredible and should be rejected and that the inference to be drawn from his continuous receipt of one form of social security benefit or another is that he is a malingerer in the sense of that term that I refer to in [20] above.

39 Before I deal with the trenchant attack that was made on the plaintiff's credibility I will refer to certain of the medical evidence, which was tendered by consent and which comprised the various reports that were prepared in connection with the plaintiff's District Court claim.

40 A report prepared by Dr Revai, a psychiatrist, comments on the results of his examination of the plaintiff carried out at the request of one of the solicitors for a defendant in the District Court proceedings. It is dated July 2001 and includes the opinion:

Mr Dent, I believe, is paranoid and I will highlight this when commenting on the reports that you forwarded. I do not believe that he is psychotic.

Dr Revai set out passages from a number of reports, together with extracts of letters written by the plaintiff. The latter includes allegations of misconduct made by the plaintiff against medical practitioners, the Manager of the Skill Share Centre and a member of the Australian Parachute Federation. In Dr Revai’s opinion, this material, taken with the history obtained by Dr Wenden, a psychiatrist, in January 1998, is supportive of his conclusion that the plaintiff suffers from a long-term personality disorder, which retards him from returning to the workforce. He considered that the plaintiff required psychiatric treatment, but did not believe this arose as a consequence of the October 1997 skydiving incident.

41 I will deal with each of the challenges that Mr McClintock made to the plaintiff's evidence in turn. One related to his of his use of marijuana. The plaintiff said that he was “against drugs and alcohol” (T 85.55). He was asked what his attitude had been in the 1980’s and 1990’s to marijuana. He said, “I was actually recommended it by a doctor to deal with my back pains” (T 86.1-2). Mr McClintock came back to this topic, putting to the plaintiff that he had given a history to a doctor of having been a heavy user of marijuana. The plaintiff denied this was the case. His attention was directed to the history recorded by Dr Patrick in his report dated 29 May 2001 (exhibit G, p. 59). The plaintiff commenced to read the report aloud. There followed the following exchange:

Q. No, read it to yourself, not out loud.
A. I won’t remember it.
Q. I’m sorry?
A. I can read it and I won’t remember it, it’s like more than my memory can store.
Q. Mr Dent, are you seriously suggesting that you can’t read six lines of a doctor’s report and recall it?
A. Yes (T 90-38-47).

Mr McClintock took the plaintiff through the history recorded in the report and obtained his assent to the proposition that he had told Dr Patrick that he had used cannabis at least weekly or more over the past twenty-five years to 2001. The plaintiff said that he did not consider this to be heavy usage of the drug. He said that he had commenced taking marijuana and continued to do so over this lengthy period on advice from a medical practitioner that it was more effective than prescribed medication, such as Indocin or Ibuprofen, which might have a bad effect on his digestive system.

42 Mr McClintock submitted that the admission of regular use of marijuana over this period was, itself, a matter affecting the plaintiff's reliability. There was no evidence of the effect of long-term marijuana use on cognitive functioning. There were features of the plaintiff's evidence that raised issues as to his reliability, but I do not include among them his admission to having regularly used marijuana over a period of twenty-five years. I did not take his evidence that he was “against drugs and alcohol” as necessarily inconsistent with his admission of marijuana usage in the circumstances that he described, namely, that his use of the drug was on medical advice.

43 A second aspect of the challenge to the plaintiff’s evidence arising out of the cross-examination that I have set out at [41] above was his claim to be unable to keep in his mind the contents of six lines of type for the short interval between reading it and answering a question directed to it. In Mr McClintock’s submission, this evidence was incredible. This was not the only occasion when the plaintiff gave evidence of this character. He was cross-examined about an inconsistency between his evidence in these proceedings – that he had been aware of the hooks inside the plane – and evidence that he had given in the District Court proceedings – that he had no knowledge of the hooks. In the course of this challenge Mr McClintock put to him:

Q. You see the next question was “did you know there was a hook on the plane?”
A. No, I done very few jumps out of the plane. Yes, well I may have misheard the question. What I meant to say was, did you know about – I’ve already said, it’s a brain thing, it’s a brain thing (T 98.44-49).

His attention was directed to a question asked of him in the District Court, “You had, you say, before the jump had no knowledge of the hook?” to which he responded:

Well that’s like sort of one of those double negatives which can cause people, especially someone who has cognitive problems and can’t string together as conceptual continuity issues” (T 99.4-6).

The plaintiff went on to give, a somewhat argumentative response to the proposition that he had given evidence in the District Court that he did not know about the hooks. He concluded this response by observing:

The confusion is just here, pure and simple cognitive processes and not understanding questions that have double negatives in them (T 99.23-25).

Mr McClintock then put:

Q. Mr Dent, if you had told Mr Evatt in the District Court proceedings that you did not know of the existence of the hooks on this plane, that would have been untrue wouldn’t it?
A. Now I’m confused because your question is too long, could you shorten it down for me please?

44 The plaintiff presented as an unusual individual. At times his answers were rambling. This was particularly evident during the course of his evidence about his allegations of sexual harassment by the Manageress of the Skill Share program (T 115-116). He volunteered other allegations about persons associated with the Skill Share program that were hard to follow. In like vein was his evidence about a letter that he had written to Dr Kolak in August 2002, in which it was suggested he had accused her of trying to pull his pants down (at T 113.36-53).

45 Mr McClintock submitted that I would find the plaintiff to be a fabulist. He pointed to the plaintiff's evidence that at the time of his mental breakdown, he had, “lost all the skin off my hands and feet” (T 17.2). The medical evidence established that the plaintiff had a persistent rash including on the dorsa of his feet which was consistent contact dermatitis and for which he received specialist medical attention over a period of months. I did not consider the plaintiff’s rather florid account of loosing all the skin off his hands and feet supported the submission.

46 Mr McClintock submitted that the plaintiff’s evidence was deliberately untruthful in a number of respects. He referred to the plaintiff’s evidence of the circumstances in which he left the NEIS scheme. Mr McClintock submitted that the plaintiff had given evidence of leaving the NEIS scheme because of the accident, whereas he had completed it by 1995/1996 (T 13.52-54). This seemed to me to be a misconception of the effect of the plaintiff’s evidence. The plaintiff said that he had been on the scholarship [a reference to the NEIS scheme] and that he “did the course for a year” (T 13.45-46). He was then asked (at T 13.48-49):

Q. Well, what happened, did you end up getting the job or the award or what?
A. I was in the process of – yeah, no, I finished the course, I was on my way to earning, getting the business started and was in the process of gathering footage when I had the accident.

47 As appears from the above, the plaintiff maintained that he had completed the NEIS course. This is not inconsistent with the evidence that he undertook the NEIS program in 1995 and that by January 1996 he had applied to Centrelink to resume the New Start Allowance, having completed it (exhibit R). I did not understand the plaintiff to be claiming that he left the NEIS program because of the accident, but rather that he had been gathering video footage for the DVD magazine at the time of the accident.

48 Next, Mr McClintock submitted that the plaintiff's evidence about the number of skydivers with whom he had collided in the October 1997 accident was deliberately untruthful. It is necessary to refer to his evidence of the circumstances of the October 1997 accident in order to deal with this and related submissions.

49 The plaintiff gave evidence that he was one of two cameramen filming a group of twenty skydivers. He had a still camera and a video camera attached to his headgear. When the plane reached around 14,000 feet the rear hatch was opened. It had a locking mechanism involving four hooks, which held the hatch in the closed position. The plaintiff was the first to jump out of the plane. He executed a backwards jump. In the moments before jumping he held onto a strap, located inside the plane with one hand and balanced on the balls of his feet on the edge of the base of the hatch. He said that by exiting from the plane in this way he was able to obtain lift from the current of air under it. The skydivers exited from the plane by executing vertical jumps. The plaintiff explained the dynamics are such that it is possible for a cameraman skydiver, jumping backwards and catching the air current, to freefall from a position above divers who jump after him in a vertical dive. The plaintiff said that as he launched himself the harness of his leg strap became hooked on one of the hooks. The skydivers jumped from the plane in two groups of ten. The first group collided with his left leg, causing him to pivot on the hook and bring him into contact with the second group. All of this happened in the space of about two seconds. The force of the collision with one or more of the skydivers was sufficient to tear through the webbing of the harness. He said that he had been unconscious for a brief period. He fell to between 3,500 and 4,000 feet and then opened his parachute. He was confused and had difficulty controlling his canopy on landing.

50 A copy of the videotape, recorded by the camera attached to the plaintiff's headgear, showing his exit from the plane and the descent of the twenty skydivers, was in evidence, as was a copy of the videotape recorded by the second cameraman.

51 In evidence in chief the plaintiff said that he had been hit by three, maybe four of the skydivers. In an application for a grant of Legal Aid, dated 20 July 2000, made in connection with the District Court proceedings the plaintiff's then solicitors, Foulsham & Geddes, stated:

Upon becoming caught on the hook, our client was then impacted upon by a mass of about ten (10) skydivers who exited the aircraft, followed by a further ten (10) a couple of seconds later.

52 In cross-examination the plaintiff’s attention was directed to his solicitors’ assertion. He said that he had never claimed to have been struck by all twenty of the skydivers who exited the plane after him. The letter from Foulsham & Geddes attached a copy of a statement made by the plaintiff. To my mind there is no inconsistency between the solicitor’s letter and the statement attached to it, nor is the account given in the statement inconsistent with the plaintiff's evidence. The statement records (paragraph 18):

The tailgate is about six to eight feet wide and all twenty-two people have got to go through it on exit. I was immediately hit by a mass of ten skydivers (all holding each other together) and then an instant later by the next connected mass of ten people (much faster moving since they had run flat out from the front of the aircraft) to go through the door as close as possible to the first group which they link up with. The first ten people crashed through my left leg tearing my groin, injuring my left arm and spinning me around, the second group of ten skydivers slammed into my back and head tearing through my 30000 lb leg strap and knocking me unconscious; this second group hit me like a freight train and carriages (there were at least three definite high speed skydivers who impacted me machine-gun like).

53 In his evidence in chief the plaintiff described the skydivers in the group standing next to him as “sort of connected so they act as one body, they are about a tonne or thereabouts so that mass of skydivers collides with me – it is not an individual skydiver, it is the mass of skydivers” (T 24.4-7). When asked how many individual skydivers in the first group hit him he put it at maybe two, maybe three about two” (T 24.11-12). He was next asked:

Q. Was that the same in the second group?
A. No, the second group, they are a fast moving group and they are two lines of skydivers so there is like five skydivers, two lines of five and I got hit by, by my estimations, four – three, maybe four of them” (T 24.14-19).

54 Next, it was submitted that the plaintiff had deliberately lied about the circumstances of the accident and the injuries that he had suffered as the result of it. This contention was based on the submission that the videotape recordings of the jump made by the recorder attached to the plaintiff's headgear and by the second cameraman were inconsistent with an acceptance of his evidence. I do not find that either of the video recordings insofar as it depicts the exit of the plaintiff or of any of the skydivers from the plane to be inconsistent with his evidence. Mr McClintock’s principal submission was that the videotape recording taken by the camera attached to the plaintiff's headgear appears to have been filmed intentionally, in that it captures all twenty divers descending in formation during their freefall. I have concluded that I should not draw the inference that the plaintiff lied about the accident by reference to the recording. The recording at the point at which the plaintiff says he pivoted as the result of impact with one or more of the skydivers seems to me to be consistent with such an event. The plaintiff’s evidence is that after he was freed from the hook, and after he recovered consciousness he had stayed with the skydivers, opening his parachute at between 3,500 and 4,000 feet. The camera, which is attached to the top of his headgear, was activated throughout this period. The plaintiff was in freefall above the twenty skydivers. I do not conclude from the fact that the videotape records all the skydivers in formation that the plaintiff was deliberately filming them.

55 The next matter that Mr McClintock relied upon as evidencing deliberate dishonesty was the plaintiff's evidence concerning the number of jumps he had done after the October 1997 accident. In chief he said this:

Q. You were injured in October 1997?
A. Yes.
Q. How many – did you do any parachute jumps after that accident?
A. Yeah, I – about October; so November, December, January, February.
…
Q. I thought you qualified it. The question was, did you do any more parachute jumps after 26 October ’97?
A. Yes.
Q. How many?
A. Six.
Q. Six, under what circumstances?
A. I was cameraman for the Australian World Champion Skydiving Team and I turned up despite the fact that they assumed I wouldn’t turn up (T 40.15-21, 40.30-40).

There was further evidence on this topic in chief:

Q. Have you done any more skydiving since?
A. No.
Q. Since ’97?
A. Since that last six jumps in ’98.
Q. When was that in ’98?
A. February or March.
Q. So no parachute jumps from 20 October or February or March ’98 then six; is that right?
A. Yes.
Q. And then none?
A. Yes (T 41.4-18).

56 In cross-examination it was put to the plaintiff that he had given evidence of jumps in November 1997, December 1997, January 1998 and February 1998. His attention was directed to that part of the transcript that I have set out at T 40.15-21. He responded, “I know it’s in the transcript. I don’t believe I said it. I could barely walk in those months” (T 147.28-30). He went on to say that the jumps executed after the October 1997 accident were in February or March 1998.

57 I did not understand the plaintiff's evidence at T 40.20, “I – about October, so November, December, January, February”, taken in the context of the whole of the evidence in chief on this topic to be fairly understood as an assertion that he had executed jumps in each of October, November, December 1997 and January and February 1998. In light of his further evidence in chief at T 41.7-15 I do not consider that the plaintiff’s response at T 40.20-21 supports the submission that he was deliberately untruthful.

58 The next matter relied on by Mr McClintock as evidencing deliberate untruthfulness was the plaintiff's evidence of the changes in his social life. In evidence in chief he said that he had been invited to functions and parties prior to the broadcast and that following it he had no social life (T 61). In cross-examination he was asked if he recalled giving a history to a doctor that he was not a social person. He responded that he was socially inept. The cross-examination continued:

Q. That’s always been the case?
A. Very strange upbringing, not inclined to be part of the normal social scene. I don’t go to pubs. I don’t enjoy parties particularly.
Q. That has always been the case?
A. Yes, it is (T 150.22-28).

59 I do not consider the plaintiff’s evidence that he had been invited to functions and parties prior to the broadcast to be inconsistent with his acknowledgment of his social ineptitude.

60 Some of the challenges to the plaintiff’s credibility seemed to me to be without substance and to fail to take into account features of his personality that are commented on in a number of the medical and psychological reports. The rambling quality of some of his answers did not impress me as evidencing a deliberate endeavour to avoid answering the question asked of him, but rather to be consistent with his general prolixity that is evidenced in the letters extracted in Dr Revai’s report. I note that Dr Buckley, who examined the plaintiff in May 2001, commented that he had spoken to him over an extremely long period and that the plaintiff's history was “extensive and circumlocutory”. There were features of the plaintiff’s presentation that were consistent with the suggestion in the medical and psychological reports that he may suffer from some form of psychological or psychiatric difficulty.

61 The plaintiff's evidence concerning his knowledge of the hooks in the rear section of the plane on the date of his accident was inconsistent with the evidence that he gave before Ainslie-Wallace DCJ. The topic is one of significance, which makes the inconsistency, notwithstanding the interval of time between the date he gave evidence in the District Court and the present hearing, surprising. It demonstrates that he is unreliable, but, taking into account the matters I have noted above, I did not conclude that his evidence was deliberately untruthful.

62 In the statement submitted with the application for Legal Aid by Foulsham & Geddes the plaintiff gave an account of his employment history:

53. I had a bike accident in 1972 and injured my lower back which caused problems. I have problems with L3, L4 and L5. This has certainly been aggravated by this recent “accident”.
54. I have had troubles in the past doing labouring jobs because of my back.
55. I went onto the dole and was then eventually pushed onto a sickness pension. I have been unemployed effectively since 1979, although I have had some small periods of employment.
56. In the early 1980’s I made a decision that I was going to dedicate my life to skydiving and camera work. I initially started doing some work with the Newcastle Sport and Parachute Club. I then came down to the Sydney Skydivers at Picton. I looked at the whole thing and decided to develop a business. I only really received whilst at Picton only enough money to live on and barley (sic) the recovery of the costs involved in his (sic) cameras parachute.
57. In 1996 I was put onto a sickness and disability pension and I remain on this benefit; this was done or to cover up problems within the local DSS rather than because of my injuries … that’s an equally documented (experience) being dealt with by Sen. Martin Ferguson.

63 Mr McClintock submitted that paragraph 56 of the plaintiff’s statement is eloquent of him having made a voluntary decision to pursue his interest in skydiving in the early 1980’s and that thereafter he had not made genuine endeavours to obtain employment. Allied to this was the submission that the plaintiff, in fact, has been in employment as a video cameraman recording parachutists’ jumps. Support for such a finding was to be found in the plaintiff's admission of receiving payment from the clubs for the films that he made and in the evidence of Mr Webster. Mr Webster gave evidence of the plaintiff’s good reputation. He was acquainted with the plaintiff through their mutual interest in skydiving. He was aware in the period 1982 to 1990 that the plaintiff was filming skydivers and that he had been paid for this activity by the club.

64 The imputation that is to be justified is that the plaintiff is a malingerer. Evidence tending to suggest that he was in receipt of some income from his role filming skydivers in the period 1982 to February 1997, when he was in receipt of unemployment benefits (or payments under the NEIS scheme), does not impress me as tending to establish that he was a person who, although fit, was asserting unfitness as an excuse for not working.

65 The plaintiff appears to have considered that the decision to approve his application for the disability support pension may have been made for an improper motive associated with covering up his revelations of sexual impropriety involving a senior employee of the Skill Share organisation. This might be thought to provide some further support for the observations made by Dr Revai that I have set out at [40] above.

66 The reasons that the plaintiff was assessed in October 1997 as eligible for the disability support pension are not in evidence.

67 The 1992 and 1996 applications for the disability support pension were made by the plaintiff on the basis that he had physical symptoms that compromised his ability to obtain employment. He has complained over a number of years of back pain arising from the 1972 motorcycle accident. He has also complained of other physical symptoms arising from that accident and the 1995 skydiving accident. The circumstance that in 1992 he was assessed as five percent impaired and that in 1996 another medical practitioner assessed him as ten percent impaired, resulting in the rejection of each of his applications, does not, establish that he feigned physical or psychological symptoms in order to avoid work and/or receive the disability support pension.

68 I have dealt with the submissions that Mr McClintock developed concerning the plaintiff’s reliability and credit at some length since they were prominent in the way in which he put the defendant’s case. While I do not find that the plaintiff’s evidence was deliberately untruthful, I accept that features of it and of his presentation made him a witness of doubtful reliability. It does not follow from this that the defendant has established the substantial truth of imputation (a). The fact that the plaintiff was capable of skydiving does not prove that he feigned symptoms of incapacity in support of his applications for the disability support pension. As noted earlier, the plaintiff volunteered to Dr Demkin in 1996, at the time of his second application for the pension, that his 1995 injury was caused in a skydiving accident. The evidence of the May 1992 application falls short of establishing that the plaintiff feigned his symptoms.

69 I do not consider that the plaintiff’s statement of his intention to dedicate his life to skydiving and camera work evidences a voluntary decision by him not to make efforts to obtain employment.

70 A letter written by a special placements officer with the Commonwealth Employment Service addressed to a social worker in the Department of Social Security on 21 June 1998 concerning the plaintiff (who is also known as Lawrence Rawcliff) records:

As requested I interviewed Mr Rawcliff today, he has been registered with the CES since 16.3.82. Mr Rawcliff lives in a relatively isolated area and has no private transport, which greatly inhibits his chances of securing work. He appears to be particularly interested in youth and welfare work, which he has a lot of voluntary experience in. He is only able to work in fairly sedentary occupations due to his back injury he incurred in 1972 and osteoarthritis in his right shoulder.
Mr Rawcliff is a qualified metallurgist but has not worked in that area since 1981, and states his skills would be outdated. I discussed ATP courses, the Community Volunteer Program and wage subsidy programs with him, but until he can sort out his transport problems it would be difficult for him to attend (exhibit T).

71 Katherine Martin, a clinical neuro psychologist, in a report dated 8 May 2001 expressed the opinion that the plaintiff has rather unrealistic and grandiose ideas about his career prospects, which predated the October 1997 accident. Her comments in this respect appear to be a reference to the history that he gave of his work as a skydiving cameraman.

72 Mr McClintock submitted that skydiving is a sport requiring the exercise of skill and judgment. It was a sport at which the plaintiff appeared to have excelled. In his submission, the plaintiff's ability to engage in skydiving and martial arts training in the years between 1982 and 1997 demonstrated that he was fit. In Mr McClintock’s submission, “if he can’t get a job no one could” T 220). To my mind this submission failed to take into account the features of the plaintiff's personality and psychiatric or psychological condition that might cause him difficulty in obtaining employment. The plaintiff said that he had endeavoured to obtain employment and that he had been unsuccessful. Mr McClintock submitted that this evidence was inherently improbable. I did not find it to be so.

73 The defendant has failed to establish the substantial truth of imputation (a).

Contextual truth – s 16

74 It is necessary for the defendant to establish both that its contextual imputation relates to a matter of public interest and that it is substantially true. Mr Evatt did not take issue with the characterisation of the contextual imputation as relating to a matter of public interest. I turn to a consideration of whether the defendant has established the substantial truth of the imputation that the plaintiff brought a ridiculous liability claim.

75 The proceedings commenced by the plaintiff in the District Court claimed damages for personal injury against the Hunter Valley Tandem & Skydiving Club Incorporated and four other defendants. The claim was pleaded in negligence, breach of statutory duty and pursuant to s 75AD of the Trade Practices Act and/or under the Civil Aviation (Carriers Liability) Act 1959.

76 The plaintiff's ordinary statement of claim was filed by solicitors acting on his behalf. His solicitors sought and obtained a grant of Legal Aid on his behalf. Counsel’s opinion was obtained in support of the application. The opinion forms part of exhibit O. Counsel advised that the plaintiff had reasonable grounds to commence proceedings against the five defendants and that he had reasonable prospects of success.

77 The plaintiff was represented by counsel at the trial before Ainslie-Wallace DCJ. On the fifth day of the trial the proceedings were settled upon terms that included, without admission of liability, the first defendant paying to the plaintiff the sum of $25,000.00, together with costs.

78 Taking into account these matters, I had difficulty in seeing how the defendant might establish the substantial truth of the imputation that the plaintiff brought a ridiculous liability claim. Mr McClintock submitted that it was apparent from a passage in the transcript in the District Court proceedings that “Judge Ainslie-Wallace took a pretty dim view of the plaintiff here” (T 224.18-19). He referred to a passage in the transcript at T 181:

HER HONOUR: Just have a seat in the back of the court if you will Mr Dent. I just made some remarks to counsel which would bear repeating. The outcome of litigation is never a foregone conclusion and nobody can ever say how a case will turn out especially not the lawyer, I haven’t heard enough of this case to have formed a view one way or the other but one thing I’m absolutely certain of that attempts should be made to settle this matter if possible without taking the risk that the litigation may not turn out the way everybody expects, I’m not directing that at you particularly Mr Dent but you are in court, I direct that all the lawyers, they know that no one can ever predict how litigation is going to end so I urge everybody to make a serious attempt to reach a compromise that may not be what everybody wants but it is better the outcome you know than the outcome you don’t (exhibit D, at T 181.6-23).

79 I do not draw from her Honour’s remarks the inference that Mr McClintock invited me to draw. Had her Honour expressed a view consistent with the submission, it would not serve to establish that the plaintiff had brought a ridiculous liability claim.

80 The second matter that Mr McClintock relied on as tending to establish the substantial truth of the imputation was that the case had been fixed to run for a lengthy period. He put that there had been probably another couple of weeks in it and that the sum for which the plaintiff settled it was minimal. This does not serve to establish that it was a ridiculous liability claim. It was also submitted that the bringing of the claim was ridiculous because of the contrast between the plaintiff's evidence of what had happened and the video evidence (T 224.35-50). I have dealt with this contention earlier in these reasons. I note that exhibit G includes a three-paged typewritten document that appears to be a proof of evidence of a proposed witness named Jason Clark. For present purposes it seems to me open to draw the inference that the plaintiff had available to him some evidence, independent of his own evidence, concerning the circumstances of the accident.

81 The final matter identified as tending to establish the truth of the contextual imputation was that the claim brought by the plaintiff included a claim for economic loss that was ultimately not pressed. The imputation is that the plaintiff brought a ridiculous liability claim. The circumstance that he may have abandoned a claim for economic loss does not impress me as capable of establishing that the bringing of the liability claim was ridiculous.

82 The plaintiff has not established the substantial truth of the contextual imputation upon which it relies.

Qualified privilege

83 The defendant pleaded the defence of qualified privilege at common law and pursuant to s 22 of the Act. On the hearing Mr McClintock disavowed any reliance on the defence of qualified privilege at common law (T 203.33-34).

84 Section 22(1) provides:

22(1) Where, in respect of matter published to any person:

(a) the recipient has an interest or apparent interest in having information on some subject,

(b) the matter is published to the recipient in the course of giving the recipient information on that subject, and

(c) the conduct of the publisher in publishing that matter is reasonable in the circumstances,
there is a defence of qualified privilege for that publication.
(2) For the purposes of subsection (1), a person has an apparent interest in having information on some subject if, but only if, at the time of the publication in question, the publisher believes on reasonable grounds that that person has that interest.

85 In Mr McClintock’s submission, the subject or subjects of the matter published: liability claims; reform of the law of negligence and proceedings in court were matters of public interest. Listeners to the Ray Hadley Morning Program, or a substantial number of them, were said to have had an interest in receiving information on these subjects. A broad construction has been placed on the words “an interest” for the purposes of s 22(1)(a): Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 358-9. Mr Evatt did not contend to the contrary. In his submission, the defence failed because the conduct of the defendant in publishing the matter was not reasonable in the circumstances. The considerations bearing on reasonableness for the purposes of subsection (1)(c) are discussed in Morgan v John Fairfax & Sons Ltd (1990) 20 NSWLR 511 per Hunt AJA. They include taking reasonable care before publishing to ensure that the conclusion is correct and, where appropriate, by making proper enquiries and checking on the accuracy of sources.

86 Ray Hadley gave evidence that as at June 2002 his morning program was broadcast between 9:00 am and noon. He commenced his day by reading the Sydney Morning Herald, The Telegraph, the Australian Financial Review and then by consulting a news wire service and the Internet. A production meeting was held at around 8:15 am.

87 Mr Hadley recalled reading the Herald article on the morning of 12 June. He considered that Ms Lamont had a reputation as an accurate journalist and he believed the article to be accurate. He did not make any attempt to contact Ms Lamont or any other person at the Sydney Morning Herald in order to check the accuracy of the article. Mr Hadley did not make any attempt to contact Mr Dent in order to give him the opportunity of giving his version of events. He said that it would stand to reason that his production staff would try to check the source of the story and try to find Mr Dent. He had no knowledge that any member of the production team had in fact done so. No evidence was led to establish that any such enquiry had been made.

88 Mr McClintock acknowledged that generally a defendant may only discharge the burden of establishing the reasonableness of its conduct, for the purposes of the s 22(1) defence, if it is able to establish that it had made enquiries of the person defamed (T 214.48-52). In his submission, the circumstances of this case were unusual and were broadly analogous to those in Barbaro v Amalgamated Television Services Pty Ltd (1989) 20 NSWLR 493. Taking into account the demands of conducting a morning radio program, involving discussion of issues of the day, in his submission it was reasonable for Mr Hadley to take the Herald article at face value and repeat it without enquiry of either Ms Lamont or the plaintiff. The Sydney Morning Herald is a reputable newspaper and Ms Lamont enjoys a reputation for accuracy as a journalist. She was reporting proceedings in open court and there was no reason to think that her report of court proceedings would be other than accurate.

150 The plaintiff said that apart from the two phone calls he had received on the day of the broadcast, “a few” other people had made comments on it. He was asked what had been said to him and he responded:

Derogative comments, laughed at me “you’ve been on the dole since 1972”. You know, like, “you’re just a bludger” basically and it was said to me by someone who had an axe to grind, you know (T 82.25-28).

151 The plaintiff gave evidence that he had not been invited to social functions since the broadcast. I have referred earlier to the plaintiff’s evidence that he has always been socially inept. He agreed that he had been black banned by the Australian Parachute Federation over an incident arising out of a complaint that he made about the conduct of another member of the Federation. This event no doubt contributed to him being isolated from a number of persons associated with the skydiving community. The evidence did not establish that the plaintiff has, in fact, suffered any curtailment in his social life as the result of the publication.

152 The plaintiff called two witnesses to his good reputation. Ray Webster had been the chief parachute instructor for the Australian Parachute Federation. He had frequent contact with the plaintiff in the period from 1973 until 1990. Since that time he has seen him from time to time and maintained telephone contact. Mr Webster gave evidence of the plaintiff’s reputation for reliability and honesty.

153 Craig Williams is a computer systems engineer. He has known the plaintiff since about 1994 or 1995. Mr Williams was working at a computer shop in Mittagong when the plaintiff came to the shop to hire a computer. Mr Williams set up the computer for the plaintiff and from that time on had regular contact with him, until he moved to Sydney in 1997. From 1997 he had maintained contact with the plaintiff, seeing him every three to four weeks. Mr Williams described the plaintiff as a person held in high regard as a skydiver and as a “very moral and ethical person, hardworking, honest” (T 164.35-37).

154 The law presumes that a person who has been defamed suffers injury to his reputation: Bickel v John Fairfax & Sons [1981] 2 NSWLR 474 at 483. I accept that the plaintiff suffered considerable hurt and distress on hearing the broadcast particularly taking into account the strength and sustained nature of the attack. Taking into account these considerations and the vindication of the plaintiff’s reputation consistently with the provisions of s 46A(2) as explained by Hayne J, I assess the plaintiff’s damages at $65,000. There will be a verdict and judgment for the plaintiff.

155 The Act makes provision for costs in proceedings for defamation under s 48A. The matter may be listed by arrangement with my Associate for the determination of interest and costs.

ORDERS


1. Verdict and judgment for the plaintiff in the sum of $65,000;

2. The proceedings may be re-listed by arrangement with my Associate on three days’ notice for submissions on interest and costs.


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