Carson v John Fairfax & Sons Limited; Carson v Slee

• ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S23 of 1992
B e t w e e n -
NICHOLAS RODERICK CARSON

Applicant

and
JOHN FAIRFAX & SONS LIMITED

Respondent

Office of the Registry

Sydney No S24 of 1992
B e t w e e n -
NICHOLAS RODERICK CARSON

Applicant

and
JOHN SLEE and JOHN FAIRFAX &
SONS LIMITED

Respondents

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J
GAUDRON J

MCHUGH J

Carson(2)

25/8/92

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 25 AUGUST 1992, AT 10.16 AM

MR T.E.F. HUGHES, OC:

May it please the Court, in each of

these appeals I appear with my learned friends,
MR G.O'L. REYNOLDS and MR T.D.F. HUGHES, for the
appellant who was the plaintiff below. (instructed
by Blake Dawson Waldron)

MR D.F. JACKSON, OC:

May it please the Court, I appear with

my learned friend, MR S.D. RARES, for the
respondents in each appeal. (instructed by
Mallesons Stephen Jaques)

MASON CJ: Yes, Mr Hughes.

MR HUGHES:	Your Honours, my first task is to seek the Court's leave to file an amended notice of appeal.
That amended notice of appeal has been left with
the Registry, and I understand it is in
Your Honours' papers.

MASON CJ: Yes, we have it.

MR HUGHES:

I also understand that there is no objection to

the amendment from my learned friends. I should also say that my learned friends wish to file an
amended notice of contention to add a further
ground, and there is no opposition to that.

MASON CJ: By consent, leave granted to the parties to amend

respectively the notice of appeal and the notice of
contention.

MR HUGHES: If the Court pleases.

MR JACKSON:

Your Honours, may I hand the Court crier the

copy of the amended notices of contention.

MASON CJ: Yes

MR HUGHES:

May I now hand up now, Your Honour, ten copies

of the outline of our argument in support of the
appeal.

Carson(2)	2	25/8/92
MASON CJ: Yes, Mr Hughes.

MR HUGHES:

May it please the Court. As Your Honours will

have seen from the outline, two actions for

defamation were tried together. They arose from
articles published in the Sydney Morning
Herald - - -

MASON CJ:

We have read the judgments in the Court of

Appeal, so we know the history of the case.

MR HUGHES:

That will help me to condense my submission, so

I am obliged to Your Honour. The first article is at page 174 of volume 1 and the second at 182. A
noticeable feature, in our submission, about the
treatment of these two cases by the Court of Appeal
is that a majority of Their Honours, namely
in verdict of the jury in the first action was not
Mr Justice Mahoney dissent, and
manifestly excessive. That point is referred to in
paragraph 12 of our submissions.
Moreover, Your Honours, Mr Justice Mahoney went further than just saying that the award of
damages in the first action was not manifestly
excessive. His Honour expressed the view that each
verdict, having regard to the objectives that a
verdict in a libel action is designed to achieve,
was not inappropriate to the injury done to the
plaintiff.
So, we say that at the outset should be regarded as a point of importance particularly in
considering the correctness of the Court of
Appeal's decision in setting aside the first
verdict, 200,000, and sending that case down for a
new trial on damages.
Your Honours, we put in the forefront of our

argument in the appeal the treatment by the

majority in Coyne on this point, there being no
dissent, though those of Your Honours who did
dissent in the ultimate result, of the way in which
an appellate court should review a jury verdict in
an action for damages for defamation. In Coyne
that subject is dealt with by
Your Honour Justice Toohey at page 239. The
passage really begins at page 238, and I will not
read the whole of this section of Your Honour
Justice Toohey's judgment in the interest of
brevity, but if one goes to the bottom of page 238
Your Honour said this:
The real point is, as Lord Hailsham

pointed out, that "the law makes the jury and
not the judiciary the constitutional

Carson(2)

25/8/92

tribunal". There will be awards by juries
that are so large or so small that there is an
instinctive reaction by the appellate court
that something must have gone wrong in the
jury's deliberations. There are some, though
not many, reported decisions in which that has
been the reaction of the appellate court. But
that is not to say that an appellate court
should begin with its instinctive reaction and
test the award against that. Rather, the
court should first look at the evidence,
assume that the jury took a view of the
evidence most consistent with the verdict it
returned, and then ask whether, in the light
of that evidence, the award is sustainable.

I need not read further. Your Honours, we venture
to say that the majority judges in the Court of
Appeal departed from that authoritative view. We
seek to demonstrate that proposition by reference
to specific passages in the reasons for judgment of
each of Their Honours who were in the majority.
That point is really embraced in part in the ground of appeal in the amended riotice of appeal in each
case, which is ground 2.l(e) where we set out three
specific passages in the reasons for judgment of
the President. The first one is at page 469 where
His Honour remarks:
But it was not the case for the largest verdict for general damages in defamation in
the history of this State and of this country.
I find it hard to accept that these are the
most grave imputations ever yet to have come
before an Australian court -

Also at page 470 where His Honour attributes
special relevance to the supposed fact:
that Mr Carson would have been willing to
refrain from any proceedings at all in the

respect of the first article if only two additional matters had been added to the
apology which was published.

MR HUGHES: That approach, we venture to suggest, is error

and we respectfully criticize the President's
judgment, particularly on the score that, as
Your Honours will have seen from the passage that I have read from page 470, at line B, volume 2 of the
appeal papers, His Honour took into account as a
discounting factor the fact, as he attributed it to
Mr Carson, that Mr Carson would have been prepared
to refrain from suing had he received an adequate
and early apology.

Carson(2)

25/8/92

Your Honours, to have said that is, with very

great respect to the President, disregarding the
statement of the correct approach propounded by
Your Honour Justice Toohey because what His Honour
is there doing is failing to give full weight to
the jury's verdict on the footing that the jury
were entitled to take the most favourable view of
the case that was open on the evidence. That is,
we would venture to suggest, a major criticism to
be made respectfully of His Honour's judgment.

But of course perhaps even more

fundamental - and this point is developed in the
outline and I need not expatiate upon it at any great length - His Honour treated two verdicts,
based on two distinct wrongs, wrongs committed a
year apart, each attended with gross aggravation,
as if it was a matter for one verdict based on one

wrong. The pinnacle of His Honour erroneous
approach, and we say this with respect, is to be
found in that passage in His Honour's judgment
where, after referring to some unreported case in
the Court of Appeal, Canterbury Hospital v
Cappelletto, His Honour expresses the view that given the verdict in that personal injuries case it
seemed inappropriate that Mr Carson should get a
verdict which was 2.4 times as large as the other
plaintiff. If one does simple mathematics on the
factor of 2.4, 600,000 is exactly 2.4 times
250,000.
Your Honours, there are other passages in

His Honour Mr Justice Kirby's judgment where
His Honour refers again and again to the verdict.

DAWSON J: You are not suggesting you treat the two matters

entirely separately, are you, Mr Hughes. To the
~xtent that the plaintiff's reputation suffered by
the first defamation, it must have a bearing on the
second?

MR HUGHES:

It has a bearing in this way - and I am obliged

to Your Honour for anticipating something I was
going to say later but can be as well said now in
specific response to Your Honour's question: no,
there cannot be a total divorce of the two cases, particularly - perhaps only - for the reason that
as the result of a serious wrong - and I shall
avoid using extravagant adjectives - done to
Mr Carson by the publication of the first article
and its attendant circumstances, the second article
becomes an even graver injury.

DAWSON J: Well, it depends how you look at it.

MR HUGHES:

Yes, because he, having been unjustly defamed by

the first article, needs a greater vindication to

Carson(2)

25/8/92

make it appear to the community that the second
article is also a great wrong.

DAWSON J: The other way is that his reputation had been

done so much damage by the first article, there was
not much left to do damage to by the second.

MR HUGHES:

But, Your Honour, to adopt that approach would,

in our respectful submission, not be permissible
because, first of all, it would be allowing the
defendant to call in aid its own wrongdoing, to
reduce the full measure of damages that would have
been available had the first article never been

published and the second article published. Now,
the plaintiff is entitled to say the defendant
cannot, as it were, pull itself up on the
bootstraps of its own tortious act.
The second point is a point that we would put

to the Court for consideration on the basis of
Dingles case in the Lords - I think it is on our
list.

MCHUGH J: It is in (1964) AC.

MR HUGHES:

(1964) AC 371. It is on our list, I beg

Your Honour's pardon. I need not detain
Your Honours by reading passages from the speeches.
The essential principle in Dingle's case, well
recognized since, is that a defendant cannot, in
mitigation of damage, said to flow from the
publication for which that defendant is
responsible, call in aid other publications by
third parties which, either antecedently to the
publication complained of, or between that
publication and trial, are said to have diminished
the plaintiff's reputation.

McHUGH J: The 1958 New South Wales Defamation Act had a

provision which enabled ev~dence to be given of
what the plaintiff had recovered in previous

actions, but is there any comparable provision in
the 1974 Act?

MR HUGHES: Yes, there is. I think it is in the area

of - it is not section 46, but it is around that
area - section 48 of the 1974 Act.
Now, if the Dingle principle is correct so

that a defendant cannot rely upon defamatory
publications by a third party to reduce the damages
that that defendant would otherwise be liable to
pay, it would be a fortiori, in our respectful
submission, that the plaintiff should not be
subject to a reduction of his verdict because the
defendant has defamed him on some previous
occasion.

Carson(2)	6	25/8/92
BRENNAN J:	I must confess I am not following this very well, Mr Hughes.	I see that Mr Justice Windeyer in

Uren's case in the passage cited in Coyne, said:
It seems to me that, properly speaking, a man
defamed does not get compensation for his
damaged reputation.

I must confess when I read that I pulled up rather

short. I thought a man did get damages for his
damaged reputation, and if it is not for his
damaged reputation, then one looks to see what
precisely it is for. If it is for his damaged
reputation one can understand section 48 and might
find some difficulty with Dingle's case.

MR HUGHES:

My recollection is that although the section 48

principle was not part of the common law, although
it may have been, I am not certain, there may have
been some similar provision in England by statute.
I will have to look at that, Your Honours.

BRENNAN J: One could understand readily that if one looks

at damages for defamation as being for the hurt to
the plaintiff, then the double sting can be worse
than the first sting. But if one looks at it from
the point of view of damage to an asset, to use a
very loose term, namely, reputation, it is
difficult to see that if it is damaged on the first
occasion it is worth the same in terms of damage on
the second.

MR HUGHES: But, Your Honour, that overlooks the difficulty,

perhaps, that the two articles imputed very
different conduct or misconduct to the plaintiff.
The first article said that the plaintiff by two
separate acts committed, as Mr Justice Mahoney
said, were contempts of court, each of them.

BRENNAN J:

Mr Hughes, I do not wish to interrupt you, but

my problem is not one in terms of the nature of the

one should approach the analysis of the present present case. It is a question of the way in which
case in terms of principle.

MR HUGHES:

There is a slight divergence we would venture to

suggest with great respect, that Sir Victor
Windeyer's analysis is not altogether correct.
There are three elements in damages recoverable for
defamation: first - not necessarily the most
important, each case is so variable - hurt, mental
hurt, anxiety, shame, loss of self-esteem. Those

are personal factors. It is clearly settled in
New South Wales that that sort of damage is part of
the relevant harm for which damages are recoverable

in terms of section 46 of the Defamation Act of 1974.

Carson(2)

25/8/92

The second element, we suggest, is damages for

injury to reputation, the loss of the esteem in
which the plaintiff was formerly held by people in
his community. That proposition is, we would
respectfully suggest, clearly endorsed in Coyne.
The third element is vindication, an element

that is described in customarily vivid terms by

Lord Hailsham in his judgment in Broome v Cassell, the PQ17 convoy case, and perhaps it is worth,
because this very important question has been
thrown up earlier in the argument, if I go very
briefly to what Lord Hailsham said in that case on
this point. The report, Your Honour, is (1972) AC
1027 and the relevant passage is at page 1070 to
1071. His Lordship, in the last paragraph on page
1070 deals with the subjective element and then
over on page 1071 His Lordship says this, second
paragraph:
In actions of defamation and in any other

actions where damages for loss of reputation are involved, the principle of restitutio in
integrum has necessarily an even more highly
subjective element. Such actions involve a
money award which may put the plaintiff in a
purely financial sense in a much stronger
position than he was before the wrong. Not
merely can he recover the estimated sum of his
past and future losses, but, in case the
libel, driven underground, emerges from its
lurking place at some future date, he must be
able to point to a sum awarded by a jury
sufficient to convince a bystander of the
baselessness of the charge.

His Lordship goes on to cite Sir Victor Windeyer in ~he passage that Your Honour Justice Brennan had in

mind. I think it is the passage that Your Honour
Justice Brennan had in mind.

McHUGH J: That passage has been very influential, that is

the passage in the judgment of Mr Justice Windeyer,
but was it not a new departure from the law? Had
anybody else in the history of the common law ever
perceived the action for damages for defamation in
the same way as Mr Justice Windeyer did?

MR HUGHES:

I had thought that His Honour, in saying that

part of the purpose of an award of damages in such
a case is vindication, was not departing from
settled common law principle.

McHUGH J: Except, Mr Hughes, it was not the traditional

view that you did get damages for injury to your
reputation, for injury to your hurt and feeling.
The language of Mr Justice Windeyer provided a

Carson(2)

25/8/92

powerful weapon for the armoury of advocates who
were talking about vindication of the plaintiff in
the eyes of the community, but I just have no
recollection of that expression being used in

earlier cases. I may be wrong.

MR HUGHES:

We would venture to suggest that in the passage

in the Lord Chancellor's speech which I have just
read, although His Lordship does not use the word
"vindication" as such, in talking about the
necessity for the award to be in a sum that would
enable the plaintiff afterwards, if the ripple
effect has not stopped, to point to the award and

say, "This charge is baseless. I proved that by
pointing to this verdict."

McHUGH J: But one might ask rhetorically, "Why does not the verdict, provided it is not a verdict for a nominal

sum, do that in any event?" What difference does
it make if the verdict is for $1000 or $100,000?

MR HUGHES:

As Mr Justice Mahoney points out, $1000 in the

case of a grave libel committed in circumstances of
great aggravation will not be enough either to
restore or to attempt to restore reputation or, as
we would put it, as well to vindicate.

McHUGH J: That seems to indicate that one of the purposes

is not so much to compensate, but in effect to
restore. It is a remedy. It has a remedial effect
rather than a compensatory effect.

MR HUGHES:	It has both, we would submit, and it has been recognized as having both. There is no heresy, if
I may use that expression with great respect, in
Sir Victor Windeyer's reference to vindication.

DAWSON J: But, Mr Hughes, you cannot treat these as heads

of damage, can you, because the degree of loss of
reputation will have at least a large effect on the
degree of hurt? What is required to vindicate will

be measured largely again by the loss of
reputation.

MR HUGHES: There may be overlapping, Your Honour.

DAWSON J: Not overlapping - or almost. entire overlapping.

How can you measure what is required in order to vindicate, without looking at the loss of reputation?

MR HUGHES:	Your Honour, one cannot.
DAWSON J:	How can one measure the hurt, without looking at the loss of reputation? If I did not think anyone believed what was said, and my reputation did not
suffer, I would not be much hurt.
Carson(2)	25/8/92
MR HUGHES:	Your Honour, it is not necessary for the

purposes of my argument to challenge in any way
what Your Honour is saying. In this area of
discourse so much depends - - -

DAWSON J:

I am not attacking you, I am just trying elucidate the problem.

MR HUGHES:

Yes.

So much depends upon the words that have

been used by judges. I suppose it has to be said
that in this area, where vital interests are
involved, reputation, proper freedom of expression
are involved and have to be balanced, judges have
used expressions such as "vindications" which may
be substitutes, in terms of expression, for the
other essential concepts that
Your Honour Justice Dawson has alluded to in Your
Honour's last question to me. It does not matter
very much what you call it as a matter of words,
the simple proposition for which we contend is that
there should have been a consideration by the
majority of the Court of Appeal of each verdict. of New South Wales applies, nor, I should say, was
it ever suggested at the trial that section 48 had

an operation to reduce the damages, otherwise

recoverable, for the second article. No request
for a direction in those terms was made, nor could
it, we would venture to say, have been properly
made, because when one looks at the text of
section 48, what may be taken into account in
reduction of damages for the publication of
defamatory imputations is previous recovery of
damages or the bringing the proceedings for the
recovery of damages, or the agreement by the
plaintiff to receive compensation:
for defamation in respect of any other
publication of matter to the same purport or
effect as the matter complained of -

As our outline has been at pains to point out,
these were two very different libels, the second
very much more serious than the first, although the
first was extremely grave in itself. The plaintiff
was grievously damaged, in his personal reputation
and in his professional reputation, by each
article. The view, as I ventured to suggest
earlier, could well be open that the second libel
was published in circumstances of aggravation that
even exceeded the circumstances of aggravation
attending the publication of the first article.
There is, we would venture to suggest, a rough

symmetry, an approximate symmetry, between the two
verdicts. The learned President said that he could
not conceive that this was the most serious libel

Carson(2)

25/8/92

ever to be published about anyone in this country.
First of all, that is an inadmissible test and it
ignores the statement of the law by the majority of
Your Honours, and without dissent the from
minority, in Coyne. It is not a proper approach
for an appellate judge to test a verdict initially
or at all, certainly not initially, by his
subjective impression, and the learned President did so; Mr Justice Priestley did so. His Honour did so in two ways: first of all His Honour
expressed the view that the evidence called for the
plaintiff on the issue of damage to reputation was
in some respects hyperbolic. That is at page 528
of volume 2.
It is a remark that is not altogether, with

respect, easy to understand, or so it may be
thought, because of the five witnesses who were
called on the question of reputation, and the
particular aspect of reputation of the kind that is
relevant in the light of this Court's decision in
Lamb v Readers Digest, on which Your Honour
Justice Brennan gave the leading judgment, 150 CLR,
three of those five witnesses were not asked a
single question. The other two were cross-
examined, but briefly, and in not such a way as to
detract from the course of their evidence. Each of
the witnesses was taken through the various
imputations for which the plaintiff contended and
asked, what would you think of a solicitor who
engaged in that sort of conduct; criminal
conspiracy, contempt of court, gross professional
impropriety? And each witness, in varying words,
gave views which varied from highly improper,
reprehensible and so on. Not challenged in the
case of three of the witnesses, and of course, in
the case of the two witnesses who were cross-
examined, the Court of Appeal, consistently with
Coyne, had to accord to that evidence its highest
pitch in favour of the plaintiff.

I am not going to weary Your Honours by going

to the passages in the evidence of those witnesses.
I have summarized it and a good deal of it is summarized in the judgment of Mr Justice Kirby.
But one gets back to this fundamental problem with
Mr Justice Kirby, aggregation and, of course, that
flows over into Mr Justice Priestley judgment. Another fundamental problem with
Mr Justice Kirby's judgment is the subjective
impressionist view that His Honour formed about the
gravity of the libel. When one comes to
Mr Justice Priestley, at page 528, he expresses the
factual view as his own view of the evidence, that
there was a degree of hyperbole in some of the
evidence called for the plaintiff. He also, if one

Carson(2)

25/8/92

goes to another part of His Honour's judgment which
has a more direct relevance to a ground raised in
one of the proposed cross-appeals, His Honour tests
the verdict by reference to his factual opinion
that the second article did not convey the

imputation upon which the plaintiff succeeded. I
think that is to be found at page 531S when
His Honour was dealing with the question whether
there should be a general new trial or a limited
retrial, limited to damages.
His Honour invokes, as ground for a

supposition that the jury's verdict on the second
article was perverse, the fact that they found the
imputation that they did find and His Honour says:
In view of the number of other judges who have held that the article was capable of conveying the alleged imputation, I doubt whether it
would be reasonable for me to hold a different
opinion. It is relevant to say however that
the second article capable in law as I accept
it is of conveying the alleged imputation,

does not in fact convey it to me. It conveys
other defamation imputations to me, but not
that one. I think it was open for the jury
reasonably to reach the same factual
conclusion on the imputation alleged. The
possibility of this aspect of liability being
whatever it was that led them astray on considered by the jury under the influence of
damages seems to me sufficiently strong to
indicate a general new trial -

but Your Honours will see that His Honour builds
upon his factual conclusion on the meaning of the
second article as a ground for bringing not just
one verdict, but both verdicts down. That, with
very great respect to His Honour, is an altogether
impermissible approach, just as it was
impermissible for His Honour to stigmatize some of

the plaintiff's witnesses' evidence as being in the
nature of hyperbole, just as it was wrong for the received a decent prompt and adequate apology early
learned President to invoke as a ground for taking
away the jury's verdict in each case his view that
as a ground of, as His Honour called it, especial
relevance.

McHUGH J: But was it a ground of relevance at all? Why was

it not relevant?

MR HUGHES:

It was totally irrelevant and it vitiates the

exercise - that and other irrelevancies vitiates
the exercise of a discretionary judgment,
Your Honour.

Carson(2)

25/8/92

McHUGH J: But why is there not some evidence of an

admission by the plaintiff that an apology with the
two additional items would have satisfied him?

MR HUGHES:

Because the jury, Your Honour, were entitled to

take the view that first of all, he had never been
offered a proper apology, and also entitled to take
the view that that consideration was irrelevant to
their view of the case.

McHUGH J: That consideration being what?

MR HUGHES: That the plaintiff was, according to

Mr Justice Kirby, prepared or would have been

prepared to take an early adequate apology. In
other words, Mr Justice Kirby, ignoring the
approach that the jury were entitled to take on
this point - - -

McHUGH J: Yes, I follow your point, Mr Hughes.

BRENNAN J: The question really is whether that evidence is

capable of being used as evidence of the measure of
personal hurt, is it not?

MR HUGHES:

It was, Your Honour, and the jury had it before

them, and they were entitled, in our respectful
submission, to say, "That does not trouble us at
all."

McHUGH J: That is the question, is it? Could they

reasonably say that?

MR HUGHES: Yes, Your Honour.

McHUGH J:	Why?
MR HUGHES:	Why, because a bewildering number of factors

face a plaintiff when he has to decide whether to
take a great newspaper on, and he is entitled to
think, even though he has been grievously hurt,

well, if I get a full retraction and a full apology
and a prompt one I will not sue. The jury were
entitled to take the view that the plaintiff was
not to have his damages reduced for an initial
concilliatory and reasonable attitude and, of
course, this point was never invoked at the trial
as a ground for reducing the damages. The
defendant at the trial argued to the jury that the
apology that was given eight months later almost to
the day, on 22 December 1987, was an adequate
apology and as against that, it was put on behalf
of the plaintiff that it was too little too late.
Too little because it did not deal with one of the
defamatory imputations laid in relation to the
first article, that is the defamatory imputation
concerning Dr Metcalf, and did not meet the thrust

Carson(2)

25/8/92

either of that imputation at all or the other
imputation adequately.

That was the context of the trial. It was not

ever suggested at the trial in address, as I recall
it, I speak subject to correction, but even if it
was suggested in address that Mr Carson's damages
should be reduced because of his initial
preparedness to be concilliatory, the jury were
entitled to reject that submission and must be
taken to have rejected it. The jury must be seen
to be entitled to have taken the view that the
treatment of Mr Carson's request for an apology,
the treatment of his invitation to the newspaper to
send a senior journalist to him so that he could
have a discussion about the Rajski case, was never
taken up. After an initial welcome of the
suggestion, the newspaper never took that any
further. So that was an approach which the jury must be regarded as having been entitled to take and to have taken.

TOOHEY J:

Mr Hughes, I am not clear of the scope of what

the President is saying at page 470. Is it
implicit in that part of the judgment that if a
potential plaintiff seeks only an apology which is
refused and then brings action for defamation that
the willingness to settle for an apology rather
than damages tells against the plaintiff.

MR HUGHES: That is the proposition, Your Honour, and it

must be contrary to common sense and opposed to the
interest of prompt conciliation to settle disputes.
Imagine, if I may ask Your Honours to do so, the
position that confronts a plaintiff, even a
plaintiff in the position of Mr Carson with his
professional background and perhaps the resources
of a firm behind him. As Mr Carson said at one
point in his cross-examination, a libel action, if interlocutory proceedings are proliferated as they
were in this case according to his evidence, is a

very wearing, worrying thing and it is just not
right to regard that as matter of mitigation.

McHUGH J:

Is this a matter of policy or a matter of fact,

because a jury would have to be carefully
instructed about such a - - -

MR HUGHES: Yes, but no instruction was ever sought. This

was a thought developed by the President on his own
initiative and erected to the level of a special

relevance. I do not want to be rude in not mincing
words, but it was the very opposite.
So we say that the reasons of the majority

judgments are permeated with that basic error of
seeing the cases first of all through the

Carson(2)

25/8/92

spectacles of their own instinctive approach, their
own particular fact-finding technique,
impermissibly. And then when one goes to the
minority judgment of Mr Justice Mahoney, one finds
a treatment of the case that, in our respectful
submission, is meticulous, accurate and consistent
with, indeed in accordance with, the approach
directed to be the correct approach by Your Honour
Justice Toohey in Coyne.
And to save time, and I hope Your Honours will

acquit me of handing up too much paper, but it
really will save time if I hand up, with
Your Honours' leave, two documents, one which sets
out by reference to passages in the reasons for
judgment the matters that Mr Justice Mahoney took
into account, as matters that the jury were
entitled to take into account in assessing damages
in each case. We have also set out on a piece of paper, Your Honours, the specific matters that the learned President took into account, so that one
can compare the two treatments of the relevant
subjects.
Your Honours, it would only be wasteful of

time to read this out, unless Your Honours want me
to, but we have endeavoured to distil
Mr Justice Mahoney's approach to the question of
damages on the particular topics that he said were
open to the jury to consider and which they must be
taken to have considered favourably for the

plaintiff. And there is the much smaller list,
with respect, of the topics that the President took
into account.
Mr Justice Priestley's judgment is, of course,

to be considered in the light of the President's,
~ecause His Honour generally agreed with the
reasons of the President.

MASON CJ:

Mr Hughes, could I just ask you, what is the

meaning of the expression "journal of record"?
Apparently it is an expression that arose from your
use of it in this case.

MR HUGHES:

I used it, and I hope I am right in saying that

it is an expression not unusually used when one is
suing a newspaper such as the Sydney Morning Herald

or the Financial Review. It is intended to denote
that it is a newspaper that holds itself out as a
responsible recorder of events and a responsible
commentator in its columns.

DEANE J: Does it not mean a newspaper which is of

historical significance in terms of people
subsequently ascertaining what happened, as

Carson(2)

25/8/92

distinct from the sort that you throw in the
garbage bin after reading?

MR HUGHES: Well, yes, Your Honour; that is the more pithy

way of trying to say what I said in too many words.
It is an expression used to denote responsibility in treatment of facts so that it can be looked at
as recording history and responsibility in the

making of comment. Now, the dichotomy in the
jargon of running defamation cases, I suppose, is
between that sort of newspaper and a newspaper that
is sometimes described, or a journal that is
sometimes described, as being of the yellow press
or the gutter press. That is the concept. And, of
course, it goes without saying, we venture to
suggest, that if a journal of record in that sense
makes a serious attack upon the reputation of a
solicitor of seniority in his profession and with
an unblemished record, not only as a practitioner,
but as one who did something to serve the wider
purposes of his profession by being on the Council
of the Law Society in various committees, the harm
is obviously all the greater and the hurt more
severe. That is the concept.
We say, therefore, that these appeals call for

the Court's consideration of the questions that I
have endeavoured to delineate as to the basis upon
which an appellate court should review quantum, the
quantum of separate verdicts in two defamation
actions heard together, and they also pose
questions perhaps of a more general kind as to the
principles to be used in reviewing the quantum of
any verdict given by a jury in a defamation action.
Your Honours, at the time when this appeal was

argued, the decision of this Court in Coyne had not

been delivered. It was delivered between the
'termination of the hearing of the appeal and the giving of judgment on the appeal to the Court of

Appeal. If one is to be wise after the event it is

perhaps unfortunate that there was no opportunity
given - and I do not say this critically - for
argument on the implications of Coyne.
One thing that the learned President, however,

did notice about Coyne was that according to the
view of the majority in that case, it is
impermissible to compare, for the purposes of
testing the quantum of a defamation verdict, the
range of verdicts in personal injury cases.
While the learned President observed that what

His Honour described as a warning to that effect
had been given by the majority in Coyne, His Honour
really - and, again, I say this with respect -

Carson(2)

25/8/92

disregarded it, as is demonstrated by His Honour's
reference to the unreported Cappelletto case.
I am in a position to put my arguments to the

Co~rt on the relevance of personal injury awards
but that is perhaps a question that would better be
argued by me in response to the notice of
contention. But I am in the Court's hands.

MASON CJ:

We think you ought to await the argument pursuant

to the notice of contention and deal with it in
reply, Mr Hughes.

MR HUGHES: If Your Honour pleases. May I say something

about the position of the jury in New South Wales
in relation to defamation cases. Unlike other
States and Territories of the Commonwealth, a jury
is still the ordained tribunal for trying all

actions for defamation subject to two exceptions. I am speaking in this context of actions,
Your Honours, in the supreme court. As Your Honour
the Chief Justice and Justice Deane pointed out, a
different position obtains in the District Court of
New South Wales, but in the supreme court, to which

of course the major cases go or should go, the jury is the constitutional tribunal for trying issues of
fact in a defamation action unless the parties
consent to trial by a judge alone or unless the
issues in the case involve complicated questions of
scientific investigation. Unless Your Honours want
me to, I shall not take Your Honours to the group

of sections in the Supreme Court Act of 1970, but they are sections 85 through to and including 89,
and in the New South Wales Practice Book, the red
book, volume 1, page 1150 et seq. Section 89(2)
would enable the supreme court to make an order for
the trial of a defamation action by judge alone
where:
any prolonged examination of documents or
scientific or local investigation is required

That is the sort of exception that obviously is not and cannot conveniently be made with a jury -
likely to apply to defamation actions, but
theoretically it could. Subject to those
exceptions, the jury remains the constitutional
tribunal in New South Wales for defamation cases,
whatever the position may be in other States - and
Your Honours the Chief Justice and Justice Deane
conveniently summarized the position in other
States in Your Honours' joint judgment in Coyne.
We would say that it was obviously a matter of

deliberate legislative policy that that position
should be established and maintained. Prior to the
Supreme Court Act of 1970, the Jury Act 1912,

Carson(2)

25/8/92

section 29, ordained that all actions at law and
all civil issues of fact in the supreme court be
tried by a jury. Of course, there were exceptions:
commercial causes and cases in which the parties
agreed to dispense with_ the jury. Clearly, as we would be the first to
recognize, that legislative policy does not render
jury verdicts immune - nobody could possibly
contend for that in the light of the way the law
has developed - immune from challenge on the ground
of perversity in relation to damages, but it at
least insulates juries' verdicts from the sort of
treatment that Your Honour Justice Toohey said was
inappropriate in Coyne's case. The fact that the
jury is the constitutional tribunal in New South
Wales perhaps lends weight to Your Honour
Justice Toohey's treatment of that point in Coyne in its application to New South Wales.
We would say, Your Honours, that there is a

strong prima facie presumption that a jury truly
decided the issues committed to them. For that
proposition we would rely on Coroneo's case,

Coroneo v the South Kurri Kurri Amusement Company,
51 CLR 328, in the joint judgment of
Sir George Rich and Justice Evatt and

Sir Edward McTiernan at page 345. Just below the
top of the page, Their Honours say this:
It is true, as Scrutton LJ implies in
G. Scammell and Nephew Ltd v Hurley, that a
finding of a jury may be so perverse as to
throw "great doubt" upon their other findings.
But as Isaacs and Gavan Duffy J.J. said in
Ryan v Ross:
"The onus lies on the party seeking a new

trial to clearly prove the necessity. It is

not enough to raise a doubt. If any case
cited can be supposed to lay down the

proposition that, because a jury finds
contrary to the evidence on one or several
issues in a case, they should be considered as
practically disqualified from deciding a
totally distinct and separate issue, we
respectfully decline to adopt it."

That was a case in which the jury brought in two verdicts: one for a thousand pounds for damage to
business reputation; and three thousand pounds for
damage to personal reputation. The second verdict
was held to be beyond reason but the plaintiff held
its verdict for a thousand pounds. Also we would
cite a passage in the judgement of
Sir Edmund McTiernan in Pateman v Higgin, 91 CLR

Carson(2)

25/8/92

521, at page 525. It is a very short passage.
His Honour very succinctly said this:
The presumption raised by the verdict that the
jury truly decided the issues of liability
which they had to try cannot be rebutted by

conjecture. The contention of the defendant that the verdict must have resulted from a
compromise among the jury rests merely on
conjecture.

And I shall come later to the conjectural approach
which we say was taken by the majority to strike
these two verdicts down.
Your Honour, that approach is simply an

application, we venture to suggest, of the well known maxim as to the regularity of official or
in relation to juries' verdicts which was judicial acts omnia praesumuntur, and it is a maxim
recognized in Broome's Legal Maxims, and I will not
go to the page, but may I refer Your Honours to the
10th edition of Broome at page 443. We go on to
say this: it is an important factor in favour of
the validity of the verdicts that two judges in the
Court of Appeal have expressed the view that the
verdict in the fist action was not appealably
excessive, and I referred Your Honours, I think, to
the pages in the judgments earlier, and Mr Justice
Mahoney went even further, as I - - -

MASON CJ: Yes, well you told us that early on.

MR HUGHES:

I am sorry, yes. Moreover, Your Honours, there

is no challenge to the proposition that the first
article was capable of conveying the imputations
pleaded, so the jury's verdict on the issue of
liability, in the first action, is unsustainable,
in our respectful submission, unless it can be
shown, not just conjecturally, but convincingly to
be contaminated by the verdict of the jury in the

second action.
As to that action, the second action, there

are concurrent findings below in favour of the
plaintiff on the capacity of the second article to
convey the imputation found by the jury. If those concurrent findings stand, and I do not enter into
that argument now, it will follow that the jury's
verdict on liability in the second action is not
unreasonable. Thus, we would put to Your Honours,
that on three of the four issues left to them, the
jury's verdicts would be unappealable in the
absence of contamination.
One therefore asks, I suggest, why it should be assumed that the jury got it wrong on the fourth

Carson(2)

25/8/92

and only remaining issue, namely damages in the

second action. If on three out of four of the
issues left to them the jury acted within the
bounds of reason, their verdict on the remaining
issue is entitled to be respected. And, in that
connection, we would give Your Honours a brief
reference to a passage in the speech of Lord Morris
of Borth-y-Gest, in Broome v Cassell, (1972) AC
1027 at pages 1096 and 1097. That was a case,
Your Honours, in which the jury brought in a
verdict expressed in two separate amounts: one for
compensatory damages and the other for punitive
damages. They awarded fifteen thousand pounds
compensatory damages and twenty five thousand
pounds as punitive damages. And at line Hon page
1096, His Lordship said, and I quote:
It is this disparity between the 40,000 pounds
and the 15,000 pounds that has caused disquiet as to whether the jury may have been caused or allowed to be under a misunderstanding. But
if the conclusion is reached that the jury
knew what they were about and chose their
figures advisedly then I do not think that I
ought to conclude that their "additional"
figure of 25,000 pounds was so high that no
reasonable jury could award it.

We would simply cite that as an example of the sort
of reasoning to which we appeal on the footing that
the jury got it right in this case on three out of
four issues left to them.
All the more is that so, in our respectful

submission, when no incident at the trial provoked
an application for the discharge of the jury or was
held to be a ground for a new trial. Both the
learned judges in the majority in the Court of
Appeal expressly found, as Your Honours will have
noticed, that there was no occasion caused by my
remark to the jury to award a new trial because of

that remark. Your Honours, I do not propose to
enter upon submissions about my remark to the jury,
because that falls more logically under the notice
of contention unless Your Honours would wish me to
deal with it now.
In our respectful submission, a principal

reason why jury verdicts in the Supreme Court of
New South Wales on quantum, although obviously not
inviolate, should be treated with great
circumspection and respect is that the legislature
must be presumed to believe, rightly or wrongly,
that juries are better able than judges to reflect
and express community values in cases involving the
necessity of discharging the difficult task of
fixing a money sum for a serious defamation.

Carson

25/8/92

Alternatively, the legislature may not think

that. That may not be their reason, but probably
the only other reason is in itself compelling.
Perhaps the legislature thought on grounds of
public policy that the judgment of men and women
from the community picked at random should be
brought to bear and preferred as the determinant of
liability and of quantum in cases of this kind.
Another important reason, we would submit,

restraint is that each case of serious defamation - justifying the treatment of jury verdicts with
and these two cases were paradigms - is almost
inevitably accompanied by a complex of unique
circumstances which defy rational comparison with

other cases of defamation and other torts. In other words, each case is, to use a colloquial
expression, a one-off sort of case.
There are a few passages in Sutcliffe,

Your Honours, to which I should make brief
reference on the appeal part of the case. The
first one is at page 175 in the judgment of the
Master of the Rolls in the very middle of the page.
I cite it only because it refers to the ingredient
of vindication in a libel award. That is the

paragraph between letters E and F. I will not read
it.
Next, there is a passage at page 182 which

follows, if I may say so with respect, a concise and instructive treatment of the consequences of

Fox's Libel Act of 1792. I will not read it to
Your Honours, but between lines E and H there are
references to the primacy of the jury and to a
pungent statement by Lord Camden about the function
of a jury and who they are, the people of England.
Then there is a passage in the judgment of

Lord Justice Nourse, at page 184H, at the bottom of the page, where His Lordship says:

Amongst juries trying civil actions in the
late 1980s, we ought to be confident that
prejudice, caprice and stupidity are

possibilities which exist only in theory. But
we must recognise that out of the human
attributes for which we prize them they may
sometimes make an award on a wrong basis,
seasoned perhaps with some reasonable emotion.

Then, at page 186, His Lordship deals with the case
of Youssoupoff v Metro-Goldwyn-Mayer and points
out, for what it is worth, that the 25,000 pounds
awarded in that case in the early or middle 30s of
this century might be worth about 900,000 pounds
today. At page 190G, Lord Justice Russell said:

Carson(2)

25/8/923

That is not to say, however, that no plaintiff
can ever be entitled to an award of half a
million pounds and more -

BRENNAN J: Does this include exemplary damages?

MR HUGHES:

In Sutcliffe there was no claim for exemplary

damages, as I understand it, but they held the
amount was too much anyway, Your Honour. That is
the problem.

BRENNAN J: Everything is a one off?

MR HUGHES:	Every case is a one off but it is difficult - and I must recognize this - to compare if one is
going to commence the process of comparing apples
with oranges and that with a blindfold on. It is
difficult to compare English verdicts with
Australian verdicts because of the punitive
element. For instance, Jeffrey Archer received
500,000 or 600,000 pounds in a celebrated case that
never went to appeal for imputations that he
committed adultery with a prostitute and no doubt
there was a strong punitive element there.

There are some other big verdicts quoted in

argument at page 162C of Sutcliffe but our thesis,
which we put to the Court by way of submission, is
that in cases of this kind comparisons are just not
useful and we draw strength for that submission by
what this Court said, albeit in the context of a
personal injury case, in Planet Fisheries v
La Rosa, 119 CLR 118. I think, Your Honours, it is

at pages 124 to 125, in the joint judgment of Sir Garfield Barwick, Sir Frank Kitto and
Sir Douglas Menzies. Their Honours referred, in
the middle of page 124 to a submission by Planet's
counsel:
It was submitted that in deciding whether or
not the award of general damages was

excessive, we should seek out a norm or
standard in the decisions of this Court for
the assessment of general damages, by
comparison with which it was claimed that it
would be seen that the award of $40,000 for
general damages was disproportionate.

And then Their Honours go on to indicate the
reasons why in the context of personal injuries
that is not appropriate.

Your Honour, I could develop comparisons but our primary thesis is it is not relevant.

I could
point to a reported case, Kornhauser, or Hopman,
where the plaintiff got 20,000 pounds in 1960 or
thereabouts, but it does not help.

Carson(2)

25/8/92

For those reasons, which I am afraid I have

taken too long to develop, we would submit that the
majority judgment is vitiated by errors; that the
verdict in the first action should not have been
set aside, it should have been allowed to stand for
the amount of damages that the jury awarded. We
say the same of the verdict in the other action.
And I hope that I have not failed to discharge my
duty to my client by regaling Your Honours in
detail with the circumstances of aggravation but
Your Honours have read the judgments and it would be wasting precious Court time for me to go into

that matter in detail. It is all there in the
judgment of Mr Justice Mahoney which we seek to
uphold. For those reasons, we would submit that

the appeal ought to be allowed. If the Court
pleases.

MASON CJ: Thank you, Mr Hughes. Yes, Mr Jackson.

MR JACKSON:

Your Honours, may I commence by handing the

Court copies of our outlines of submissions. I say
outlines in the plural because one document relates
to the response to our learned friend's argument.
The other relates to the issues sought to be
notices of cross appeal and notices of contention.
Your Honours, there is one typographical error in paragraph 16 of the former document; the
heading should be "appellably" not "appreciably".

DEANE J:

I do not quite follow 16.

It says:

The Court of Appeal were entitled to come to
that conclusion on the evidence.

Then the rest seems to be suggesting that they were
not.

MR JACKSON:

Your Honour, may I check that.

TOOHEY J: It is simply a response, is it not, to the

argument that they were not appreciably excessive?

MR JACKSON: Yes, it is, Your Honour.

TOOHEY J: Appear to have fallen into the same trap, not

appealably excessive.

MASON CJ:	Yes, Mr Jackson?
MR JACKSON:	Your Honours, may I say two things before

moving to the substance of our submissions and they
are these: the first is in response to the
submission by our learned friend that the
legislature has enshrined, as it were, trial by
jury in the supreme court in actions for

Carson(2)

25/8/92

defamation. True it is, Your Honours, that that is
the case, but by the same enactment by section 102
the legislature provided for there to be an appeal
in such cases to the Court of Appeal and,
Your Honours, by doing so one might say on the one hand there has been enshrined the notion of trial by jury, on the other hand there has also been
enshrined the notion of there being an appeal to
the Court of Appeal with there being no perceptible
change or no change brought about by the enactment
in relation to the approach to be taken by the
Court of Appeal in dealing with issues such as
those with which the Court is presently concerned. That brings us simply to the position where,
if I can use the words of Your Honour
Justice Toohey in Coyne at page 228, the verdict of
a jury on issues of this kind is one which is not
invulnerable but, of course, the appellate court

would be slow to disturb it. It depends on the
particular case.

MR JACKSON:

Now, Your Honours, having said that, that is

the first thing I want to say. The second is that
this, of course, is a case where if one takes the
expression "damages being at large", the damages
were really fundamentally damages which were at
large, because there was no evidence of any
economic loss suffered by the appellant, nor was
there much, if I could put it in that quantitative
way for the moment and I will come to it later, nor
was there much evidence to establish that he had
suffered a loss of reputation of a significant or
dramatic kind.
Your Honours, the argument on behalf of the

appellant attacks the Court of Appeal's decision on a number of different bases. May I deal first with
those before moving to the issues raised by the
notices of cross appeal and notices of contention,
and the issues raised by the appellant seem to be

essentially five in number: they are aggregation, the question of inclusion of punitive damages, the
use of personal injuries awards as a comparison,
the list of irrelevant factors said to have been
taken into account by the President and finally,
were the verdicts appealably excessive.

Now, Your Honours, may I say in dealing with those, except in the case of the use of personal
injury awards as a comparison, may I deal with the
argument in response to our learned friends first,
but in dealing with the question of personal

adopted by the Court in relation to whether it will injuries may I seek to deal with the approach to be
reconsider the observations of three of
Your Honours in Coyne's case.

Carson(2)

25/8/92

But may I come first, Your Honours, to the question of aggregation.

Now, Your Honours, the
notion that the Court of Appeal impermissibly
treated the verdicts on separate counts as
aggregated, when determining whether the verdict
should be set aside, in our submission, is one
which is not made out. Your Honours will have
noted that I used the qualifying expression,
impermissibly, because there are some occasions
when the President referred to the verdicts in
totality, but he seems to have done so, we shall
submit, either as a shorthand way of expressing
things - in other words, not saying the same thing
twice - or by way of saying if one looks at the
total effect of the two publications together, one
takes them at the start of one year and looks at
them at the end of the next, in effect, and takes
the total effect of the two publications together.
Doing the best you can on that, you get nowhere
near $600,000.
Now, Your Honours, I need to go a little then

to the reasons for judgment to seek to demonstrate
that in reality there was no aggregation of an
impermissible kind, and Your Honours, I need to do
that by doing two things: one is to indicate the
numerous occasions - I will do so as briefly as I
can - on which it is quite apparent that the
majority in the court were dealing with the matter
as consisting of two quite separate cases, in
effect; and the second is to demonstrate that if
one looks at the context in which the remarks are
made, which are relied on by our learned friends as
constituting the impermissible aggregation, that in
fact they do not amount to that.
Your Honours, could I say first that there is

no hint of such an aggregation treatment, as it
were, in the separate remarks of

Mr Justice Priestley. I say separate remarks,
Your Honours, to indicate those in which His Honour

expressed his own views as distinct from agreeing
with the views of the President. Your Honours,
indeed it is quite clear, in our submission, that
Mr Justice Priestley treats the issues as being
entirely separate.
Could I go, Your Honours, to the second volume and Your Honours will see Mr Justice Priestley's
reasons for judgment. Commencing at page 527, Your
Honours, the first paragraph, His Honour refers to
the fact that he agrees generally with the President's treatment of the facts and the
statement of the facts and the grounds of appeal
and agree generally with his reasons and with his

conclusions. He say •••.. subject to what follows.

Carson(2)

25/8/92

Your Honours, it is apparent from the

succeeding parts of His Honour's reasons for
judgment that he does treat the two issues as being
quite separate~ Your Honours, may I go first to
the treatment of the later publication, which is
dealt with at page 528G, going through to page

530K. Your Honours will see that he deals there
specifically - and I am referring to page 528G - he
refers specifically to the later article. He deals
with the later article throughout that passage and
he goes on to say at the bottom of page 528,
dealing still only with the second article, that:
the amount of damages is only explicable to me
on the basis that the jury took into account
some impermissible matter.
Your Honours, he then considers that verdict

right through page 529 to page 530K. Your Honours,
he then proceeds to deal with the earlier article
and if one looks at his treatment of it between
530L to 531 I, it is manifest that His Honour does

not seek to aggregate them at all. He reaches,
prima facie, different conclusions about them.
Your Honours, his reason for setting aside both verdicts appears at 530V, through to 531 I, but the
reason at which he there arrives is not based at
all on aggregation, it is based on a different

issue altogether: that is the question whether the
error in one infected - if I can use that word -
the decision in respect of the other. There is no
question of aggregation in His Honour's reasons for
judgment. Your Honours, if one is to find the
impermissible aggregation it has to be in the
reasons for judgment of the President. In our
submission that is not to be found.
Your Honours, could I start at page 443T. 'Your Honours will see the recitation of the issues
by His Honour where he says that in each action,
the jury's verdict was excessive.

That in each action the jury's verdict was
excessive.

And that phrase recurs throughout paragraphs 2, 3 and 4 at the top of the next page, and then he draws the distinction in paragraph 5 between the
first and the second action.
At page 444N Your Honours will see that he

uses the word "aggregate" and what he says is:
The Court was informed that they represented,
in aggregate, the highest verdicts awarded as
general damages for defamation in the history
of this country.

Carson(2)

25/8/92

Your Honours, if I could say two things: the first
is that the award in this case in the second action
was the highest award by itself so far as an award
for one publication was concerned. But all that he
is doing there is to record what the court was
informed.

McHUGH J: When you say it is the highest, in real terms it

was not the highest by a long way. Take Andrews,

$300,000 in 1979. It must be equivalent to over $1
million in 1991.

MR JACKSON:

Your Honour, I think that is in respect of a number of different publications.

McHUGH J: They were consolidated though, were they not?

MR JACKSON:

Your Honour, I will check that.

McHUGH J: No, they were not consolidated. The actions were

heard together.

MR JACKSON:

So I think that what I said is correct,

Your Honour, and whilst one could aggregate a
number of different things in Andrews' case and get
to a figure of, I think, $350,000, they were
separate.
Your Honours, at page 445 at the top of the

page, His Honour commences his general discussion
and Your Honours will see that under that general
discussion he draws a distinction between the two
publications in relation to the question of

apology, at page 446C. Under the heading "The
matters complained of" at page 449, he deals quite

separately with the two publications. Now,
Your Honours, could I just say if Your Honours look
at page 449R he sets out the first matter. Then at
·page 451B he speaks of the second article. At
pages 452 and 453 he sets out the imputations
separately. Your Honours will see that commences

at 452 I, and then 452R sets out the two sets of
imputations. At page 455K to M he refers again to
the difference in the situation in relation to
apologies; and Your Honours will see at the bottom
of page 455 to the top of page 456 the references
to the different circulations at different times.
He then goes on at page 456 to set out various matters under the heading "Disturbing jury
defamation verdicts", and Your Honours will see
that the first sentence under the heading
distinguishes between the two verdicts. Then one
goes through the various factors to which he

refers, and that goes over for many pages, in effect, and one comes then to page 468 to the observation which appears at letters E to G.

Now,

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25/8/92

Your Honours will see that all that His Honour
there says is:
In so far as one may compare that verdict to
this, it seems difficult to say that the
damage to Mr Carson was greater than to
Mrs Cappelletto -

and her injury is referred to in the top line on
the page -
in aggregate, and by a magnitude of 2.4.
Your Honours, it is clear, of course, that he

there adds the two figures together in order to
arrive at the figure of 2.4. But, Your Honours, we
would submit one should ask why is he saying any
more than that. It seems incredible in a sense
that the total damages suffered by the appellant in
aggregate from the two defamations could have
attracted awards which in toto exceeded by 2.4
times what one would be awarded for being made
blind. That is all he seems to be saying in
relation to that.
Your Honours, after that, the fact that

His Honour remained conscious of the need to
separate the verdicts appears from a number of
places. The first is at page 468S, shortly below where he used the heading The Verdicts - plural -
are Excessive; on the next page, page 469A, where
he speaks of the imputations in each of the
articles. Once again, at page 469, in the passage
from M to S, Your Honours will see that he refers
to the absence of an apology in respect of the
second article and he speaks, between O and P, of
the more serious second article. So that one sees
that he is clearly maintaining a distinction
oetween the two cases.

Your Honours, on the same page 469S to U, one comes to the second passage, which is, in effect,

relied on by our learned friends. In respect of
that it is apparent, in our submission, that what
he speaks of literally applies to the verdict in
respect of the second action, in the first sentence
of that. It was the largest verdict for general
damages in defamation in the history of this State
and of the country.
Your Honours, one sees, if one looks at the

passage which goes on from page 469 in the last
paragraph on the page to the top of the next page,
that at page 470D, he remains conscious of the
distinction between the two articles, that is the
passage about the apology to which my learned
friend referred earlier. One sees, at 470F, these

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verdicts - plural. And one sees, at 470G, the
expression, "their amounts smack of the punitive".
Your Honours will see, in the next paragraph,

that - and this, Your Honours, is one that the
appellants also rely on - it is said:
Invested at a moderate rate of interest

the two verdicts comprising the judgment - Your Honours will see he says "the two verdicts" -
would return an annual income of the amount
set out.

McHUGH J: The President did not fare too well selecting his

interest rates, having regard to current interest
rates.

MR JACKSON:

Your Honour, I should say, although I was not

in the Court of Appeal in this matter, our written
submissions led him on that path, because what they
did was to set out the amount of each of the two
verdicts, set out those as appropriate rates of
interest, indicate how much they would get on one
and how much on the other, and then there was a
total for the two; perhaps it should not have been,
but it was. That is why it is there, Your Honours.
But, Your Honours, what he is seeking to say, we
would submit, is simply no more than that he is
making a calculation. If you look at the
calculation resulting from the total amount and
compare it with the two defamations, what he says
is simply out of the range in both respects.
Now, Your Honours, when one comes to page

471 I, His Honour sets out his conclusion which is:
that the jury's verdicts -

plural -

were not just high but -

and he goes on to express it. Your Honours, when
one goes then to letters Q to Son the same page,
at the conclusion of his observations on the topic,
he says:
By the standards of this State, as understood in the light of Coyne, these verdicts -

plural again -
are appealably high.
Now, Your Honours, true it is that His Honour,

perhaps for brevity, has, on a couple of occasions,

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joined the verdicts together, but he has done so
only in a context where it is apparent that he is
speaking of verdicts which he fully understands

have to be considered separately. Now,
Your Honours, one also has to bear in mind that the
few occasions to which I have referred, on which he
refers to the two sums together, take place in
circumstances where he is speaking of two incidents
of defamation taking place in a period of very much
of a little over twelve months, and all that he is
saying is that somewhere along the way, for a
plaintiff to have obtained $600,000 for defamations
of that nature, something must have gone wrong.

BRENNAN J: Well, the question is not really whether

something must have gone wrong, but whether it is
relevant in respect of considering each verdict to
take into account the implications of the other
verdict which, being aggregated, resulted in a
disproportion to the personal injuries case and a
return on investment of the amount indicated.

MR JACKSON:

Your Honour, may I say that I wish to deal with

a number of aspects of that. I propose to move
next to the relationship between verdicts in
personal injuries awards - and I will explain what
I mean a little more fully than that in a moment.
That is the first thing. The second thing is I
propose to move to the decisions dealing with the
circumstances in which it is appropriate, having
formed a view that one of the verdicts - if one
looks, for example, at Mr Justice Priestley - is
one which cannot be sustained, then to take the
view that another verdict which, by itself, might
be sustained can be set aside. Your Honours, there
are a number of cases dealing with the latter
question as well as the first.
Your Honours, could I move then to the

question of the use of personal injury awards?

Now, Your Honours, I would seek to identify first precisely what was said in relation to that topic in the Court of Appeal and, Your Honours, that
appears at pages 466 to 468 - paragraph 15
commencing on page 466.
Now, His Honour refers to there being a

controversy:
as to whether it is permissible to examine the
general damages components of judgments
awarded to persons suffering personal injury.

And he discusses that at that bottom of that page
and then at page 467G, he says:

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I consider that it is safer not to venture any

cases. precise comparisons with personal injury

Then he explains a reason for that. He also notes, Your Honours, the uniqueness of defamation verdicts
at page 467K and all that he does is, at the bottom
of page 467 and page 468, where he notes by the
reference to Canterbury Hospital v Cappelletto that
the top end of the range for general damages for
pain, suffering and loss of amenities of life has
recently been determined by that court, by the
Court of Appeal, and he says, "If one may compare
that with this, it would seem difficult to say"
what he then proceeds to say at page 468E to G. Now, Your Honours, the first thing is that
Your Honours will see he prefaces his observations
by the condition, as it were:
In so far as one may compare that verdict to
this -

and then he proceeds to do it.
Now, Your Honours, one should not assume, in

our submission, that if it be impermissible to make
the comparison, that the other factors which
militated in His Honour's mind were factors which
did not themselves lead him to the same conclusion.
That is the first thing, Your Honours: it seems to
be an additional matter and is so expressed.

MR JACKSON:

Could I just take Your Honours for a moment to the decision which is there referred to, Canterbury

Hospital v Cappelletto.

May I give Your Honours

copies of that and simply indicate to Your Honours

the passage.

BRENNAN J: What is this being referred to? What is the

purpose of referring to it?

MR JACKSON:	Your Honours, simply to make intelligible what His Honour was referring to; that is the first
thing. The second thing is that I wish to use it
in relation to the second part of our submission.

BRENNAN J: You want to say that in so far as it is

permissible to refer to it?

MR JACKSON:

Yes, Your Honour. What is set out in the

reasons for judgment in the case is really simply
later, Your Honour - at what might be thought to be a more appropriate time on that aspect. But what I wanted to say was just this, that one does come to
an expanded version of what appears at page 468.
the second aspect of this issue, the ability to

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look at the question of reference to awards for
damages for pain, suffering and loss of amenities
in personal injuries cases, namely the issue raised
by the amendments to our notice of contention.
What we seek to invite the Court to do is to
reconsider to the extent to which it may be
necessary to do it, the approach taken in Coyne's
case.
Your Honours, could I start in that regard

from the point that one is considering in the
present case an award of damages made in a
jurisdiction where exemplary or punitive damages
may not be awarded and damages are expressed to be
limited to the harm suffered by the person defamed.
That appears from section 46 of the Defamation Act
and Your Honours will see that section 46(3)(a)
says:
damages for defamation:
(a) shall not include exemplary damages -

Then there is a reference, in paragraph (b), to the fact they are not to be affected -
by malice or other state of mind of the
publisher •••.. except so far as that malice or

other state of mind affects the relevant harm. And then, what damages are to be awarded for is
provided for by subsection (2) which says -
Damages for defamation shall be the damages
recoverable in accordance with the common law,

but limited to damages for relevant harm. Your Honours will see "relevant harm" defined
relevantly by section 46(l)(a), that is:
harm suffered by the person defamed -

Now, Your Honours, the first thing is that, of

course, in Coyne's case, Coyne's case was not
dealing with the circumstance where there was a
prohibition of the kind referred to in
section 46(3)(a), and I should say, in that regard,
that because damages are limited to the harm
suffered by the person defamed, it means that one
of the possible objections to the use of the
prevailing levels of personal injury awards as a
test, does not exist. What I mean by that,
Your Honours, is that one takes out of account the consideration of what the wrongdoer ought to pay,
leaving only the question of the compensation for
the harm.

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Now, Your Honours, what I mean by that may be

seen by what was said by Your Honour Justice Toohey
in Coyne, 172 CLR at page 228, the passage
commencing at the top of the page and going to
about point 8. Your Honour referred, in the second
sentence on that page, to the fact that:
damages are at large in defamation actions - meaning that they were -

not limited to pecuniary loss -

and then expressed the result of that. But one of
the factors seems to have been, what was referred
to at the end of that paragraph, namely the
quotation from Justice Windeyer that:
"Damages being at large, it became in time
indisputable that a jury could in all cases
consider 'not only what the plaintiff should
receive, but what the defendant should pay'."

Now, Your Honours, the question of what the
defendant should pay, in some cases, will involve
an element of aggravated damages, as well,
potentially, as an element of exemplary damages,
because there is some overlap between the two, as I
will seek to indicate in just a moment, but once
one takes out of account the possibility of there
being an award of exemplary damages, one is left
with a situation where, as the Act says, the
damages in New South Wales have to be damages in
respect of the harm suffered.
Now, Your Honours, that means that one of the

features which militates against there being a
broad - and I emphasize the term "broad" -
conceptual similarity between the notion of general
damages for defamation and the notion of damages in
respect of pain, suffering and loss of the

amenities of life, has been taken away.
Your Honours, that is the first matter that I

wanted to mention. I mentioned in passing the fact
that there was some overlap between the concepts of
exemplary damages and aggravated damages. That is
discussed in Uren v John Fairfax.

BRENNAN J: Before you leave section 46, where is the term

"relevant harm" used?

MR JACKSON: 46(2), Your Honour, defined in 46(1), of

course.

BRENNAN J: Yes, thank you.

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25/8/92

MR JACKSON:

Your Honours, I was going to go to Uren v John

Fairfax & Sons Pty Ltd, 117 CLR 118 at 151. The
part to which I wish to direct Your Honours'
attention was at page 151 - I am sorry, if one goes
to page 151 first, one sees at that page the
observation which had been picked up by Your Honour
Justice Toohey in Coyne's case at about point 3
that:
"not only what the plaintiff should receive,
but what the defence should pay".

Your Honours, the passage which sets out the
discussion of aggravated and exemplary damages
commences a little earlier. It may be seen at
page 149 commencing at about a third of the way
down the page, where His Honour adverts to the fact
that:
whatever be the position in torts other than
defamation, the distinction between aggravated
and exemplary damages is not easy to make in
defamation •.... it is hard to preserve.

He sets out the formal distinction between the two concepts and then proceeds to discuss those
concepts through to page 152 at the first two lines
on the page. One sees, if I could just mention in
passing, that at page 150, about point 6 on the
page, he speaks of compensation by damages
operating in two ways:
as a vindication of the plaintiff to the
public and as consolation to him for a wrong
done. Compensation is here a solatium rather
than a monetary recompense for harm measurable
in money.
Now, Your Honours, the expression "harm" is

one that seems to have been selected by the
legislature in section 46, and it is true to say

that section 46(2) says:
Damages for defamation shall be the damages
recoverable in accordance with the common law,
but limited to damages for relevant harm. But what section 46(2) seems to be doing is to be
saying that one must, in assessing damages for
defamation, first exclude the matter set out in
particular - I am not speaking in any temporal
sense, Your Honours - first exclude the matters
referred to in subsection (3) which are specified
as particular matters which may not be the subject
of damages; but also it seems to be saying that in
one way or another there must be a relationship
between the amount of damages and the harm suffered

Carson(2)

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by the plaintiff. Now, Your Honours, that means
one does take into account, of course, matters
connected with the feelings of the plaintiff; it
means one takes into account his perception of the feelings others have for him. It means one takes
into account the extent to which other persons have
a particular view of the plaintiff in view of the
defamation of him or her.
It means, however, that it is not possible, in

our submission, simply to say that a particular
plaintiff needs to be vindicated by a particularly
large sum simply because the particular plaintiff
is a person who occupies a particular position.

TOOHEY J: But equally, Mr Jackson, it might be said that

the section does nothing to exclude that as a
measure of damages in a particular case.

MR JACKSON:

I am sorry, Your Honour, I was just going to

add one clause to what I was about to say, and that
was this. Your Honours, I used the word, I think,
"simply" but what I was going to say was that it
needs also to be shown that the amount for

vindication or the consideration of vindication is
something that can be regarded as being damages for

the harm suffered by the person. I do not exclude
the possibility of not seeking to exclude an
element of vindication. What I am saying is that
in the end one must tie back the damages to the
statutory test.

McHUGH J:

That only means that you look at the harm as the

anchor for the head of damages, does it not?

MR JACKSON: Yes, Your Honour. I do not go beyond that. It would be difficult to because Your Honours will see

.subsection (2) says that damages are to be
recoverable in accordance with the common law but
then it imposes a limitation. It is obvious enough
from subsection (3) that there is one or two

aspects to be excluded but the manner in which the
opening words of subsection (3) are expressed, are,
together with the expression in subsection (2),
limited to damages for relevant harm, one would
think means that attention in relation to damages
must in the end be focused on the question whether
the damages are something which can be described as
damages for relevant harm.

TOOHEY J: What does that mean? What does that add to or

detract from what would otherwise be the position
at common law.

MR JACKSON: Well, Your Honour, it just means this: if one

adopts the conventional division into compensatory
damages, to put it slightly and exactly, aggravated

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damages and exemplary damages. Exemplary damages
go by virtue of subsection (3); compensatory
damages are clearly in, as it were, by virtue of
subsection (2). So far as aggravated damages are
concerned, there are some elements of aggravated
damages which one can see by virtue of, for
example, the discussion by Justice Windeyer in
Uren's case, partake not of the nature of damages
for harm but essentially damages which, whilst not
exemplary damages, are in a sense punitive, they,
in our submission, would not be included.
What I am seeking to do in the present case is

simply to say that if one looks to identify the
ultimate test in relation to damages in
New South Wales, is that provided for by
section 46(2)?

TOOHEY J:

In a case such as the present, Mr Jackson, do you

suggest that section 46 results in a different test
to that which would otherwise be applicable at
common law?

MR JACKSON:

In relation to the particular case, except that

we have some separate arguments we want to address
on a number of questions, they overlap a little
with that submission. Generally, the answer is
no, Your Honour, but what I am simply seeking to
suggest is that if one is looking at an award of
damages from the point of view, say, of the Court
of Appeal, the Court of Appeal has to say what are
damages that are, in effect, in the range -
Your Honour I am putting it inexactly in that
regard - for a particular case. That means one must look to what the harm was. Whilst in most cases that would not vary from what the common law
was, it is possible that there are cases which fall
between subsections (2) and (3), if I can put it
·that way.

TOOHEY J: But do you say that this is such a case?
MR JACKSON:	No, Your Honour, I do not say that in relation

to the award generally. What I am saying, though,
is that what the Court was doing, what the Court of
Appeal was doing, was to look at what was the
relevant harm where Mr Justice Mahoney, in taking
the view in favour of the appellants in this case,
seems to be giving, if I can put it this way, a
very wide view, a very wide operation to a
provision such as section 46(2).
Your Honours, could I come back to damages for

personal injuries? The first thing, the relevance
of damages for personal injuries - and if I can go
back to Coyne for a moment, 172 CLR -
Your Honours, the view that a comparison might not

Carson(2)

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properly be made is discussed by Your Honour
Justice Toohey, in the passage commencing page 234
point 7 and going over to page 235 point 8. Your
Honour referred to a number of cases in which the
issue had been mentioned. At the top of page 235,
about a quarter of a way down the page it said:
But that is not to say that the adequacy of
awards in one type of case may be tested by
reference to awards in the other.

And Your Honour then referred to a passage from the
observations of Justice Windeyer in Uren v John
Fairfax & Sons Pty Ltd.
Your Honours, the contrary view appears in the

reasoris for judgment of Your Honours the
Chief Justice and Justice Deane at page 219 point 2
in a passage which goes through to page 221 about
point 9. Your Honours, may we say a number of
things in relation to the approach which, in our
submission, should be adopted by the Court in this
regard in relation to a jurisdiction such as
New South Wales? Your Honours, the first thing is
this, that in saying that the two cannot be
compared, one sees reference being made to what was
said by Justice Windeyer in Uren v Fairfax - that
is the passage cited by Your Honour Justice Toohey
at page 235. Now, Your Honours will see also that
the same approach was taken by Lord Hailsham in the
House of Lords in Broome v Cassell & Co,
(1972) AC 1027 at page 1071.
Now, Your Honours will see, commencing between

Band Con page 1071, His Lordship there sets out
the proposition, then quotes from that same passage
in Uren v Fairfax and goes on to say:
This is why it is not necessarily fair to
compare awards of damages in this field with
damages for personal injuries.

And then elaborates upon that proposition
throughout the remainder of that page.
Now, Your Honours, if I may say so with

respect, that such a conclusion would be drawn from
his observations would, in our submission, have
surprised Justice Windeyer, one might think,
because, if one goes to his observations in the
other Uren case in which judgment was delivered by
the court on the same day, he appears to have

regarded such a comparison as not inapt. Now,
Your Honours, that decision is Australian
Consolidated Press Ltd v Uren, (1968) 117 CLR 185,
and at page 213 about point 7, His Honour said:

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25/8/92

A jury might have awarded him substantial
damages on this count; but, of course, only if
they were satisfied that he had proved a want
of good faith ..... And even so I do not think
that the case was one for exemplary damages,
and I consider that the jury should have been
told so. The verdict for ten thousand pounds,
regarded simply as compensation -

Your Honours would note that -
and without any punitive element, is very

large. It is more than in very many cases is
awarded for serious and permanent physical
injuries that greatly hamper a man in his
activities and affect his livelihood. It
strongly suggests that the jury were in some
way misled.

Now, Your Honours, that seems to be, if I may say
so with respect, a clear occasion on which
Justice Windeyer, himself, in a judgment delivered
the same day on related matters, treated the two,
in comparison, one with the other, as being
germane.

MASON CJ: That may be a convenient time in which to

adjourn, Mr Jackson. We will resume at 2.15.

AT 12.48 PM LUNCHEON ADJOURNMEN

UPON RESUMING AT 2.19 PM:

MASON CJ: Yes, Mr Jackson?

MR JACKSON:

Your Honours, I had been referring before lunch

to the observations of Justice Windeyer in
Australian Consolidated Press v Uren. That case
went to the Privy Council and the decision of the
Privy Council appears in the same volume - that is

117 CLR. It commences at page 221, but the only
part of it potentially relevant for present
purposes appears at page 239. Your Honours, the
passage which is material is the first new

paragraph on the page. It is a point that, so far
as presently relevant, is really made in a side
wind and it is that the element of damages in
personal injuries cases which might potentially be
capable of comparison is the element for pain and
suffering. Your Honours will see that there is a
quotation from Lord Greene who said:

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"In a case of personal injury, apart possibly
from the element of pain and suffering, the
injury complained of is one which can be
linked with a pecuniary valuation ..... but when
you are dealing with damages in a libel case
you are endeavouring to express in terms of
money several different things which are not
really susceptible of a money valuation in any
true sense. You are considering the injury
which the plaintiff has suffered which may or
may not be capable of pecuniary valuation.

Your Honours, as I said, not much is to be gained
by that. The only point about it is that there is
some recognition that the element of damages in
personal injuries for pain, suffering and loss of
amenities, leaving aside economic loss altogether,
is something which does have some similarities with
the concept involved in damages for defamation.

TOOHEY J: Are you suggesting, Mr Jackson, that the

comparison can be made by reference to a particular
award in a particular case as in Cappelletto or to
a pattern of awards established over a time, or
what?

MR JACKSON:

Your Honour, broadly speaking, the latter. May

I seek to explain what I mean by it? Your Honours,
I do not suggest that, except as an indication of
appropriate levels, that there is much to be gained
from looking at individual cases and then trying to
work out or seeing from the judgments what, in a
particular case, was the award for damages for
pain, suffering and loss of amenities. What one is
seeking to say is what is the appropriateness, to
put it loosely, of the amount of the award for
damages for defamation?
In looking at that, we would submit one is

entitled to compare the award of damages with what
are the prevailing awards, if I can put it that

way, that would be obtained for pain, suffering and
loss of amenities, by persons who are seriously
injured. The easiest way of doing it then, in a
broad sense, would be to say that if the prevailing
maximum, as it were, that one would expect to
obtain in damages for personal injuries under that
heading is so much, in a particular jurisdiction, then it would be surprising, and, Your Honours, I
should also say one really assumes that an award of
that kind would be given in a case of the most
serious kind of injury.
If one is able to identify what that is, one

is then able to say that in many cases it would be
surprising, though no doubt not impossible, that an
award for damages for defamation, absent economic

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loss, would exceed such a sum. It may but,
Your Honours, it provides a measure by reference to which it is possible to make a comparison.
Your Honours, may I seek to develop that just

a little by going on to deal with two other aspects
and one of those features is this, that there is
the possibility, of course, for the factors to be
taken into account when awarding damages for
defamation to be similar to those which are taken
into account when awarding damages for pain,
suffering a~d loss of amenities of life.

Your Honours, may I seek to indicate what I mean by that by reference to an example.

If one
takes a public figure, be it a person prominent in
sport or any other area of human endeavour, such a
person may contract an infectious disease and one
which is contagious to those coming into contact
with that person through negligence in the
administration of a blood transfusion to that
person. The damages which that person will obtain
in an action for damages for personal injuries will
include an element reflecting the fact that people
will avoid that person's company and, no doubt, a
fact including also an element for that person's
perception of the fact that other persons will be
likely to avoid that person's company. That is, if
I can put it to one side for a moment, case A.
If one then takes case Band assumes that a newspaper has published about for present purposes
the same person, an article to the effect that a
public figure in the same situation has contracted
an infectious disease through negligence in the
administration of a blood transfusion, but the
article is untrue. Now, the damages for defamation
.will include an element for the fact that people
will avoid that person's company. Your Honours, in
the ordinary course of events it would be strange
if one could not compare the defamation award where

the plaintiff does not have the disease with the
personal injuries award which might be made if the
person did have the disease.

Your Honours, I am not seeking to submit for a moment that the two will be exactly the same.

They

may well be quite different. But if one had a
situation, looking at it from the point of view of
an intermediate appellate court, where the award in the defamation action was significantly higher than the award which might be obtained for pain,
suffering and loss of amenities if that person had
had the disease, it would seem a rather strange
thing. And, Your Honours, it seems, in our
submission, that there is no very good reason, with

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respect, why one not have regard to the prevailing
level of personal injuries award in that regard.
Your Honours, that is an exact case. Could I

go a little more generally. There are many cases,
in our submission, where the assessment of damages
for personal injuries takes into account both the
effect on the injured party's relations with
others, and also the injured person's perception of

or belief as to that effect. Now, Your Honours,
easy enough examples are - and, Your Honours, one
does live in an imperfect world where people do not
always react as they perhaps should in a perfect
world towards those who suffer from injury; they
sometimes avoid their company rather than wish to
have it. But, Your Honours, cases of scarring, for
example, facial scarring, cases of injuries which
may be described compendiously as perhaps ugly

consequences - it is not perhaps always attractive injuries; or cases where people have unpleasant
to be near someone who is incontinent as a result

of an accident. Now, Your Honours, all those
things give rise to an award for damages for pain,
suffering and loss of amenities which will have as
an element in it the fact that that person's
company will be, to put it in a most neutral way,
avoided by the persons, and that that person will
have, or is likely to have, an appreciation of the
fact that the person's company is likely to be
avoided.
And Your Honours, the defamation damages are

not just, of course, for a person being held to
ridicule; they are damages because a person is
shunned or just avoided, but -

TOOHEY J:

Mr Jackson, could I just ask you this: are you

putting this submission on the basis only of an
approach that may be taken by an appellate court to
an award of damages or do you extend it to the
trial process itself, and the arguments of counsel

or indeed the direction of the judge to the jury?

MR JACKSON: Well, Your Honour, may I say for immediate

purposes, of course, I am concerned with the first
of those things: that is the approach taken by an
intermediate appellate court, if I can call it
that, in considering whether the jury's verdict

should or should not be set aside. Your Honour,
and perhaps that is, in a sense, a separate issue;
a separate issue in the sense that it is capable of
being dealt with as a separate issue.
Your Honours, if one goes, however, to the next
aspect of it, there is not, in our submission, any
reason why it would not be appropriate for - if I
can deal first with the position of the trial judge
- there is not, in our submission, any reason why

Carson(2)

25/8/92

it would not be appropriate for a trial judge to

express to the jury a view of what might be the appropriate range in a case of severe personal
injuries for pain, suffering and loss of amenities.
Your Honour, I say that with a degree of

reservation. If I could speak first of all about
it not being improper, as it were, for him to do
it. The desirability of the judge doing it may be
a different question, because it has the potential

of giving rise to collateral issues. One has a
situation where, if the judge makes a mistake,
then, in a sense, another issue has arisen which

might not have arisen. If the Court of Appeal
takes the view - I am sorry, Your Honour, I said a
mistake, but there are shades of mistake, of
course, that can be made in that regard, so it is
capable of creating that issue.
Your Honours, the other thing about it is that

a judge would always have to say to a jury that it
was, in the end, a matter for them. Now, what the
judge would have to be doing would be to be giving
guidance in relation to the proper level of damages
for the defamation and a danger perhaps arises, as
a practical matter, .if one concentrates attention
too much on the personal injuries level. So,
Your Honour, I am sorry I have given a long answer
to that; the point I am seeking to make about it is
that the issue is one which, in our submission,
really arises in its pure form in the intermediate
appellate court. There is no particular reason why
a judge could not give a direction that the jury
might take into account the figures which he had
given to them when summing up to the jury; there
are some dangers if he does so.
So far as the position of counsel is

concerned, Your Honours, if it is that the judge is
able to give such a direction at first instance,
one would think that it must follow that counsel

must be able to address on it. Now, Your Honours,
if counsel are able to address on it, then there are views that would be advanced one way and the other. That is why - and perhaps I suppose in a
sense the possibility of an error may be
compounded, though it should be reduced - but that
is why, allied to one other feature which I shall
mention in just a second, really its principal use
and its pure form use, if I can put it that way, is
in the intermediate court.
The other feature I was going to mention,

Your Honours, is this: that it is really the
intermediate Court of Appeal in jurisdictions where
there is a permanent Court of Appeal, or a body

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25/8/92

which may be so described, which is most likely to
be able to identify what is the prevailing range.

McHUGH J: Is there not something circular, though, in your

argument, because it is a question of what is fair
and reasonable and you begin with the assumption
that what is awarded in physical injury cases is a
that can be translated into other fields, but that fair and reasonable figure in some objective sense
is not the way society values forms of work, or
forms of injury and there are many unexpressed

assumptions. I have always thought it was
outrageous that a rock star or a lawyer get paid so
much more than research scientists - or teachers,
for that matter - but that is society's values.

MR JACKSON:

Your Honour, not for loss of amenities of life,

normally; loss of earning capacity, certainly.

McHUGH J: No, I am just talking in terms of remuneration in

society. You cannot help but think that in
personal injury cases that there unexpressed ideas
that motivate judges and juries, that to some

extent you have got to put up with things, it is
part of the road toll, it is part of the industrial
scene. On the other hand, people may think, or may
unconsciously act on the basis that in defamation
you should not have to put up with a publication in
a large newspaper with a circulation of hundreds of
thousands.

MR JACKSON:

Your Honour, may I say a couple of things

McHUGH J: All I say about that is, it is very difficult to

say what is fair and reasonable in one context is

mention this to you: those who believe that the fair and reasonable in another. If I can just
common law is really based on some form of economic
analysis, I think, would tear your submissions to
pieces very quickly because they would say that the
opportunity costs, and the costs of avoiding the

defamation as opposed to the personal injury -
there are various - different factors operating in
both areas.

MR JACKSON: Well, Your Honour, perhaps we will hear them.

And perhaps I can seek to - anyway, Your Honour,

one has not yet heard them being said. But
Your Honour, may I say a couple of things in

response to what Your Honour put to me. The first
is that I acknowledge, Your Honour, that there is

an element of circulatory involved. May I come
back to that in a moment, but what one is seeking
to do is to do what was consistent with and
contained in the first sentence that Your Honour

put to me. That is that one is looking to see, to
arrive at a verdict, whether it be first instance

Carson(2)

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or appeal, which is fair and reasonable. Your
Honour, "fair and reasonable" is a term which
itself involves a question of relativity. It must
do so. One speaks of something being reasonable.
Reasonable in relation to what? And that means in

relation to other matters. If one is looking to
see what the other matters are, a starting place,
one would think, is to look at other things that
can affect the person who is defamed. Perhaps
there are complications which are presently
irrelevant in relation to the defamation of
corporations. One is looking to see what is the
closest thing to see. One has an individual who
suffers damage by reason of something being said
about that person. One sees also that a person can
suffer damage by being injured and the injury might
not be - it might be physical in the older sense of
division between physical and mental, or it might
be simply something which is mental in that older
way.
Your Honours, if one is looking to see what is

reasonable, why not take into account, we would ask
hypothetically, what is for the moment the
prevailing - or look at what is the prevailing
range for damages for personal injuries. It may be
that the conclusion that is arrived at is that, if
that were applied, it would be too low in relation
to the particular damage that has been suffered by
the person.
Your Honours, it is true to say it is circular

in the sense that defamation damages may go up,
personal injuries may go up. One may go up at a

faster rate than the other. It is no doubt
notorious that in different States at different
times, the level of damages of personal injuries
has been higher than in others; sometimes gone up,
sometimes gone down. I do not mean gone down in
the true sense, but sometimes some have advanced

more quickly than others. Your Honours, it is clear - and I will come back to this in just a moment - that there are some
matters to which one is entitled to look when
seeing if a jury verdict is one that should be
sustained.

McHUGH J: But why test it against judges' verdicts in

damages cases? When I was on the New South Wales
Court of Appeal, I drew a very firm conclusion that
juries gave less damages in personal injuries cases
than judges, and I think that was the view of the
insurance companies, because they always wanted
juries to hear their personal injury cases.

Carson(2)

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MR JACKSON:

Your Honour, could I answer that in the minor

way and then -

McHUGH J: Could I just interpolate: it had some influence

on my thinking on sitting on appeals, because I
must say I used to think that the judges' verdicts
in awards in personal injury cases were too low.

MR JACKSON:

Your Honour, can I say the first thing is, if I

could take the very narrow theme first of all, the
decision to which the court referred in the
particular case, Cappelletto, was an appeal from a
jury and it was a case where atypically the verdict
of the jury had separated out how much was the

amount of the award for damages of this kind. So
that it satisfied the jury or judge test. That is
the first thing.
The second thing, Your Honour, is that what

one is looking at is to see in effect levels - not

to see precise figures, but to see levels. The
nature of the test on appeal inevitably, one would
think, brings it about. Sometimes one can see that
the range of awards available to a jury will be
much wider and have ends further apart than would
be available if a judge were dealing with it. But
the fact that jury verdicts are themselves, by
virtue of the statute constating the court, the
court's constating statute, are to be dealt with by
the same body as deals with appeals from judges
means inevitably that there must be some movement
of them together.
Your Honours, I do not mean to convey that that does not go up sometimes by steps and stairs,
but there is a general and broad coincidence of the
two. It would be wrong, Your Honours, we would
accept, to set aside a jury verdict just because
the court's view of what the appropriate award is
to be for judges is a different thing, but all I am
trying to say is that one looks at the broad band

with appeals from judges and from juries. to be derived from the views of the court dealing

BRENNAN J:

Mr Jackson, I am not sure that I am getting the

full benefit of this argument at all, because if we
are talking about the method by which we are going
to determine benchmarks, the first question is: is
there a benchmark? If a judge is sitting on an
appeal, whether it is in personal injuries or in
defamation, reviewing the verdict of a jury, I
wonder whether there is anything more than an
informed and experienced judicial conscience to
assist in either of those tasks; part of his
experience coming from sitting on personal injuries
cases, partly from defamation cases, partly from -
perhaps contracts cases, for that matter. But if

Carson(2)

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one is looking to see how one is going to compare
one verdict with another, then I would have thought
the weight of judicial experience is entirely
against it.

MR JACKSON:

Your Honour, may I say, with respect, the first

thing in relation to that is that what Your Honour
puts to me represents, if I may say so, with
respect, what, in a sense, should be the position.
But the fact that it should be the position is
subject to two things: the first is that
inevitably, when one has courts that are regularly
hearing appeals, whatever be the class of case, it
would be a strange thing, if I were just to take
the simplest case of appeals from judges, if one
arrived at results which were bizarrely different
in relation to things that are broadly comparable.
Your Honour, in fact, because the nature of an appeal from a judge in that class of case is
fundamentally an appeal from the exercise of a
discretion or akin to that, if the result were
bizarre, that would be a ground for allowing the
appeal. That means that one does see, in respect
of damages for personal injuries or any other class
of case dealt with by, for example, judges, that
there is, in effect, at any time, a particular band
within which the result should be. It may be hard
to identify and it may be done by saying something
is outside or inside without defining the location
of the boundaries of it.
So that, it is true to say that the court

should consider every case on its merits. But in
considering it on its merits, the court has to
arrive at a decision and the object of the decision
is to see, in the particular class of case to which
,I was just referring, whether the case is within
the range of cases available - within which

judgment should be at that time. I am putting that
badly.

If one comes to juries or verdicts of juries,

the same broad concept applies. The band may be
wider, of course, because of the nature of the

exercise. It may be offset or different,
Your Honour, in a way. But the nature of the
exercise is such that inevitably the court cannot
go off on the frolic of its own, the results will
follow a consistent pattern. If I may so, with
respect, that is why we have courts, so that they
will, in relevant respects, act consistently.
The second thing, Your Honour, is this, that
that is one factor which brings about a degree of
consistency. The other thing, of course, is that
one does have the influence of this Court.

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25/8/92

Your Honour, the name of it eludes me for a moment but there was a decision of the Court about, I think, 20 years ago in which the Court looked unusually at what was the appropriate level of
damages for pain, suffering and loss of amenities
in the case of a very badly injured person and held
that a particular sum was too high and that the

appropriate award was, I think, $50,000; Sharman v
Evans, Your Honours.
The decision of the Court in a matter like

that must have an effect on courts below. It must
have an effect, Your Honours, because if one
identifies that as it was as being a very, very bad
case, almost impossible to get a worse case,
leaving aside the effects of inflation where the
Court itself has fixed, as it did, what was the
appropriate sum, that is a figure that courts below
must take into account. One can say, perhaps in
theory, that the courts can go differently but if
one takes the worst case that that must have an
affect, Your Honours.

BRENNAN J:

I understand that once you look to this Court

and you see a certain standard being given effect
to, then that will have its effect in intermediate
courts. But if one is talking about a comparison
between defamation damages and personal injury
damages, I just wonder how the benchmark is struck.

conscience is not aware, as it were, I am not suggesting that the informed judicial
subconsciously, if one likes, of the level of

personal injury damages but is there any other way in which reference is to be had to them? How does
one strike the benchmark?

MR JACKSON:

Could I say first that if one puts it broadly,

¾and I will seek to try to do it more specifically
in a moment, what one sees for example is the Court
saying in the Planet Fisheries case that judges
give weight to current ideas of fairness and

moderation from their general experience. That is
one thing, Your Honours, and when I speak of
general experience, it is general experience
derived from really two areas: the first area
consists of the experience of judges in dealing
with cases of a variety of kinds and it must depend
of course on a number of circumstances, but the
courts have a collegiate air as well as an
individual air. So the experience is not
necessarily not available to a judge hearing the
judge's first case. That is the point I am trying
to make about that.
Your Honours, one sees that in the particular

case: if one looks for example at what
Justice Kirby did in this case, he was able to - he

Carson(2)

JACKSON 1 QC

25/8/92

said this is the current level and unable to
identify what is the current level because we have

recently decided the case of this kind. In the
course of that we discussed in passing, the current
level. So that is one place of finding it.
The other is, Your Honours, I suppose that it

is always possible for the Court to be referred to
cases which indicate what is a current level. If
one looks at what is the benchmark then the
benchmark is what is the result in that case but
all one is seeking to do is to say, in seeing what
the appropriate award for the fair and reasonable
award, one is entitled to see what a person who is
for example, very, very seriously injured would
expect to obtain today.
If one looks at the mechanics of how one would do it then, Your Honour, of course, it goes to the
law reports and unreported decisions and the ones on computers and all the ways of doing it and all
the books on the topic. These things are much
better known now and much more accessible in a
sense than they were.

McHUGH J: But damages in this area of law is an instinctive

thing, is it not? The contrast is between the
ordinary home buyer and the professional valuer;
that the home buyer goes along and he says, I like
that house and I am prepared to pay $300,000 for
it; the valuer goes along and he says, where are
the comparable sales, so it is only worth this
amount or this amount of money will return this in a certain investment, it is only worth $200,000 or
it is worth $400,000. They have different ideas.
Now, you seem to be saying that there is some
principle of valuation in these damages cases.

MR JACKSON:

No, Your Honour, I am not really saying that.

What I am saying - may I say two things: the first

the house, I will pay what you ask, it is worth is that if a buyer who went along and said, I love
every penny of the asking price, if that buyer said
afterwards, did I pay too much, where does one go?
One goes to the valuer who says, well looking at
comparable sales, you were had. And if the buyer
is saying, well, I would not have entered into that
transaction if it had not been said that next door,
as well as the disused factory, there was going to
be a park, and the question is, how much you have
lost, well then you go to the valuer.

McHUGH J:

But your answer has put your finger on the point.

It is really a policy question as to whether the
courts should intrude and press their view of what
is reasonable on the jury system. Supposing in
this case, this case went back and you had three

Carson(2)

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juries all return much the same verdict, what would
a Court of Appeal say ultimately? Still keep
setting it aside on the ground it - - -

MR JACKSON: Well, Your Honour, it would no doubt have to

recognize that, in the exercise that had gone on, the result arrived at by the court would probably
have been wrong but, Your Honour, that does not
mean - I am sorry, Your Honour put it to me on the
basis that what was being done by the court was to
determine whether it was reasonable, but it is a
rather larger question than that, of course, with
respect, but what the court would be doing would be
to say, is it, within the bounds within which it is possible to upset jury verdicts, is it or is it not within the range, and the range is, of course,
wider.
But one way of looking at what the range might

be is to say, what would a person, who was very,
very seriously injured be awarded today? And,

Your Honour, one would think, that is as germane a
question as asking how much the defamed person will
get to buy a home unit or if they invest their
money at a particular percentage.
Now, Your Honours, I am sorry I ended up a

little diverted from what I was about to say next,
and it was this: as well as there being cases
where there is an almost exact correspondence
between the types of damage, and I had referred
Your Honours to the contagious disease case, there
are also many cases where the assessment of damages
takes into account the effect on a person's
relations and perception of relations with other
people, and I had mentioned a case of scarring and

ugly injuries or unpleasant consequences. So there
is a degree of overlapping between the two classes
of case. And also, of course, there is the element
of mental strain and hurt which can be covered in
both class of cases.

Could I refer Your Honours to the

considerations mentioned by Your Honour the
Chief Justice and Justice Deane in Coyne at
page 220 about point 8. Speaking of the difference
between the two class of cases Your Honours said:
Its importance can be exaggerated in that the pain, suffering and loss of amenities of life
in a serious personal injuries case will often
comprehend mental strain and hurt to the
plaintiff caused by the change in his or her
reputation which may seem insignificant in the
context of the direct effect of the physical

viewed in isolation, be at least comparable to injuries but which would, if it could be

Carson(2)

25/8/92

that caused by an untrue allegation about lack
of physical or mental capability or control.

Now, Your Honours, the third aspect to which I wish
to draw attention is this: that it is clear that
the law does permit the quantum of a defamation
award to be tested by reference to some criteria
and, Your Honours, we would ask hypothetically,
"Why should there be an exclusion of one
potentially relevant criterion?" May I deal with
the first of those matters.
Your Honours, it is clear that there can be

taken into account the investment or buying power
of the money which is the subject of the award.
That .is referred to in Coyne at page 235, and
Your Honours will see in the reasons for judgment
of Your Honour Justice Toohey half-way down the
page, Your Honour said:
At the same time, so long as civil juries

are available in defamation actions, there is
much to be said for the judge offering
guidance on damages, for instance by inviting
the jury to consider the investment or buying
power of any sum it is minded to award. Such
comparisons ••••. serve to remind the jury of the implications of money awards and of the need to maintain some proportion between the
hurt to the plaintiff and the amount of
damages.

Your Honours, the observation, although I am
conscious of the fact that Your Honour used it to
obtain the opposite result - the fact that one
might look at the buying power of the money awarded
for the purpose of maintaining some proportion
,between the hurt to the plaintiff and the amount of
damages is clearly a matter that can be examined.
But if one can do that and is looking to see is
there a degree of proportionality between the hurt

to the plaintiff and the amount of damages, we
would submit it is appropriate to have regard to
the amount of damages the person who was injured
physically and dramatically might be awarded.
Your Honour referred to the observations of

Lord Donaldson in Sutcliffe v Pressdram Ltd, (1991)
1 QB 153. If I could take Your Honours very
briefly to that, at pages 178 and 179. The passage
commences relevantly at 178G and goes over to the
next page above the heading "What order should be
made". Your Honours will see, particularly in the
first new paragraph on page 179, where the purpose
of giving the guidance to the juries is expressed
to be in terms which will assist them to appreciate

carson(2)

25/8/92

the real value of large sums. His Lordship goes on
to say:
there is no reason why they should not be
invited notionally to "weigh" any sum which
they have in mind to award.

Your Honours, if one is looking to see what, for example, is the relevant purchasing power of a sum
of money that is to be the potential award of

damages, what one sees is - if I could use
Mr Justice Mahoney's example, he said he looks at the home unit market in Sydney. One can also look
at the number of dollars that might be earned at
particular rates which might or might not last, but
if one is looking at the value of money, we would
submit also why can one not look to see what a
person who is seriously injured personally might
not obtain or be expected to obtain for damages?
Your Honours, that approach is open, in our
submission, is evidenced by the approach taken by
Justice Windeyer in Australian Consolidated Press v
Uren, 117 CLR 213.

McHUGH J:

You referred us to the passage this morning.

MR JACKSON:

I did, Your Honour.

I am not going to read it

out again, but I just wanted to say that what he
did in that passage was to judge the
appropriateness of the size of the award by saying
in effect, "The plaintiff will get more than a
person who is very seriously personally disabled."
That is not decisive, Your Honours, but there is no
reason, in our submission, why the ability to take
it into account should be simply taken away.
Your Honours, one other feature I should mention in relation to this aspect of it is that,
in one sense, there is an element of injustice if
there is a huge disproportion between the two types
of award, because what one is talking about is an

award in respect of personal injuries which a
victim has to continue to carry for the rest of the
victim's life, whereas on.the other hand a
defamation verdict, broadly speaking, terminates
the damage when it is awarded. The last
observation picks up something I think Your Honour
Justice McHugh said in Fairfax v Kelly, 8 NSWLR
131, at page 142C to F.
Your Honours, may I take the liberty to take

Your Honours to what was said in Canterbury
Hospital v Cappelletto.
Your Honour, the relevant pages are in the reasons for judgment of Mr Justice Clarke, with
whose reasons the President agreed. They appear at

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25/8/92

the page numbered 38, a few pages from the back,
and what appeared, if Your Honours look at page 38,
about point 3, it was said:
in awarding $250,000 general damages the jury
failed to act reasonably -

then, towards the bottom of the page, in the last
paragraph on the page, it was said -
losses did call for a very substantial
award ••••. on the other hand the Court, while
not entitled to derive a norm or standard from

a group of judgments, is bound to give weight to 'current general ideas of fairness and
moderation' .

Your Honours will see the next paragraph which, in
effect, sets out an indication of what the court's
appreciation of the current level was.

TOOHEY J:

Mr Jackson, in those reference to general

damages, are we to understand that as meaning
general damages for non-economic loss?

MR JACKSON:

Yes. Your Honours, Mr Justice Mahoney deals with the issue.

It is easier to go to the numbers

at the top of the page, at page 2780 and the next
page.

BRENNAN J:

I think we might have different numbering on the pages, Mr Jackson.

MASON CJ: What is the number of the page in the judgment in

Mr Justice Clarke's judgment?

MR JACKSON:

I am sorry, Your Honour. In

Mr Justice Clarke's judgment, I referred to
page 38, at the bottom of the page, which also has
a number up the top, 2819. The equivalent top
number for Mr Justice Mahoney is 2780, the number

at the bottom of the page is 9.

MASON CJ: Yes, I have it.

MR JACKSON:

Your Honours, it does not really seem to add

anything to the discussion, I mention it for
completeness. I really do not want to burden document which shows the level of damages for personal injury awards. The first document, if I
can give it to Your Honours, is simply something
taken from Britts' Comparable Verdicts in Personal
Injury Claims.
What it does, Your Honours, is to divide up

the types of cases into, for example, paraplegia,

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quadriplegia and so on and sets out the award of
general damages, the jurisdiction in which the
award was made and the page of the book at which it
is to be found. All one has to do, really, is to
look down a column headed Award of General Damages
and one sees, in effect, what the range is.
Your·Honours, the other document is a similar

document prepared from Australian Current Law
headed Table of Quantum of Damages and it tends to
work around the body, as it were - I do not mean
that facetiously - and then sets out the details of
the award and, in many cases, separates out the
PSLA - pain, suffering and loss of amenities - as
being the relevant item.
It is perhaps sufficient to say, Your Honours,

that one does not ever find an award of $400,000
and the awards of $200,000 and in the vicinity
exists but they are for, in effect, serious cases.
Your Honours, could I move then to the next

issue with which I wish to deal and that concerns
what I could describe shortly as being the attack
on Mr Justice Priestley's view on the verdict in
the first matter. Your Honours, it is clear, of course, that Mr Justice Priestley would not have set aside the award on the first count if it had stood alone.
I am sorry, Your Honours, I should have said

one other thing in relation to the personal

injuries thing. I should perhaps formally invite
Your Honours to reconsider the decision in Coyne on
that issue, if Your Honours were of the view that

the decision would otherwise be applicable. May I
indicate, Your Honours, a couple of features in
support of that and I appreciate Your Honours have
been kind enough to allow me to argue the point
without doing so. The first is, of course, that as
a numerical matter - and I do not mean that

offensively, of course - it is a decision of a
court of five members and it is a decision which
will have a significant application, or potentially
a significant application. The second feature
about it is that it does not deal directly with a
jurisdiction in which it is not possible to obtain
an award of damages based on exemplary damages.
Your Honours, we would submit that those features are sufficient to merit inviting the Court
to consider it, bearing in mind also that the
decision on the issue was one in which the majority
was narrow.

BRENNAN J: In Evda Nominees in 154 CLR, the ruling was

expressed in terms of an argument urging the Court

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25/8/92

to depart from the actual decision reached in

earlier cases. Do you suggest that the argument
that you wish to deliver, or wish us to reconsider
in relation to this case, is one on which the
actual decision turned?

MR JACKSON:

Your Honour, I am sorry, perhaps I am not ad idem with Your Honour on that.

BRENNAN J: There were some observations made in that case

with three justices expressing one view, two
justices addressing another. The question of
whether the decision, the actual decision in the
case, turned on those observations is something
which, for my part in all events, I would consider
relevant in determining whether there should be any
question of granting leave. Because if the Court
has decided the matter as a question of principle,
then it seems to me that differing considerations
arise from those which arise if members of the
Court have expressed observations but which are not
necessarily the ratio of the case.

MR JACKSON:

Your Honour, our submission would be that it

was not a matter which was involved in or

fundamental to the decision. Now, may I say in
dealing with that that if one looks at page 234 of
Coyne, the heading is expressed to be:

The question for determination -

and it said:
The central question is whether the award of
$150,000 was so excessive, having regard to -

various matters. Now, Your Honours, there seems to
have been, as Your Honours will see in the last
paragraph on page 234, an argument:

that the jury may have approached the assessment of damages, using as a comparison
awards in personal injury cases -

Now, Your Honours, that complaint seems to have
been dealt with by the Court but, Your Honours, it
is not, in our submission, central to the approach
taken by the Court, because it is very difficult to
see that the decision on this point actually made a
difference to the Court's decision on the point.
Your Honour, I am sorry, I am putting it badly.
That is the point I am seeking to make.

McHUGH J:

I must say I stand to be corrected, but my

recollection is that the point you seek to argue
had nothing to do with Coyne~ my recollection was
that the question in Coyne was to whether or not

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the jury were wrongly directed as to whether they
could take into account other awards. That was all
this Court was commenting on; it never said
anything about whether an appellate court itself,
intermediate or ultimate, could look at these
amounts.

MR JACKSON:. Your Honour, at page 234 about point 8, what

Your Honour is adverting to seems to be mentioned
in passing, in the sense, that the issue that was
there being discussed was whether the jury should
have been told or should have been told more fully
that no help was to be gained from the awards by

then. Now that is, with respect, a different
issue; related of course, but a different issue
from the issue which we have been seeking to argue.
Your Honours, could I also say that the Court

does not seem to have been referred to the
observations of Justice Windeyer in Australian
Consolidated Press v Uren. If I could just say in
answer to Your Honour Justice Brennan, the way in
which Your Honour Justice Toohey's judgment
relevantly appears to be structured at page 235, is
to adopt what was said by Justice Windeyer in Uren
v John Fairfax and then to treat that as being
germane on the question.
Your Honour, I put it that way because

Your Honour appears to have adopted what was said by Lord Hailsham in Broome v Cassell and although
the reporter in note 62 has got the year of that
case wrong, it is the relevant page, 1071, at which
Lord Hailsham adopted what was said by
Justice Windeyer in Uren v John Fairfax and then
went on to treat those observations as leading to
the conclusion that you could not take into account
damages for personal injury. Now, Your Honours, if
that is an underlying feature, then it is
appropriate for the Court to give further
consideration to the matter, if one sees from

Australian Consolidated Press v Uren that the view
that seems to have been derived from
Justice Windeyer's observation was one to which he
did not himself appear to subscribe and, in those
circumstances, Your Honours, it is appropriate for

the Court to consider the particular issue. I am
sorry, that is a roundabout answer to Your Honour's
question; the direct answer is, we would submit,
no, it is not the same issue; it is a related
issue, bu~ we would submit that if it be the same
issue, then the factor to which I have adverted
already are ones that should militate the Court in
favour of reconsidering it.

McHUGH J: There is a world of difference between telling a

jury that they can take into account comparable

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25/8/92

awards of personal injuries. They have got no reports to go to.

MR JACKSON:

Indeed, Your Honour. When I was answering

Your Honour Justice Toohey earlier about the
propriety of, for example, the judge directing the
jury or counsel making submissions to the jury
about it, I sought to adopt the position that the
issues were distinct, though related - that is the
position of the intermediate appeal court and the
position of the trial judge - and the
considerations which would lead to the possibility
of there being difficulties with the trial judge
summing up to the jury on the point are ones that
might lead a court, dealing with that issue
directly, to take a different view.

TOOHEY J: The issues may well be distinct, Mr Jackson, but

if this Court were to give its endorsement to an
approach by an appellate court to an award of
damages for defamation by reference to awards in
personal injury cases, is there any logical basis
upon which that endorsement could stop at that
point and not be extended to the trial process?

MR JACKSON: There is, Your Honour, and it depends on

analysing the functions which were being performed
by the various persons in relation to whom the
issue might arise. What I mean by that is that if
one is looking at it from the point of view of the
intermediate appellate court, its function is to
seek to determine whether, within the limits
described by the Court in Coyne's case, the jury's
verdict is one which should be set aside.
That is its function, and our submission would

be that in performing that function, a feature
,which would be relevant in determining whether the
case falls within the class of cases where the jury
verdict may be set aside is the relationship - I
put it no higher than that - between the quantum of

the award and the quantum of the award in personal
injuries cases.
On the other hand, the function being

performed by the judge is really very different.
He is giving directions to the jury on the factors
to be taken into account by them in determining the
quantum of damages. Your Honours, that the appeal
court may consider another area in determining
whether the jury's verdict is one that should be
set aside does not mean that the jury has to be
directed with the same degree of specificity.
May I indicate what I mean by that,

Your Honours. No doubt the jury would be directed
to give what, in their view of the matter, is

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something that is fair and reasonable compensation.
No doubt jurors, acting properly, would take into
account their knowledge of life, if I could put it
broadly, and their knowledge of, for example, the
purchasing power of money, what you can buy with
what, what you can obtain when you invest, and the
value to people in particular circumstances in life
of having available a lump sum.
One cannot know exactly what every juror would take into account, but if one has a situation where
the judge has to direct the jury on what the
prevailing level of damages for personal injuries
is, then that is something which really in a sense
gives an additional issue to the trial which need

not be there. The answer that I have given really,
Your Honour, is that there is a difference in
principle. The difference in principle derives
from the different functions being performed by the
two tribunals.

McHUGH J:

I asked you earlier and I do not think I really

got an answer, and maybe I did not ask you clearly
enough, but why should you prefer the personal
injury benchmark as opposed to the defamation
verdict benchmark? Why should personal injury
verdicts march in accordance with defamation
verdicts rather than vice versa?

MR JACKSON:

Your Honour, there is not a particular reason.

There are factors which would, generally speaking,
militate in favour of the level of personal
injuries verdicts being above those in defamation,
and may I come to that. But the point Your Honour
puts to me is correct. But if one is looking at
the awards for damages for personal injuries it
would be a perfectly intelligible thing for a court
to say, "Well, the awards have fallen far behind.
Look what people are getting for defamation." But
the fact that the relationship is in a sense
symbiotic does not mean that they grow up in

entirely separate cabinets, Your Honour. Each can
take the other into account.
If I could just elaborate upon the first thing

I said, and that was that the normal run of things would be that damages for personal injuries, for
this element of them, would be larger than those
for defamation. Ordinarily speaking, Your Honours,
one would then come about because the damages which
would be material for personal injuries to be
perhaps compared, would, one would think, be either
at the bottom or at the top of the scale of
seriousness. If, for relatively trivial injuries,
large or small sums are being awarded that gives
one end of it. At the other end of the scale one
would see the sums awarded for people who are

Carson(2)

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massively debilitated and injured by their
injuries. It is in the ordinary run of things,
Your Honours, we would submit, more likely to be
the case than not that the injury which by any
objective standard one would see sustained by a
person who had been defamed, would be less than
that which had been sustained by a person who had to live, say, for 20 or 30 years in a state where
they had, for example, appreciation of their
injuries, a consciousness of everything they had
lost, and could see that the body and brain that
they had did not approach that which they had had

before. That is the only point I would make about
that.

McHUGH J:

The history of the common law both in this

country and in England seems to indicate that the
jurors as representatives of the community have

always seen the matter differently. You find in
report after report judges saying - Lord Diplock,
for example, saying, "Well, juries just give more.
They are niggardly when it comes to personal injury
cases, generous when they come to defamation
cases."

MR JACKSON:

Your Honour, if one were to look at the

comments of that nature which have appeared over reflect a number of things including the personal experience of the people involved.
time, what one probably would see is that
observations of that kind tend to have a
relationship to the time at which they are made.
I do not mean t9 be offensive, but Your Honour

said before the damages for one will always seem

too low and the other too high. I might express a
similar view, I might also express a view that, for
example, damages in Queensland at one point for
personal injury seemed much lower than New South
Wales and perhaps the reverse is the case, but

these things are capable of changing and one should
not place too much weight on the odd window that
one sees in anecdotal references of that kind.

McHUGH J: You seem to be striving for a more direct

connection between the two than has hitherto been
accepted and I can understand the argument that you
leave nothing out, the cost of cinema tickets, the
wages, the cost for houses, what people get for

personal injury cases; it is all lumped in and you
just have some general idea of what is fair and
reasonable having regard to that, but you seem to
be arguing for a more direct connection between
personal injury cases.

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25/8/92

MR JACKSON:

Your Honour, in a sense I am, but I put it that

way for two reasons really: the first is that on
one view of the court's decision in Coyne the
particular consideration has been excluded and that
is the first thing and the question arises as to
the correctness, with respect, of the complete
exclusion of it from consideration.
The obverse side of it is this: if one can

take into account matters of the general kind, of
the levels of money, to put it very loosely, if one
can take into account those things, the tendency
then is to seek to look for those which bear a
broad comparison. That is why one tends to go the
next stage and say that not as a binding guide but
as some kind of guide, one looks to see what

someone would expect to get for massive personal
injuries. It is hardly surprising that it is so
if, in the first place, the causes of action are
ones that relate to the person in the person's
various facets and on the other hand if there is,
as I was seeking to demonstrate a little earlier,
fundamentally some possibility of overlap in terms
of the effects of actual injury on one hand or

defamation on the other. So it is not surprising
one goes - and Your Honours I do not suggest for a
moment that it is binding - but if one goes to see
is it material, yes,it is; how material is it, most
often of considerable but not binding relevance.
The other feature about it is that the

assessment of damages for personal injury is in
most jurisdiction the most frequent type of case in
which there is any assessment of damages and
normally speaking, I suspect, in all jurisdictions
in Australia, the consideration by appeal courts
occurs much more frequently than the situation in
relation to damages for defamation.
It is not surprising in those circumstances

that one looks to an area where inevitably fairly

established levels grow up.
Your Honour, could I just say one other thing

and that is this: some of the matters that
Your Honour was putting to me really were discussed
in a sense by Lord Justice Diplock in Mccarey v
Associated Newspapers Limited (No 2),
(1965) 2 QB 86, and His Lordship's discussion is at
page 109 and, in particular, the paragraph

commencing between Band C. Your Honours will see
it goes on after that but may I just take the
paragraph commencing between Band C. There is no
doubt that the two things are, in a sense,
incommensurable. But we would submit that it is
correct to say that if one is looking at the two
areas of damage, that there is a general

Carson(2)

25/8/92

relationship between the scale of values to be
applied when equating money and reputation and

physical injuries. We would also adopt the next
sentence, that the law should not be:
more jealous of a man's reputation than of his
life or limb -

in a sense.

McHUGH J: But this raises the practical problem though.

There seems to be something wrong with the idea
that you can set aside a jury's verdict on a basis

which they could not consider. If they cannot
consider in detail awards of personal injuries but
are just asked to act on their general experience
of life just to determine what is fair and
reasonable, how can an appellate say, "We will now
use some specialized knowledged and say, 'What you
did was not reasonable'.", even though it may have
been reasonable in accordance with the directions
of the trial judge?

MR JACKSON:

Your Honour, may I say something before I

answer that. I had omitted to refer Your Honours,
in dealing with McCarey's case, to the bottom of
page 109, going over to the top of the next page.
In seeking to answer what Your Honour put to

me, may I say a couple of things: one is that
there is not ever an exact correspondence between
putting it broadly first what a court does at first
instance and what a court does on appeal, except in
exceptional cases where there was a complete
appeal. But if one is talking about the ordinary
courts, there is not an exact correspondence
because the function of the second court is
different from the function of the first.
If one is looking at cases, whether they be

cases in which there have been juries at first instance or cases in which there has been a judge at first instance, although the range of cases in
which it is permissible to do it with juries is
narrower, there are circumstances in which it is
possible for an appeal court to deal with a matter

on a basis or to arrive at a result in a matter on a basis different from that which has been adopted
by the judge or the jury. Miscarriage does not

always result in a new trial. The issue may be one that should have been but was not put to a jury; it is a possibility. So, Your Honour, it is really a
functional question in that regard.
Your Honour, we would submit that generally
speaking the fact that every point is not - I am
putting that in a way that will get me into

Carson(2)

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trouble, I think. I will do it slightly
differently. What I am seeking to say is this:
that the nature of the judge's charge to the jury
is one that first of all has to be intelligible.
The jury have to understand the function that they are to perform and the function that they are to
perform is to, in accordance with law - and by that
I mean in compliance with the judge's direction on
the law to be applied by them, then to arrive at
their verdict. The judge gives them various
directions which the jury has to follow. The judge
does not really have to explain to the jury why the
directions are being given. The judge just tells

the jury, that is what it is. And the jury, within
the bounds of the summing up to them, must make
that decision.
Now, Your Honours, the result arrived at by

the jury, whether it be because in a damages case
it is one that could not be justified by any view
of the evidence they might have taken or whether it
be in a case on some other issue of fact where the
view arrived at by the jury, although put to them
by the judge with proper directions, is one that a
court would set aside as being, to put it shortly, perverse. The judge below does not, in the latter
case, have to tell the jury that their verdict
would be perverse if they arrived at a certain conclusion, does not even have to consider it.
So, Your Honours, it is difficult to find

examples immediately but we submit-that an issue on
which an appeal court decides does not have to be
I am speaking of factual issues, of course - does
not have to be one that a judge has to give a
direction about to the jury and that comes about
because of the different nature of the functions
being performed by the two tribunals.
Your Honours, I do not think I could advance it beyond that.

Your Honours, might I move then to the issue

with which I was going to deal, and that concerns
the attack on Mr Justice Priestley's view on the
first verdict. As I mentioned earlier,
Your Honours, it is clear, of course, that
Mr Justice Priestly would not have set aside the
award on the first count if it had stood alone.
And Your Honours, that that is so appears on
page 530P through to U, and what His Honour said
was that:
If this award were being considered in
isolation ••... it would seem to me to fall into
that area where an appellate court ..... should
not interfere -

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25/8/92

It is equally clear that His Honour thought that
the award on the second publication had been made
by a jury which had been influenced by some
impermissible consideration. That he took that view appears on the same page, 530V, through to
531 I, and he expressed the view that the
possibility must be very real that the jury, when
fixing the figures for the earlier article were
influenced by the same factor that made them go
wrong in their award on the later one.

McHUGH J: But is that a sufficient ground to set aside a

jury's verdict, that there is a possibility that it
went wrong? Surely you have to prove a probability
that they went wrong?

MR JACKSON: Well, Your Honour, that is really what he is

saying, with respect, when he says, "The
possibility must be very real."

Now, Your Honour, perhaps the word

"probability" should have been used, but there is
not any reason, we would submit, to think that
His Honour was seeking to apply a different test.
What he says is:
the possibility must be very real that the
jury ••... were influenced by the same factor
that made them go wrong in their award on the

trial.
This is particularly so in view of the way the
cases on the two articles were intertwined at
the trial.

.. Now, Your Honours, there is not, in our
submission, anything unusual in adopting such a
course and Your Honours, could I take Your Honours
to the way in which the test has been expressed in

the Court on a number of occasions. Your Honours, the first case is King v Ivanhoe Gold Corporation
Limited, (1908) 7 CLR 617. In that case,
Chief Justice Griffith said - and I will take
Your Honours to the passage in just a moment - that
when a jury had gone wrong on one part of the case,
it is sometimes difficult to say that the mistake
does not effect another part of the case, even

though the other part is technically severable. I
am sorry, Your Honours, I do not in fact have the
case here, I am afraid. Your Honours, I will come
back to it tomorrow, if I may; it is 622 and 628,
but the passage is referred to in Willis v
David Jones Limited, (1934) 34 SR(NSW) 303 at
page 317. Could I give Your Honours some copies of
that case.

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25/8/92

Now, Your Honours, at page 317,

Chief Justice Jordan sets out the summary of the
tests, and the other members of the court agree,
and about half-way down the page His Honour said:
The further question whether the new trial
should be limited or general is peculiarly one
of discretion, as to which in particular cases
eminent judges have differed. Certain guiding
principles have been indicated, such as that a
new trial should be general where the facts
establishing damages are involved with the
facts establishing liability ..... or where an
error as to damages, though technically
severable, suggests that the jury may have
taken a biased view of the whole case .•... or
where there is reason to suppose that there
has been a compromise verdict.

I am sorry, Your Honour, if that does not paraphrase exactly what was said in the -

McHUGH J: This is a very different area of law; I mean,

prima facie there should be a new trial on all
issues once there has been some error, whether it is on damages or not, and the question always is,
is whether a matter of discretion the trial should
look at the issue of damages, but here there is an
independent cause of action which has succeeded and
you are seeking to invoke error on one to set aside
another one.

MR JACKSON: Well, Your Honour, perhaps I should have said

before, what I am seeking to do is to indicate at
the moment the general principle and then,
Your Honours, in Australian Consolidated
Press v Uren, is a case where the Court did what

Xour Honour is talking about. In other words,
separate counts, set aside a verdict on, let us
say, count A, because of error on count B.

McHUGH J: Was it inflammatory language that was the ground

in counsel's address?

MR JACKSON:

No, Your Honour. The particular point I think

was that the verdict on one, which I think was
being a fellow traveller or a spy, was thought to
be absurdly high and the figure awarded for an
allegation of incapacity to run a duck or chock
raffle.

MCHUGH J: Raffling a duck?

MR JACKSON:

Yes.

It was thought to be also rather higher

than the bird merited. But it was set aside,
Your Honour, because it was thought it must be

Carson(2)

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affected by the one that was plainly wrong. May I
come back to it in a moment.

MASON CJ:

Mr Jackson, have you not got a particular problem

in this case? Mr Justice Priestley is unable to
identify the impermissible error that affected the
second verdict. All he can do is to say that the possibilities were of the inclusion of a punitive
element or a prejudice. Had he been able to
identify prejudice against the defendant as
affecting the second verdict, then perhaps it would
be natural to say that that prejudice was carried
into the first verdict, or might be.
But if you look at the punitive element as to

possible impermissible element, is not the
possibility far stronger that the punitive elements
would have affected the second but not the first
verdict, having regard to the circumstances in
which the second publication took place?

MR JACKSON:

Your Honour, there is no doubt that the

punitive element, we would submit, would have
affected the second verdict of course, but one then
has a situation where there are two verdicts, each
of which is prima facie high. I will not give epithets to the highness, but each of them, we
would submit, is one that the members of the court
regard as prirna facie high. What is said by
Mr Justice Priestley is that the verdict on the
first count is high, it is within, albeit perhaps
just within, the range and "I wouldn't set it aside
if it appeared by itself." But there is something
wrong with the second one. What is wrong is
something that seems to be higher - he does not

attempt to define which it is, Your Honours. It is
perhaps punitive, perhaps prejudice.
What he is really saying is that it is a case

where it falls within, in effect, the last class of
setting aside things, that is where it is

impossible to identify the error but it is obvious

from the result that there is error. If there is
error of that kind in relation to the second, there
is not really any very good basis for
distinguishing between the first and the second
because the cases were conducted together.
Could I refer Your Honours to what he says at

page 531E to I. That is where he says:

The possibility must be very real that the
jury •.••. were influenced by the same
factor ...•. This is particularly so in view of
the way the cases on the two articles were
intertwined at the trial.

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25/8/92

Your Honours, if it be the case that in respect of the second publication the jury, perhaps in a way not absolutely easy to identify, got it wrong, then
there is really no reason why one would say prima
facie it is right on one and wrong on the other.
It seems to be a case, we would submit, where the
error, perhaps unidentified, infecting the second
is as likely to have infected the first.

McHUGH J:

I have a more difficult problem.

Why should you

assume that - assuming in your favour that the jury
was in error on the second cause of action, why
should you attribute it to the inclusion of a
punitive element or prejudice against the defendant
as opposed to just simple overvaluation of the
plaintiff's claim? It is just guesswork.

MR JACKSON:

In His Honour's defence, if I can put it that

way, at the start of his reasons, in the second
paragraph on page 527, he refers to the fact, and
it goes on to the next page, that it is difficult
to find any way of expressing exactly how one
determines whether the judgment is right or wrong,
in effect. But when he is looking at it, at
pages 530 and 531, Your Honour, what he seems to be
doing is really dealing with the case in the light
of the way in which it was put. What I mean by
that is that the reference to the inclusion of a
punitive element seems to take one back to the
consideration that relates to the urging upon the
jury by my learned friend that the defendant should
be brought to its knees.
Your Honour, I am not putting it very well

because I will come to it a little later but
Your Honours will recall that what the President
had said was that, in effect, the amount of the
yerdict was such that it seemed that the jury must
have taken into account some punitive element.
That seems to be in a context where my learned
friend had said to the jury - it had been put to

the jury, "The defendant should be brought to its
knees." The Court of Appeal said that, by itself,
was not sufficient to set aside the verdict because
of what else had been said, but the punitive
element lingered. That is why His Honour was
really referring to the punitive element in that

passage. It is something really said in response
to the way in which the case was run rather than
His Honour attempting to give a definitive analysis of what is incapable of being analysed.
I had referred Your Honours to Willis v David Jones Limited, which, in our submission, sets out
the principle and it was adverted to in a decision
of the Court in the same year; that is Coroneo v

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Kurri Kurri and South Maitland Amusement Co
Limited, (1934) 51 CLR 328.

DEANE J:

Mr Jackson, taking you back, was any objection

taken at the trial to counsel's passing comment
that the defendant should be brought back to earth?

MR JACKSON:

Yes.

DEANE J: And was a direction given?

MR JACKSON:

Your Honour, a direction was given, but not

specifically referring to that, simply saying that
the jury should not take into account any punitive
element.

DEANE J: So the suggestion is the jury disregarded that

direction?

MR JACKSON:

Yes.

Your Honour, it appears at the bottom of

page 372 between F and H. Your Honours will find
my learned friend's verba ipsissima, and
Your Honours will see that it was said:
It is about time this defendant was brought
down to the ground, you may think -

Now, some separate questions arise in relation to
this, but may I deal with those later? What
happened then is on the next page, and this is
before the judge sums up. At the bottom of the
page Mr McPhee says at letter V:
We submit my learned friend's remarks that it is about time that this defendant was brought
to the ground was an invitation to the jury to
award damages to punish.

His Honour then said:

I will tell them that>

McHUGH J:	I hope he did not tell them that.
MR JACKSON:	What he told them, Your Honours, is at

page 4090 to the bottom of the page:
you must not include in your verdict any
element by way of punishment of the
defendant -

and the top paragraph on the next page.

McHUGH J:

Was there nothing more specific than that?

MR JACKSON:

That is it, Your Honour.

I did refer

Your Honours to the top of page 410. May I come

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back to Coroneo because I could not find the

reference quickly in it. May I take Your Honours
to what was said by Mr Justice Taylor in Pateman v
Higgin, (1957) 97 CLR 521, and at 531 His Honour
referred to the principles which had been set out
by Chief Justice Jordan in Willis v David Jones
Ltd, and that contains the passage to which I
referred earlier. The case is referred to also at
page 527 about a third of the way down the page by
Justice Kitto.
Those are general statements. An application of them may be seen to a case of some similarities
the present in Australian Consolidated
Press Limited v Uren, (1966) 117 CLR at page 185.
Uren's case, as appears from the headnote, was one
which was an action for defamation where there were
four published articles pleaded in four separate
counts and 5000 pounds damages on the first count,
10,000 on the second, 15,000 on the third and
fourth counts together.
Your Honours will see, if I can go to the

bottom of page 195, the last paragraph on the page,
Justice Menzies sets out first the substance of the
first count and that is the duck raffle. This
relates to something that was published on
8 December 1961. The second count, at page 196 is
a publication which was 11 months later in a
different publication and it relates to a different
subject-matter which is set out in that paragraph.
The third and fourth counts are set out in the
second new paragraph on page 196 and they were
publications which took place in February 1963.
Whilst there is a broad relationship of subject-

matter between the second, third and fourth, they
are quite different allegations.
Could I just take Your Honours first to a

passage which appears at the bottom of page 195
where Justice Menzies says in the last four lines

and speaking of the first count:
Although a politician is no doubt entitled to
compensation for any loss of reputation
brought about by an earthy political libel, it
would be going beyond the authorities to allow
the publishes of such a libel to be punished

by an award of exemplary damages. It was
ridiculous to award five thousand pounds for
this libel.
Your Honours will note what follows in the

next sentence:

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The award casts doubt upon the reasonableness of the whole verdict. There must be a retrial
with regard to the first count.
Your Honours, if one goes then to page 200,

about point 7, Justice Menzies expressed the
conclusion that counsel for the plaintiff exceeded:
the limits of what was permissible in an
endeavour to inflame the jury against the
defendant, and that his success in doing so
may well have been reflected in the verdicts
that were returned. In these circumstances, I
do not think that the damages awarded upon
counts three and four can be allowed to stand.
I think, therefore, that the verdict was
rightly set aside.

But he goes on then to say what appears in the next paragraph and says, in particular, in the last two
lines:
If, however, counts three and four were the
only ones to be considered, I am nevertheless
disposed to think that I would agree with
Herron CJ and Wallace J that a new trial
limited to damages would meet the justice of
the case for, with respect to these libels,
the real issue, as it seems to me, was the
amount at which damages should be assessed.
Taking the case as a whole ..•.. I cannot be
satisfied that the prejudice of the jury did
not affect their consideration of the question
of the liability of the defendant in respect
of the libels covered by the first and second
counts ••••. ! have reached the same conclusion
as Walsh J that there should be a new trial
generally.

Your Honours, at page 215, at about point 7, the last paragraph of his reasons for judgment,

Justice Windeyer said: I need not consider whether we would
interfere with the verdict on the third and
fourth counts if it had stood alone and were
criticized only as being excessive ..... The
verdicts taken together show that the jury
were led into a mistaken approach to the case
as a whole ••••• there must be a new trial on
all issue.

And at page 219, at about point 2, Justice Owen
said that he agreed that:
there is insufficient material to justify an
award of punitive damages, certainly on the

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first and second counts. I have felt some
doubt about the third count but, since the
jury were wrongly directed that they might
award punitive damages on each of the counts,
it is plain that there must be a new trial and
in all the circumstances that new trial should
not be limited to two only of the three
counts.

Your Honours, there are no doubt various considerations relating to the particular case that
militated in favour of the decision at which the
members of the court arrived in those
circumstances, but what is apparent is that the
members of the court thought it appropriate for
them to set aside verdicts which, considered in
isolation, might stand because of matters that
appeared when dealing with other verdicts and other
verdicts dealing with quite separate publications
both as to subject-matter and as to time.

McHUGH J: The context was that the verdicts had been set

aside on all counts. When the matter came to this
Court, the only issue was: should there be a trial
on all issues or should it be a trial limited to
damages? Justice Walsh had dissented in the Full
Court.

MR JACKSON:

Your Honour, the resolution of that question

must have turned on the propriety of the Full Court, as it then was, taking or not taking a course of the nature contemplated by
Mr Justice Priestley in the present case.

McHUGH J:

I do not see that at the moment, Mr Jackson.

seems to me that what Mr Justice Priestley is doing
and what the Court in Uren did as a whole are two
very different things. You had misdirections on
all counts about punitive damages and inflammatory
conduct on the part of counsel. Punitive damages
may have been available in relation to the third

count.

MR JACKSON:

Your Honour, if one goes to what was said by Mr

Justice Owen in the last reference I gave, what he seems to be seeking to convey there is that the
punitive damages were not available on the first
and second counts. They may well have been
available on the third count, but because the jury
were told they could give punitive damages on each
of the counts there should be a new trial on the
whole of the three counts. That seems to have
involved that notwithstanding that the decision on
the third count might have stood by itself, the
presence of the misdirection in relation to the
first and second counts had the effect that the
third one should be set aside.

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25/8/92

Your Honour, that seems to be the underlying notion and it then becomes a question of the
application of the notion to the general concept
which, if I may say so with respect, is a concept
which does seem to be supported by the decisions,
the application of that concept to the particular
case. The broad proposition, of course, about
disturbing a verdict is that which is referred to
in that Uren case at page 203, the top of the page,
by Justice Windeyer, at about the sixth line on the

page. He said:
An appellate court is always reluctant to disturb the verdict of a jury in a libel
action. But that assumes a verdict that was

of which no serious criticism could be made, a given by a jury properly instructed in a trial
verdict that does not reflect passion or
prejudice.

Your Honours, to us that is a general observation.
One has to look at the trial and the best
reflection of the possible prejudice is that one of
the verdicts was one that seemed to be outside the
range and one -

McHUGH J:	Do you put it higher than two of the five judges perhaps support your proposition, namely
Mr Justice Owen and Mr Justice Menzies, because
Mr Justice Taylor and Mr Justice Windeyer said
punitive damages should not have been awarded on any count.

MR JACKSON: Well, Your Honour, perhaps I might tomorrow

seek to count up the numbers a little more exactly,
with respect, but Your Honour, the case itself we
do not propound as being a case that decides
definitively what the principle is, but it is a
case, we would submit, that provides, although
views as in Tolley and Fry differ as to the

application of it, it simply is a case applying,
where a number of members of the court took the
view that the general principle was clearly capable
of applying to a number of different verdicts in
defamation cases. Whether it should be applied in
a particular case is a different question, but it
is certainly open to be applied.
Now, Your Honours, I had referred earlier to

some observations from King v Ivanhoe Gold
Corporation, but did not have the case; I gave
Your Honours the reference, I think, to 7 CLR 617
at page 622 and 628. At page 622,
Chief Justice Griffith, at the conclusion of his
judgment, said:

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one part of the case, although technically Moreover, when a jury has gone quite wrong on
severable from another, it is sometimes
difficult to say that the mistake made on one
point does not affect their views on another
point.

And at page 628, at the conclusion of his reasons for judgment, Justice O'Connor said:
Under these circumstances -

speaking of particular circumstances -
it seems to me that there is not sufficient
ground to interfere with the discretion which
the Court has exercised in not separating
these two grounds.

Your Honours, that is the submission that we wanted
to make in relation to that issue. We would submit
that it was perfectly open to the court, and in
particular to Mr Justice Priestley, to adopt the
course which he did in relation to it, having taken
the view that he did about the verdict on the
second count.
Now, Your Honours, I propose to move on now to

other matters.

MASON CJ:

We could perhaps make a start, Mr Jackson.

MR JACKSON: Certainly, Your Honour.

MR JACKSON:

Your Honour, may I move then to what I might

call, if I may, the minor points raised by our
learned friends. They concern some of the
observations made in the course of the reasons for
judgment of Mr Justice Kirby. Your Honours will
recall one was the reference at 469S to the largest
verdict for general damages in the history of the

State and of the country and, Your Honours, some
other matters related to that.

Your Honours, I have dealt with those in part in the course of our submissions already.

May I
just say a couple of things about them.
Your Honours, try as one may, the imputations that
were made were serious but, in our submission, they
were not of the character which merited the awards
in question and we would submit that, taken at
their worst, they were simply out of the range.
The matter, of course, inevitably, is one of
impression and I will come to the detail of the
case a little later. But what we would say is that
the formation of the relevant impression in that
regard is one for the Court of Appeal and it cannot

Carson(2)

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be simply that an appeal to this Court succeeds on
every occasion on which there is a difference of
view or a dissentient in the Court of Appeal.
Your Honours, if one looks at the views that

were taken by the majority in the particular case,
Mr Justice Priestly at page 528 described the
second award as being extraordinarily large.
Mr Justice Kirby, at page 471 described the awards
as being:
out of all proportion to the circumstances of
the case -

Your Honours, those observations of the majority, we would submit, reflect a view which represents a
conclusion to the test which was properly applied
and the fact that someone, a third member of the
Court, arrives at a different view does not mean of
itself that that view ceases to be justified.
Your Honours, could I come into the next matter raised by my learned friends, and that
concerns the observations of the President at
page 470 in relation to the question of an apology.
Your Honours will see that referred to at Bat
page 470 where he said:
It is especially relevant to remember that
Mr Carson would have been willing to refrain
from any proceedings at all in respect of the
first article if only two additional matters
had been added to the apology which was
published.

Now, Your Honours, what one has to do is to take
what is being said in those observations in
context, and the context in which they appear was
'this: that His Honour said at page 468 under the
heading, "The verdicts are excessive", at the
bottom of the page:

I accept for the present purposes that it was
open to the jury to conclude that the
imputations in each of the articles were
seriously defamatory.

He describes Mr Carson. He accepts at letter D -
that the jury accepted that he had suffered
great hurt and damage.

He refers to the fact that there was no claim for
special damages and no allegation that a client had been lost, and he accepts that it was still open to compensate him in a substantial way. He then goes
on, Your Honours, to endeavour to arrive at some

Carson(2)

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conclusion on the issue and he accepts at letters M
and Non page 469 -
that the jury was entitled to award aggravated
damages for -

amongst other things -
the want of a prompt and full apology -

and accepts again the seriousness of it. But
having said all those things, he then comes to
arrive at a view. Your Honours will see that one
of things he is doing is he is endeavouring to see
what effect did it have on the appellant at the
time, and in the passage to which objection is
taken by our learned friends, we would say that the
judge was simply saying that a measure of the
appellant's perception of the hurt which he felt is
that at that time he was prepared to settle for a

suitable apology. Your Honour, he really is not
saying any more than that, namely, it is a factor
to be taken into account, and indeed, that is
something which the appellant himself had said at

87T to u. He was asked, "Why did you start the

proceedings?" He said, "Because I could not get a
suitable apology."

MASON CJ:

Mr Jackson, that might be a convenient time to

adjourn.

AT 4.18 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 26 AUGUST 1992

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CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

respect of the first article if only two	additional matters had been added to the
apology which was published.

one should approach the analysis of the present	present case. It is a question of the way in which
case in terms of principle.

Lord Hailsham in his judgment in Broome v Cassell,	the PQ17 convoy case, and perhaps it is worth,
because this very important question has been
thrown up earlier in the argument, if I go very
briefly to what Lord Hailsham said in that case on
this point. The report, Your Honour, is (1972) AC 1027 and the relevant passage is at page 1070 to 1071. His Lordship, in the last paragraph on page 1070 deals with the subjective element and then
over on page 1071 His Lordship says this, second paragraph:

say, "This charge is baseless.	I proved that by
pointing to this verdict."

imputation upon which the plaintiff succeeded.	I
think that is to be found at page 531S when
His Honour was dealing with the question whether
there should be a general new trial or a limited
retrial, limited to damages.

prepared to take an early adequate apology.	In
other words, Mr Justice Kirby, ignoring the

Appeal.	If one is to be wise after the event it is
perhaps unfortunate that there was no opportunity

actions for defamation subject to two exceptions.	I am speaking in this context of actions,
Your Honours, in the supreme court. As Your Honour
the Chief Justice and Justice Deane pointed out, a
different position obtains in the District Court of
New South Wales, but in the supreme court, to which
of course the major cases go or should go, the jury is the constitutional tribunal for trying issues of
fact in a defamation action unless the parties
consent to trial by a judge alone or unless the
issues in the case involve complicated questions of
scientific investigation. Unless Your Honours want
me to, I shall not take Your Honours to the group
of sections in the Supreme Court Act of 1970, but they are sections 85 through to and including 89,
and in the New South Wales Practice Book, the red book, volume 1, page 1150 et seq. Section 89(2) would enable the supreme court to make an order for
the trial of a defamation action by judge alone
where:

trial to clearly prove the necessity.	It is
not enough to raise a doubt.	If any case

conjecture. The contention of the defendant	that the verdict must have resulted from a
compromise among the jury rests merely on
conjecture.

restraint is that each case of serious defamation -	justifying the treatment of jury verdicts with
and these two cases were paradigms - is almost
inevitably accompanied by a complex of unique
circumstances which defy rational comparison with
other cases of defamation and other torts. In other words, each case is, to use a colloquial
expression, a one-off sort of case.

possibilities which exist only in theory.	But
we must recognise that out of the human attributes for which we prize them they may sometimes make an award on a wrong basis,

at pages 124 to 125, in the joint judgment of	Sir Garfield Barwick, Sir Frank Kitto and
Sir Douglas Menzies. Their Honours referred, in
the middle of page 124 to a submission by Planet's
counsel:

would be slow to disturb it.	It depends on the
particular case.

$300,000 in 1979.	It must be equivalent to over $1
million in 1991.

Your Honours, on the same page 469S to U, one comes to the second passage, which is, in effect,
relied on by our learned friends.	In respect of

Now, Your Honours, I would seek to identify first	precisely what was said in relation to that topic	in the Court of Appeal and, Your Honours, that
appears at pages 466 to 468 - paragraph 15
commencing on page 466.

regarded such a comparison as not inapt.	Now,
Your Honours, that decision is Australian

Your Honours, I am not seeking to submit for a moment that the two will be exactly the same.	They
may well be quite different.	But if one had a

express to the jury a view of what might be the	appropriate range in a case of severe personal
injuries for pain, suffering and loss of amenities.

more quickly than others. Your Honours, it is clear - and I will come	back to this in just a moment - that there are some
matters to which one is entitled to look when
seeing if a jury verdict is one that should be sustained.

appropriate award was, I think, $50,000;	Sharman v
Evans, Your Honours.

that must have an effect on courts below.	It must
have an effect, Your Honours, because if one

conscience is not aware, as it were,	I am not suggesting that the informed judicial
subconsciously, if one likes, of the level of
personal injury damages but is there any other way in which reference is to be had to them? How does
one strike the benchmark?

the house, I will pay what you ask, it is worth	is that if a buyer who went along and said, I love
every penny of the asking price, if that buyer said afterwards, did I pay too much, where does one go?
One goes to the valuer who says, well looking at
comparable sales, you were had. And if the buyer
is saying, well, I would not have entered into that
transaction if it had not been said that next door, as well as the disused factory, there was going to
be a park, and the question is, how much you have
lost, well then you go to the valuer.

a group of judgments, is bound to give weight	to 'current general ideas of fairness and
moderation' .

that the jury may have approached the	assessment of damages, using as a comparison
awards in personal injury cases -

cases in which there have been juries at first instance or cases in which there has been a judge	at first instance, although the range of cases in
which it is permissible to do it with juries is
narrower, there are circumstances in which it is
possible for an appeal court to deal with a matter
on a basis or to arrive at a result in a matter on a basis different from that which has been adopted
by the judge or the jury. Miscarriage does not
always result in a new trial. The issue may be one that should have been but was not put to a jury; it is a possibility. So, Your Honour, it is really a
functional question in that regard.
Your Honour, we would submit that generally
speaking the fact that every point is not - I am
putting that in a way that will get me into

affected by the one that was plainly wrong.	May I
come back to it in a moment.

attempt to define which it is, Your Honours.	It is
perhaps punitive, perhaps prejudice.