Carson v John Fairfax & Sons Ltd

[1993] HCA 31

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ

CARSON v. JOHN FAIRFAX AND SONS LIMITED and SLEE AND ANOTHER

(1993) 178 CLR 44

16 June 1993

Defamation

Defamation—Libel—Trial by jury—Damages—Whether excessive—Function of appellate court—Verdicts in proceedings in respect of two closely related defamatory publications heard together—Appropriateness of appellate court measuring total damages against total harm suffered—Relevance of awards in person injury cases—Judge's guidance to jury on quantum of damages.

Orders

No. S23 of 1992 Appeal dismissed with costs.

Application by the respondent for special leave to cross-appeal refused with costs
No. S24 of 1992

Appeal dismissed with costs.

Application by the respondents for special leave to cross-appeal refused with costs.

Decisions

MASON CJ, DEANE, DAWSON AND GAUDRON JJ The appellant, Mr Nicholas Carson, the plaintiff in the two actions, appeals against orders of the New South Wales Court of Appeal which set aside two judgments based on jury verdicts returned in his favour in two separate defamation actions brought against the respondents which were heard together except for one aspect of the second action to which we shall refer shortly. The first action was brought against John Fairfax and Sons Limited ("Fairfax") and the second against both Fairfax and its employee journalist, Mr John Slee. The actions arose out of two articles written by Mr Slee and published by Fairfax in The Sydney Morning Herald in 1987 and 1988. In actions in the Supreme Court of New South Wales before Loveday J and a jury, the appellant was awarded $200,000 in respect of the first article and $400,000 in respect of the second article. By majority (Kirby P and Priestley JA, Mahoney JA dissenting), the Court of Appeal set aside both verdicts as excessive and ordered, in each case, a new trial limited to the question of damages.

2. The respondents seek leave to cross-appeal from the orders of the Court of Appeal that the new trials of the appellant's actions be limited to the question of damages and from the orders that the respondents pay the costs of the trial before Loveday J. In the alternative or in the event that special leave to cross-appeal or the cross-appeals themselves are refused, the respondents wish to rely upon notices of contention filed in both actions. These notices list many grounds upon which the respondents argue that the decisions of the Court of Appeal should be affirmed, although a number of grounds were not pursued in argument.

The facts
3. The two publications dealt with aspects of the long-running litigation involving Dr Leszek Rajski and Tectran Corporation Pty. Limited ("Tectran"). Mr Carson is a partner in the legal firm Blake Dawson Waldron, the solicitors at the relevant time for Tectran. He is very prominent in the legal profession, with a character and reputation of the highest order. On 21 April 1987, Fairfax published an article written by Mr Slee entitled "Dr Rajski: a war on many fronts". The article appeared on the editorial page of The Sydney Morning Herald, a newspaper with extensive circulation throughout New South Wales and other States and Territories of Australia. The article contained the following passages:

"Dr Rajski: a war on many fronts LAST WEEK'S account of developments in the Rajski case quickly attracted adverse comment. ... One of the conditions of the Court of Appeal's stay was that Dr Rajski attend regular examinations before a psychiatrist approved by the court, so that it could have expert evidence as to his mental and physical condition. Dr Rajski has duly been consulting Dr William Metcalf, a Macquarie Street specialist. Dr Metcalf has reported to the court that Dr Rajski is perfectly sane, but in need of rest. In one of his latest reports to the court, however, Dr Metcalf has also reflected on the conduct of Mr Nick Carson, a partner of Dawson Waldron. (This is the firm which has been acting for Allen Allen and Hemsley, who are accused by Dr Rajski of abuse of process.) As a result of Dr Metcalf's comments about him, Mr Carson has threatened to sue for defamation. Now, it is a moot point whether Mr Carson can get anywhere with such an action, whatever uncomplimentary things Dr Metcalf might say about him. Generally, what an expert witness says for the purpose of court proceedings is privileged and cannot give rise to defamation proceedings. In any event, Dr Rajski has not taken kindly to Mr Carson's action against Dr Metcalf. He is seeking to have it declared part of a pattern of conduct that he alleges is in contempt of court. In October 1985, Dr Rajski took proceedings against Mr Carson for contempt of court on two grounds. He alleged Mr Carson had sought to persuade two key witnesses - who had given evidence in Dr Rajski's favour before Justice Miles - to change their testimony. And he alleged that Mr Carson had sought to influence the Legal Aid Commission by telling it that Dr Rajski's cross-action against Allens was without foundation and would fail. (Dr Rajski's legal aid was terminated on October 22 last year). In April, 1986, Dr Rajski also alleged that Mr Carson had brought defamation proceedings against his solicitor, Mr Arthur Carney, for the purpose of depriving Dr Rajski of his services. Whether or not that was Mr Carson's purpose, Mr Carney ceased to act for Dr Rajski forthwith. Curiously, Mr Carson appears not to have pursued the defamation action. ... But the justice system depends absolutely on lawyers being different. They might fight for clients, but they must fight fairly. The real importance, however, of the Rajski case is not merely that it raises issues about the probity of lawyers. It is that it tests the ability of judges drawn from a tight-knit profession to judge senior members of it."

4. In May 1987, the appellant commenced the first action against Fairfax. At trial Mr Carson gave evidence that, despite the embarrassment he suffered in encounters with colleagues after the article's publication, he did not intend to sue provided a proper apology was printed. Mr Carson informed Fairfax accordingly and negotiations then ensued as to the form of an apology. Finally, eight months later and after proceedings had been instituted by the appellant, an apology was printed in The Sydney Morning Herald. The apology acknowledged two errors on the part of Mr Slee but failed to address a number of the matters of substance of which Mr Carson had complained. From the appellant's point of view, the apology was "inadequate and too late".

5. As well as seeking an apology, the appellant had offered to discuss the Rajski litigation with a senior Fairfax journalist and to provide whatever factual material he could, with a view to ensuring that any subsequent articles were free from the errors and alleged bias of the first article. Fairfax did not take advantage of this offer. Instead, on 6 May 1988, Fairfax published the second article written by Mr Slee. It contained the following passages:

"The criminal phase of the Rajski case THE decision of the State Director of Public Prosecutions to institute criminal proceedings against some of the main actors in the Tectran v Raybos litigation has given it a new and potentially far-reaching dimension. The DPP has so far begun to move against two people and is actively considering prosecuting two more. The DPP has issued a summons against Mr Moshe Yerushalmy, a director of both Tectran Corp Ltd and Scitec Communications System Ltd, and is preparing a summons against Mr David Bruce Cowper, a former employee of Scitec. ... On February 1 this year Justice Yeldham granted the DPP leave to prosecute Mr Yerushalmy for perjury, allegedly committed in proceedings before Justice Yeldham in 1981 and 1982. The alleged perjury related to Mr Yerushalmy's evidence as to his qualifications and experience, which he had claimed gave him a bona fide belief in the soundness of the Cowper report. Mr Yerushalmy was to have appeared in the Local Court on April 13, but did not. Police said they had been unable to serve the summons. The matter was stood over to allow further time for service. Mr Yerushalmy is now said to be overseas. Meanwhile, Blake Dawson Waldron, while saying they act for Mr Yerushalmy, have declined to accept service on his behalf. Instead, they have written to the DPP's office to this effect: 'We are instructed to make application in the nature of a no-bill application that the summons be withdrawn. Before we do, we need to know the nature of the charge and the particulars relied upon. Please let us have this information as a matter of urgency.' This stern note has received a suitably dusty answer. Blake Dawson Waldron, representing Mr Yerushalmy and Mr Cowper, are in an odd position. The partners of the firm, or Dawson Waldron as it then was, are also defendants in civil conspiracy proceedings instituted by Dr Rajski in the Supreme Court. In that action, Dr Rajski claims that one of the senior partners, Mr Nicholas Carson, conspired with Mr Yerushalmy and Mr Cowper, as well as other officers of Tectran, to pervert the course of justice and abuse the process of the court by attempting to suborn witnesses and to prevent Dr Rajski receiving legal aid. The difficulties the DPP has had serving summonses on Messrs Yerushalmy and Cowper suggests that the criminal phase of the Rajski case will be every bit as fiercely fought as the long, expensive, and so far inconclusive proceedings in the Equity Division of the Supreme Court."

On this occasion, the appellant did not seek an apology and commenced the second action without delay against both respondents.

6. Pursuant to s.9(2) of the Defamation Act 1974 (N.S.W.) ("the Act"), a person has a cause of action in respect of any or each particular defamatory imputation in the published matter. In the first action, two imputations were pleaded and went to the jury without objection. They were:

"(a) The (appellant) wrongly attempted to intimidate Dr Metcalf by threatening to sue him for defamation in respect of a medical report written by him. (b) The (appellant) wrongly brought defamation proceedings in his own name against Mr Arthur Carney, a solicitor, for the sole purpose of causing Mr Carney to forthwith
cease to act for his client, Mr Rajski."

7. At a separate trial, Hunt J ruled that the second publication was capable of conveying the imputations ultimately pleaded by the appellant. The respondents were refused leave to appeal from that decision. The imputations were:
"(a) The (appellant) was wrongfully party to a conspiracy
with Mr Moshe Yerushalmy to obstruct the course of justice by evading service of criminal process. (b) The (appellant) so conducted himself as to give rise to a reasonable suspicion that he was wrongfully party to a conspiracy with Mr Moshe Yerushalmy to obstruct the course of justice by evading service of criminal
process."

The appellant also provided particulars of matters relied upon in his claim for aggravated damages. While exemplary or punitive damages are unavailable in defamation actions in New South Wales ((1) s.46(3)(a).), aggravated damages may be awarded. For the moment, it suffices to say that aggravated damages, awarded to reflect conduct by the defendant which aggravates the injury and increases the harm done to the appellant, are compensatory in nature ((2) Triggell v. Pheeney (1951) 82 CLR 497, at pp 513-514; Uren v. John Fairfax and Sons Pty. Ltd. (1966) 117 CLR 118, at pp 149-154; Coyne v. Citizen Finance Ltd. (1991) 172 CLR 211, per Mason CJ and Deane J at p 216; Broome v. Cassell and Co. (1972) AC 1027, per Lord Reid at pp 1085-1086.) and available both at common law and under the Act. The appellant relied upon a number of matters including the fact that the articles had been published without any prior attempt to make inquiries of the appellant, evidence that prior to publication Mr Slee knew that the imputations in the first article were false and the absence of any proper apology.

8. The respondents denied the imputations alleged by the appellant. They also pleaded in each case that the matter complained of was published under qualified privilege on the basis that it related to matters of public interest concerning the administration of justice generally and the Rajski litigation in particular. However, this defence was abandoned during the trial. The jury rejected the respondents' defences. After retiring for only 47 minutes and while counsel and the trial judge were still debating possible directions, the jury returned and announced its large verdicts in favour of the appellant.

9. It is necessary to refer to two particular incidents at the trial which relate to the amount of damages awarded. First, during cross-examination of the appellant, counsel for the respondents suggested that the appellant had acted improperly in signing a default judgment in actions brought by Tectran against Dr Rajski and that he had instituted the defamation actions with the motive of silencing Mr Slee. This was one of the grounds relied upon by the appellant in his claim for aggravated damages. Secondly, during his closing address to the jury, counsel for the appellant stated:

"That (i.e. the suggestion of counsel for the respondents) is what is said at the end of the case, perhaps because things are looking a bit desperate by the learned counsel who tried by cross-examination to throw mud in Mr Carson's face by suggesting unfair conduct. It is about time (Fairfax) was brought down to the ground, you may think, when that sort of conduct is engaged in. That is part, that is conduct that should be reflected, in my respectful submission, in your award of compensatory damages."

Court of Appeal 10. The respondents appealed to the Court of Appeal on a number of grounds which included: that in each action the verdict was excessive; that the trial judge erred in permitting the appellant to rely in his claim for aggravated damages on the conduct of counsel for the respondents; that the trial judge had failed to direct the jury concerning the weight to be given to the apology published in respect of the first article; that the trial judge had erred in not directing the jury that the remarks of counsel for the appellant were improper; and that the imputations upheld by Hunt J in the separate trial were not capable of being conveyed.

11. The principal judgment for the majority was delivered by Kirby P His Honour concluded that both verdicts were excessive and "smack(ed) of the punitive" ((3) John Fairfax and Sons Ltd. v. Carson (1991) 24 NSWLR 259, at p 275.). In deciding whether to order a retrial limited to damages or a general retrial, his Honour examined the remaining complaints about the conduct of the trial by the trial judge. He concluded that these complaints were "either misconceived or of such a character as would not, alone, warrant disturbance of the jury's verdicts" ((4) ibid, at p 276.). In particular, while his Honour regarded the comments of the appellant's counsel quoted above as a call to inflict punitive damages and concluded that counsel's words may have contributed to the jury's error in the absence of an adequate direction from the trial judge, he did not think that that error alone justified a retrial.

12. Priestley JA generally agreed with the reasons for judgment of Kirby P but took a slightly different approach to the question of quantum. He concluded that the verdict in the second action for $400,000 was explicable only on the basis that the jury took into account some impermissible matter; he also suggested that this error may have been due to the comment of counsel for the appellant. However, his Honour concluded that, if the verdict in the first action were considered in isolation, it was not "unsupportably unreasonable"; nevertheless, as the lower award was to be considered in light of the conclusion that the higher one was reached in error, his Honour held that the "possibility must be very real that the jury, when fixing the figure for the earlier article, were influenced by the same factor that made (the jury) go wrong in their award on the later one" ((5) ibid, at p 303.). Priestley JA further differed from Kirby P in that he concluded that a general new trial should be held in respect of the imputations allegedly conveyed by the second article and that, as a consequence, the same order should be made in relation to the action arising from the first article. However, his Honour ultimately concurred in the order proposed by Kirby P in order to cut the "Gordian knot" and reach a majority court order.

13. Mahoney J dissented, concluding that the two verdicts were not excessive or beyond what was appropriate to achieve the objectives of damages awards in the area of defamation.

The actions in this Court
14. The appellant now appeals to this Court alleging several defects in the judgments of the majority in the Court of Appeal: (a) the failure to consider the two verdicts separately rather than improperly treating the verdicts as an aggregate amount; (b) the use as a comparison of awards given in personal injury actions in order to determine whether the verdicts were excessive; (c) the emphasis on irrelevant factors in reaching the conclusions that the verdicts were appealably excessive and amounted to awards of punitive damages.

15. The nature of the respondents' applications for special leave to cross-appeal and the notices of contention are set out above. During the course of oral argument, the Court refused special leave to cross-appeal in relation to the imputations pleaded in respect of the second article. However, a decision on the applications for special leave to cross-appeal from the appropriateness of the orders made by the Court of Appeal was reserved.

THE APPELLANT'S APPEALS
16. The appellant challenges the majority decision of the New South Wales Court of Appeal on two primary grounds. They are that the judgment of Kirby P, with which (subject to some exceptions) Priestley JA expressed his general agreement, discloses that their Honours fell into two "basic error(s) of principle", namely: (i) "to test the two verdicts as if they were one aggregate verdict"; and (ii) "to compare the 'verdict' in (the appellant's) cases with a verdict in an unreported personal injury case (The Canterbury Hospital v. Cappelletto ((6) Unreported, New South Wales Court of Appeal, 17 May 1991; (1991) NSWJB 44.))" ((7) The quotations are from the appellant's outline of argument.). The appellant also challenges the decision of the Court of Appeal on the ground that the majority impermissibly relied on certain matters in reaching the conclusion that the verdicts in the appellant's favour were outside the range of proper compensatory damages and on the general ground that their Honours' conclusion in that respect was, in any event, mistaken.

(i) That the majority tested the two verdicts as if they were one aggregate verdict
17. There are passages in Kirby P's judgment which make clear that his Honour placed considerable importance upon the total amount of the two verdicts (i.e., $600,000). In particular, his Honour referred to the fact that the Court of Appeal had been informed that the two verdicts "represented, in aggregate, the highest verdicts awarded as general damages for defamation in the history of this country" ((8) Carson (1991) 24 NSWLR, at p 262.) and expressed the conclusion that this "was not the case for the largest verdict for general damages in defamation in the history of this State and of this country" ((9) ibid, at p 274.). Moreover, in a passage in his judgment, Kirby P aggregated the two verdicts in stating that, "in so far as one may" make the comparison, it "seem(ed) difficult to say that the damage to (the appellant) was greater than ..., in aggregate, and by a magnitude of 2.4" the damage sustained by a Mrs Cappelletto who had had a jury verdict of $250,000 for general damages for "effective total blindness" set aside by the New South Wales Court of Appeal on the ground that it was excessive ((10) ibid.).

18. Clearly enough, if Kirby P had overlooked the fact that the two verdicts in the appellant's favour were given in different actions and were in respect of different defamatory publications, his Honour would have truly fallen into "basic error". Obviously, however, his Honour was not guilty of any such oversight. His error, if error it be, was that, in deciding whether either or both of the verdicts should be set aside as excessive, he considered it was relevant to inquire whether the total of the two verdicts exceeded the maximum amount of damages which was capable of reasonably being seen as representing appropriate compensation for the aggregate harm inflicted upon the appellant by both defamatory publications. It can be said at once that, in the circumstances of this case, we see no error in his Honour's approach.

19. While the two publications were different and conveyed different defamatory imputations, there was a clear and close relationship between them. Both were written by the same person (a respondent in the second action, Mr Slee) and published in the same section of different issues of the same newspaper. Each of them was defamatory of the appellant in respect of conduct relating to the same series of litigation. The effect of the defamatory publications was cumulative. The second compounded the harm to the appellant caused by the first: it renewed and expanded the hurt to his feelings; it exacerbated the damage to the reputation which he had hitherto enjoyed in legal, commercial and other circles.

20. Where a jury can award exemplary or punitive damages for defamation, the particular circumstances may be such as to make it unhelpful, and even potentially misleading, to reason from a finding that the total amount of the verdicts in two actions for related defamatory publications which were heard together was excessive as an aggregate award of damages to a conclusion that either or both of the two verdicts is appealably excessive. In the present case, however, it was not open to the jury to award any amount at all by way of exemplary or punitive damages. Under the Act ((11) s.46(2).), damages for defamation are limited to damages for "relevant harm" which, in a case where the person defamed has not died, is defined ((12) s.46(1).) as meaning "harm suffered by the person defamed". As if to stress that damages for defamation are confined to what can be justified as compensatory for harm actually suffered, the Act goes on to provide ((13) s.46(3).) that damages for defamation:

"(a) shall not include exemplary damages; and

(b) shall not be affected by the malice or other state of mind of the publisher ... except so far as that malice or other state of mind affects the relevant harm".

21. In the context of those legislative provisions, it is permissible and sensible in a case where claims for closely related defamatory publications have been heard together for a jury, in determining what is the appropriate compensation to be awarded to the plaintiff in respect of each publication, to take account of the aggregate "harm" suffered by the plaintiff by reason of both of them. Similarly, it is permissible and sensible for an appellate court in such a case to address the question whether the total of the two verdicts so exceeds the amount appropriate to compensate the plaintiff for the total harm suffered by reason of the combined effect of the two publications that it is apparent that one or both of the jury's verdicts must demonstrably be perverse. Indeed, there could be circumstances in which common sense and the need to avoid double compensation would make it all but essential that a jury or an appellate court address some such question.

22. An extreme example should suffice to make the point. Let it be assumed that a weekly newspaper were to publish in each of its issues for a year closely related defamatory comments to the effect that a particular lawyer had been guilty of different acts of criminal and unethical conduct in relation to a particular piece of litigation in which the lawyer was professionally involved. If the lawyer instituted separate legal proceedings for defamation in relation to each of the 52 issues of the newspaper and the 52 actions were heard together, it would border on the absurd and be all but impossible to prevent multiple compensation if the jury were instructed that they could not address the question of what represented, in their view, appropriate damages for the total "harm" which had been caused to the plaintiff by all 52 defamatory publications. Similarly, if the jury awarded the plaintiff $100,000 for each publication, it would make a mockery of the administration of justice if, in a context where the legislature had expressly restricted damages for defamation to compensation for harm suffered, an appellate court were required to disregard the fact that the total of the 52 verdicts ($5.2 million) far exceeded the maximum amount which was reasonably capable of being seen as appropriate compensation for the total harm which the plaintiff had sustained. The fact that the total of the verdicts is obviously excessive in that sense does not mean, of course, that all the verdicts should be set aside. It would be necessary to consider each verdict to ascertain whether, in the context of the case as a whole, it is excessive.

23. Accordingly, we do not consider that Kirby P fell into error on this aspect of the case and we note that his Honour's approach accords with that adopted by Windeyer J in Australian Consolidated Press Ltd. v. Uren when he concluded that ((14) (1966) 117 CLR 185, at p 215.):

"(t)he verdicts taken together show that the jury were led into a mistaken approach to the case as a whole".

(ii) The relevance of awards in personal injury actions 24. The appellant submits that Kirby P made an impermissible comparison between verdicts in personal injury cases and the verdicts awarded to the appellant and that such comparison influenced his Honour in concluding that the verdicts for the appellant were appealably excessive. The appellant argues that such comparison is impermissible according to the view of the majority of this Court in Coyne v. Citizen Finance Ltd. ((15) (1991) 172 CLR 211.).

25. It is worthwhile repeating in full the critical passage, to which we referred earlier in another context, from the judgment of Kirby P ((16) (1991) 24 NSWLR, at p 274.):

"It is also perhaps worth recalling that, more recently, this Court held that (by the standards of jury verdicts of this State) a jury verdict of $250,000 for general damages for effective total blindness caused by negligent hospital care, was outside 'current general ideas of fairness and moderation': see Canterbury Hospital v. Cappelletto ... In that case Mahoney JA and I both considered $250,000 was appealably excessive. 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, in aggregate, and by a magnitude of 2.4".

The significance of this statement, however, can only be ascertained by reading it in context. His Honour previously set out in some detail the authorities on each side of the "controversy" as to the permissibility in defamation cases of examining the general damages components of judgments awarded to persons suffering personal injury. In particular, his Honour referred to the "words of warning" offered by Toohey J in Coyne ((17) (1991) 172 CLR, at pp 234-235.) to which we shall refer in detail below. His Honour then concluded that "it is safer not to venture any precise comparisons with personal injury cases" ((18) (1991) 24 NSWLR, at p 273.). The appellant argues that the President nevertheless made such a comparison.

26. We reject this argument. The reference to Cappelletto is given as an example of a superior court in this country reducing an excessive verdict. The subsequent "comparison" between Cappelletto and the appellant's verdicts should not be accorded any significance when viewed in the context of his Honour's broader discussion of this area of the law and especially when it commences with the words "(i)n so far as one may compare that verdict to this".

27. In any event, we do not accept the appellant's argument that Coyne prohibits an appellate court, deliberating on the quantum of a defamation verdict, from considering verdicts in personal injury cases for the purpose of comparison. It is true that, in that case, Dawson and McHugh JJ expressed agreement with the judgment of Toohey J in the course of which his Honour stated that the adequacy of awards in one type of case should not be tested by reference to awards in the other ((19) (1991) 172 CLR, at p 235.). Coyne, however, is not a binding decision in the circumstances of this case. Coyne dealt with the question whether or not the jury were wrongly directed as to whether they could take into account awards in other types of cases when deciding upon a verdict. Here the alleged error is the comparison said to be made by an appellate court between verdicts in different types of cases.

28. In Coyne, Mason CJ and Deane J considered that it is legitimate for an appellate court considering an appeal against the quantum of damages in a defamation case to bear in mind "the scale of values" applied in dealing with appeals in cases of serious physical injury ((20) ibid, at pp 219-221.). There is no occasion here to repeat the reasoning advanced in support of that conclusion. That conclusion does not deny that the harm suffered in defamation cases differs from the "tearing of flesh and bone and the pain of body" ((21) Carson (1991) 24 NSWLR, per Kirby P at p 273.) suffered in personal injury cases nor that "precise comparisons" ((22) ibid. (emphasis added).) should not be drawn between the different types of cases. But for an appellate court which must test the quantum of a defamation award against some criteria to be prohibited from considering awards of general damages in personal injury cases would exclude reference to a potentially relevant criterion. In Andrews v. John Fairfax and Sons Ltd. Hutley JA stated ((23) (1980) 2 NSWLR 225, at p 245.):

"Lord Hailsham has pointed out in Cassell and Co Ltd v Broome ((24) (1972) AC, at p 1071.): '... it is not necessarily fair to compare awards of damages in this field with damages for personal injuries.'; but this does not justify disregarding all the comparisons. Diplock LJ said in McCarey v Associated Newspapers Ltd (No 2) ((25) (1965) 2 QB 86, at p 109.): 'I do not believe that the law today is more jealous of a man's reputation than of his life and limb.'; and went on to compare the damages approved in recent accident cases in the Court of Appeal, concluding with the following remarks ((26) ibid, at pp 109-110.): 'It is, I think, legitimate as an aid to considering whether the award of damages by a jury is so large that no reasonable jury could have arrived at that figure if they had applied proper principles to bear in mind the kind of figures which are proper, and have been held to be proper, in cases of disabling physical injury.'"

That statement accords with the observation made by Mason CJ and Deane J in Coyne ((27) (1991) 172 CLR, at p 221.):

"(I)t seems to us that it would be quite wrong for an appellate court, entrusted with hearing appeals in both defamation and personal injury cases, to be indifferent to the need to ensure that there was a rational relationship between the scale of values applied in the two classes of case".

And the foundation of that relationship must be the scale of awards for general damages in cases of serious physical injuries which, in their severity and disabling consequences, transcend injury to reputation ((28) We note, in this respect, the judgment of the English Court of Appeal (delivered by Neill LJ) in Rantzen v. Mirror Group Newspapers (1993) 143 NLJ 507 in which the Court acknowledged (at p 508) "the force of the criticism of the present practice whereby a plaintiff in an action for libel may recover a much larger sum by way of damages for an injury to his reputation, which may prove transient in its effect, than the damages awarded for pain and suffering to the victim of an industrial accident who has lost an eye or the use of one or more of his limbs". However, the Court rejected the proposal that account should be taken of personal injury awards in assessing damages for defamation, apparently because such damages are awarded in part as a vindication of the plaintiff to the public. We do not regard that aspect of damages for defamation, which in New South Wales are necessarily compensatory, as precluding the need to maintain an appropriate relationship between the scale of values in the two classes of case.).

29. Such an approach, of course, raises the issue whether trial judges, in summing up to the jury, may draw such comparisons and, further, whether counsel may refer to such comparisons in their addresses. As a matter of logic and principle, there is nothing perverse in permitting - even encouraging - appellate courts to draw comparisons with personal injury verdicts while prohibiting such an approach at the trial stage. Appellate courts would have regard to personal injury awards to assist in resolving the question whether "the amount awarded is so high or so low that it is outside the range of what could reasonably be regarded as appropriate to the circumstances of the case" ((29) Coyne (1991) 172 CLR, at p 215.). Juries are charged with the more exacting task of deciding upon a precise figure, and thus will derive less assistance in accomplishing their duty from the rough comparison provided by personal injury awards. Having said this, we see no significant danger in permitting trial judges to provide to the jury an indication of the ordinary level of the general damages component of personal injury awards for comparative purposes, nor in counsel being permitted to make a similar reference. Although there is authority in this Court to the effect that the quantum of damages is not to be resolved by reference to a norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases ((30) Planet Fisheries Pty. Ltd. v. La Rosa (1968) 119 CLR 118, at pp 124-125.), there is much to be said for trial judges offering some guidance on damages - such as inviting the jury to consider the investment or buying power of the amount it might award ((31) Coyne (1991) 172 CLR, at p 235; Carson (1991) 24 NSWLR, at p 301.) or perhaps even indicating a range of damages which might be considered appropriate - while ensuring that the jury knows that they are to reach their own decision ((32) Coyne (1991) 172 CLR, at p 235.). Providing basic information on the general damages component of personal injury awards might even be more helpful than these other examples.

30. There is a distinct possibility that jurors in defamation cases, drawing on their own values and experiences, would call to mind the information provided to them in the media concerning very large personal injury awards. Such large claims often gain prominent media attention. Jurors who might call to mind such instances, however, will almost certainly be unable to recall - if indeed they ever knew - what portion of those very large verdicts represented general damages. Unassisted by the provision of information of the kind which we have suggested, the jurors may well make their own comparisons in a manner which is totally inaccurate and misleading. A defamation verdict for $250,000 may, in the mind of such jurors, bear a rational relationship to an award of $2.5 million dollars to a person suffering quadriplegia as a result of an accident, even though, unbeknown to the jurors, that person was awarded only $150,000 in general damages.

31. The appellant has not succeeded in proving that there was any error in the judgment of the majority of the Court of Appeal on this issue. This ground of appeal must therefore be rejected.

Were the verdicts appealably excessive?
32. As the appellant made no claim for particular economic loss as a result of either publication, the Court of Appeal ((33) (1991) 24 NSWLR, at p 298.) was right in concluding that the jury's verdicts could not be supported by reference to specific economic loss. Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that "the amount of a verdict is the product of a mixture of inextricable considerations" ((34) Uren v. John Fairfax and Sons Pty. Ltd. (1966) 117 CLR, per Windeyer J at p 150.). The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation ((35) Carson (1991) 24 NSWLR, at pp 296-299.). The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant ((36) Uren v. John Fairfax and Sons Pty. Ltd. (1966) 117 CLR, at p 150; Coyne (1991) 172 CLR, at p 216; John Fairfax and Sons v. Kelly (1987) 8 NSWLR 131, at p 142; McCarey v. Associated Newspapers Ltd. (No.2) (1965) 2 QB, at p 107.). Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation. "The gravity of the libel, the social standing of the parties and the availability of alternative remedies" are all relevant to assessing the quantum of damages necessary to vindicate the appellant ((37) Fleming, The Law of Torts, 8th ed. (1992), p 595.).

33. In the Court of Appeal, the respondents argued in respect of both verdicts that the damages awarded to the appellant were excessive and should be set aside. Considering the case in the light most favourable to the appellant, as the law requires ((38) Progress and Properties Ltd. v. Craft (1976) 135 CLR 651, at p 672; Coyne (1991) 172 CLR, at p 227.), a majority of the Court accepted this argument. The appellant now contends that the majority erred in concluding that the verdicts were appealably excessive.

34. It has been stated that an appellate court should be extremely reluctant to interfere with a jury's assessment of defamation damages for the reason that the quantum of damages is a matter which is entrusted to the jury for determination ((39) Kornhauser v. Fairfax and Sons Pty. Ltd. (1965) NSWR. 199, at pp 209-210; Broome v. Cassell and Co. (1972) AC, at p 1065.). As Mason CJ and Deane J explained in Coyne ((40) (1991) 172 CLR, at pp 215, 221.), this argument loses much of its strength in Australia where, in all Supreme Courts other than that of New South Wales, a judge assesses damages for defamation in the absence of some contrary order or election. To say this is not to deny that an appellate court should accord respect to the quantum of damages for defamation awarded by a jury.

35. The governing principle applying to an appeal against a jury verdict on the ground that it is excessive was expressed in Triggell v. Pheeney by Dixon, Williams, Webb and Kitto JJ in these terms ((41) (1951) 82 CLR, at p 516.):

"The rule when a court of appeal is asked to set aside a verdict of a jury on the ground that the damages awarded are excessive is the same in libel actions as in any other cases, viz., that the verdict should not be disturbed unless the amount is such that no reasonable body of men could have awarded it: per McArthur J, Falcke v. Herald and Weekly Times Ltd. ((42) (1925) VLR 56, at p 75.)."

If an appellate court is convinced, not that in its own view the amount is too high or too low but that the amount awarded is so high or so low that it is outside the range of what could reasonably be regarded as appropriate to the circumstances of the case, the proper performance of its functions will require it to intervene to prevent a miscarriage of justice ((43) Coyne (1991) 172 CLR, at p 215.). And the absence of power in New South Wales on the part of the judge or jury awarding damages for defamation to include an amount of exemplary or punitive damages ((44) s.46(3)(a).) removes what was perhaps the greatest obstacle in the path of an appellate court faced with the onerous task of reviewing an award of damages for defamation.

36. In this case the appellant submits that Kirby P took into account several irrelevant considerations in reaching his conclusion that the two verdicts were excessive. The central paragraph in this section of his Honour's judgment states ((45) (1991) 24 NSWLR, at pp 274-275.):

"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, despite the multitude of defamations, including many of persons holding even more public offices than Mr Carson does and better known than he. 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. Most important of all is the fact that no punitive damages may be awarded. These verdicts must therefore be judged as compensatory only. In my opinion their amounts smack of the punitive; and that is not permissible by the law of this State."

37. We do not think that the matters here referred to by his Honour should be characterized as "irrelevant considerations". The matters referred to are plainly relevant, especially the reference to the appellant's willingness to refrain from suing and the fact that the damages were limited to compensatory damages. Exception can be taken to the assumption inherent in the second sentence but perhaps the sentence does little more than record his Honour's sense of astonishment at the size of the verdict.

38. In any event, the paragraph must be read in the context of the entire judgment which discloses that his Honour gave comprehensive and careful consideration to all those factors which must inhibit an appellate court from substituting its opinion for that of the jury and to all the considerations which would entitle the jury, in these cases, to award substantial verdicts. When read in context, it is evident that the paragraph does not state all the factors which led his Honour to the conclusion that the verdicts should be set aside. He relied upon other factors in concluding that the verdicts were appealably excessive. For instance, he noted that no proof of special damages was led and that accordingly no amount of the verdict was referable to such loss. He pointed to the substantial income which the two verdicts would yield if invested and noted that the income would last for life. And his reference to Cappelletto and that a combined verdict of $600,000 was the largest defamation verdict recorded in Australia were relevant factors leading to his Honour's conclusion that there must be an element of the punitive in the verdict. In that respect, his Honour's judgment may be compared with that of Windeyer J in Australian Consolidated Press Ltd. v. Uren ((46) (1966) 117 CLR, at pp 213-215.).

39. Indeed, the reasons given by the Court of Appeal for setting aside the verdicts have been reinforced by our consideration of the detailed materials, to which we were referred by the respondents, relating to the general levels of personal injury awards. Our consideration of these materials reveals that the awards made to the appellant approximate (in the case of the first verdict) and exceed (in the case of the second) the general damages component of recent verdicts given in New South Wales in cases of quadriplegia. Two examples will suffice. In Guidera v. Government Insurance Office of New South Wales) ((47) Unreported, New South Wales Court of Appeal, 11 July 1990.), an award of $275,000 for general damages was made to a 28 year old man whose excellence at gymnastics and plans to become a sports instructor were destroyed by an accident which left him with complete quadriplegia, poor respiratory function and a life expectancy reduced by 12.5 per cent. In Lynch v. Lynch ((48) Unreported, New South Wales Supreme Court, 1 August 1991.), a woman aged 18 at trial was awarded $250,000 in general damages after suffering multiple injuries - primarily spastic quadriplegic cerebral palsy - which left her with no independent mobility, no prospect of improvement, a need for numerous surgical procedures and a significantly reduced life expectancy. Other similar cases could be mentioned ((49) See Saroukas v. Sutherland Shire Council, unreported, Supreme Court of New South Wales, 15 December 1989 and Rosniak v. Government Insurance Office, unreported, Supreme Court of New South Wales, 14 December 1990 - referred to in Britts, Comparable Verdicts in Personal Injury Claims, pp 185-186, 187-188.).

40. Comparisons such as these are not made to trivialize the hurt and harm suffered by the appellant in this case. We refer to and adopt the description given by Mahoney JA in the Court of Appeal of the factors which called for large verdicts - particularly in the second action where the grounds for aggravated damages were stronger. But an appellate judge must not be indifferent to the need to ensure a rational relationship between the scale of values applied in defamation and personal injury cases. This rational relationship demands that the verdicts in this case be set aside.

(iii) The appellant's criticism of the reasons of Priestley JA
41. The conclusion which we have reached makes it unnecessary to examine the appellant's arguments directed against the additional reasons advanced by Priestley JA for setting aside the verdicts.

NOTICES OF CONTENTION AND APPLICATIONS FOR SPECIAL LEAVE TO APPEAL
42. Again, in view of the conclusion which we have reached in relation to the disposition of the appeal, it is unnecessary to deal with the respondents' contention that the Court of Appeal erred in failing to have regard to the general levels of awards in personal injury cases in considering whether the verdicts were excessive.

43. We need not examine the other ground relied upon in the notices of contention. But we should express our view of the respondents' contentions with respect to the inadequacy of the trial judge's directions relating to certain matters said by the appellant to support an award of damages on the basis of aggravated damages. The first of these matters is that the jury were invited to take into account, in the context of aggravated damages, the fact that no apology was given by Fairfax in respect of the first publication at any time before action commenced, that is, within a period of seven months. The respondents' complaint is not that the lack of apology could not constitute an aggravation of damages but that his Honour should have instructed the jury that the nature of the apology had been the subject of discussion between the parties and that the appellant had sought an apology in wider terms than those to which he was entitled. The complaint amounts to no more than a claim that the judge failed to fully review the facts. We need say no more about this complaint in view of the conclusion we have reached with respect to the appeal.

44. The second matter is that the trial judge ruled that it was legitimate to put to the jury, in aggravation of damages, that the respondents' counsel cross-examined the appellant on the footing that he had an improper motive in bringing the proceedings for defamation. Again, the respondents' complaint is not that the cross-examination was not capable of aggravating the damages but that the directions were inadequate. In this instance the respondents argue that the judge failed to give the jury any guidance as to whether the conduct of the respondents' counsel was or was not capable of being in aggravation of damages. To reiterate the words of McHugh JA in Singleton v. Ffrench ((50) (1986) 5 NSWLR 425, at p 440, quoting Steele v. Mirror Newspapers Ltd. (1974) 2 NSWLR 348, per Samuels JA at p 380.):

"(A) jury cannot effectively undertake the task of determining whether the defendant has conducted the trial so as to attract an award of aggravated damages 'without proper guidance as to the criteria' to be applied".

The trial judge did direct the jury in terms which generally, if not precisely, accorded with the judgment of Dixon, Williams, Webb and Kitto JJ in Triggell v. Pheeney where their Honours, after observing that ((51) (1951) 82 CLR, at p 514.):

"(a) bona-fide defence raised properly or justifiably in the circumstances known to the defendant and evidence honestly given in support of such a defence doubtless cannot be used"

to support an award of aggravated damages, went on to say ((52) ibid):

"(b)ut the decision of the majority in Herald and Weekly Times Ltd. v. McGregor ((53) (1928) 41 CLR 254.) must mean that the conduct of the defence may be taken into consideration ... as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable."

It would have been preferable if the trial judge had followed the words of the judgment more precisely and related them to the facts of the instant case.

45. At the same time, the directions given on the subject of aggravated damages raise a more fundamental problem which was not explored in depth in the argument in this case. Although exemplary damages are unavailable in New South Wales, aggravated damages are available to the extent that they are compensatory in nature. That situation is brought about by s.46 of the Act which, by sub-s.(2), limits damages recoverable in defamation to damages for "relevant harm" (an expression which is defined by sub-s.(1)), by sub-s.(3)(a), excludes exemplary damages and, by sub-s.(3)(b), provides that damages shall not 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. As Windeyer J acknowledged in Uren v. John Fairfax and Sons Pty. Ltd. ((54) (1966) 117 CLR, at pp 151-152.), there is an element of the punitive in aggravated damages at common law. Under s.46, by reason of the exclusion of exemplary damages, it is necessary to confine an award of aggravated damages to what is truly compensatory. In determining what is truly compensatory in that context, regard should be had to what was said in the joint judgment in Triggell v. Pheeney ((55) (1951) 82 CLR, at pp 513-514.). But, even then, we have difficulty in understanding how the mere absence of an apology can aggravate damages. Whereas publication of an apology may mitigate damage, thereby reducing the harm suffered by a plaintiff in a defamation case, and so reduce the damages awarded, the failure to publish an apology does not increase the plaintiff's hurt or widen the area of publication. No doubt want of apology may be a relevant factor in establishing that a defendant is motivated by a desire to injure the plaintiff but that does not mean that want of apology itself aggravates the plaintiff's injury. Furthermore, it is of the utmost importance that juries should be instructed that any award of aggravated damages must be confined to what is truly compensation for the relevant harm and must not include any element of punitive damages. Otherwise an invitation to award aggravated damages by reference to the defendant's conduct before and at the trial may be understood as an invitation to award punitive damages.

46. In our view, the directions given by the trial judge were susceptible to criticism on this score. Indeed, the jury may have been confused by his Honour's successive references to punitive damages and aggravated damages without further elucidation of the compensatory aspects of aggravated damages.

47. What we have said with respect to the compensatory character of aggravated damages has like application to that element of damages for defamation which is awarded in order to vindicate the plaintiff's reputation. It is the responsibility of the trial judge to give a clear and firm instruction to the jury that, in considering the plaintiff's claim for damages to vindicate his or her reputation, the damages must not exceed the amount appropriate to compensate the plaintiff for any relevant harm he or she has suffered. Furthermore, the trial judge should instruct the jury that, in the event that it is minded to award the plaintiff a substantial sum by way of damages for the plaintiff's injury apart from the claim for vindication of reputation, it will be unnecessary to add a further sum for vindication of reputation. The award of that substantial sum will in itself serve to vindicate the plaintiff's reputation. These comments are made by way of guidance to trial judges generally and are not directed to any question which arises in this appeal, for no question concerning vindication of reputation was argued in this Court.

48. Finally, it is necessary to consider the respondents' applications for special leave to cross-appeal on the question of the orders made by the Court of Appeal. The respondents seek a new trial generally. We would refuse the applications on the ground that they raise no question of general principle. No doubt there are cases where a trial has proceeded in such a way that a retrial on the question of damages would not address other errors or irregularities. This would not appear to be such a case. In the circumstances, there is no sufficient reason to doubt the correctness of the approach taken by the Court of Appeal on this issue.

49. For the foregoing reasons, we would dismiss the appeals.

BRENNAN J The judgment of the majority sets out the articles written and published by the respective respondents (the defendants in the actions) and the course of the appellant's (plaintiff's) actions for damages for defamation leading to these appeals. The issues for determination on the appeals are whether the sum of $200,000 damages awarded by verdict of the jury in respect of the first article and the sum of $400,000 awarded in respect of the second article were manifestly excessive or whether there was any error in the trial which warrants the setting aside of either verdict. It is convenient to consider the general questions of law relevant to these appeals before considering particular issues in the case and the ultimate question whether the two awards should have been set aside by the New South Wales Court of Appeal ((56) John Fairfax and Sons Ltd. v. Carson (1991) 24 NSWLR 259.) (Kirby P and Priestley JA, Mahoney JA dissenting).

The function of an appellate court
2. In Coyne v. Citizen Finance Ltd. ((57) (1991) 172 CLR 211, at pp 227-228.) Toohey J collected statements of authority relating to the review of a jury verdict awarding damages for defamation. With the concurrence of Dawson and McHugh JJ ((58) ibid, at pp 222, 239-240.), his Honour placed "great emphasis on the special role of the jury and on the difficulties facing a challenge to its verdict". He pointed out that an appellate court will not regard a jury's assessment of damages as invulnerable, though the court will be slow to disturb it. Of course, as Mason CJ and Deane J pointed out in that case ((59) ibid, at p 215.), appellate courts are vested with and must exercise the jurisdiction to control jury verdicts in defamation actions ((60) see, in relation to New South Wales, the Supreme Court Act 1970 (N.S.W.), ss.101, 102.) and must intervene when the court is convinced that an award is unreasonable. The test of unreasonableness, as Triggell v. Pheeney ((61) (1951) 82 CLR 497, at p 516.) decides, is that no reasonable jury properly directed could have made the impugned award. Consistently with this approach, Toohey J said in Coyne ((62) (1991) 172 CLR, at pp 238-239.):

"The real point is, as Lord Hailsham pointed out, that 'the law makes the jury and not the judiciary the constitutional tribunal': Broome v. Cassell and Co. ((63) (1972) AC1027, at p 1065.). 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. It may be apparent from an award of damages that the jury has failed to take into account some aspect of the case, whether favourable or unfavourable to the plaintiff, about which there was really no dispute, or that the award is clearly punitive when punitive damages are not available. Such a conclusion is one that an appellate court should not reach too readily."

3. One reason why an appellate court should not reach such a conclusion too readily is that much depends on the importance attached to the intangible factors that a jury is required to consider in assessing damages for defamation. It is for the jury, not for the appellate court, to evaluate the importance of those factors, since s.88 of the Supreme Court Act 1970 (N.S.W.) provides that the issues of fact in an action for defamation shall be tried by a jury ((64) subject to some exceptions in s.89(2) which are immaterial to this case.). In Broome v. Cassell and Co. ((65) (1972) AC, at p 1066.), Lord Hailsham of St. Marylebone LC said: "It may very well be that, on the whole, judges, and the
legal profession in general, would be less generous than juries in the award of damages for defamation. But I know of no principle of reason which would entitle judges, whether of appeal or at first instance, to consider that their own sense of the proprieties is more reasonable than that of a jury, or which would entitle them to arrogate to themselves a constitutional status in this matter which Parliament has deliberately withheld from them, for aught we know, on the very ground that juries can be expected to be more generous on such matters than judges."

The elements of damages for defamation
4. It was not open to the jury to award punitive damages in this case. Section 46 of the Defamation Act 1974 (N.S.W.) limits awards to damages for "relevant harm" which, for present purposes, is defined by sub-s.(1) of that section to mean harm suffered by the plaintiff recognized by the common law. Economic loss, if it can be proved, can be taken into account as a proper subject of compensation but it is frequently difficult to prove a link between the defamation and the absence of an economic benefit which the plaintiff otherwise expected to receive. Apart from compensation for economic loss flowing from the unlawful publication of defamatory matter, a plaintiff is entitled to damages because he or she has been injured in reputation. The statement by Windeyer J in Uren v. John Fairfax and Sons Pty. Ltd. ((66) (1966) 117 CLR 118, at p 150.) is the starting point:

"It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates 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. The variety of the matters which, it has been held, may be considered in assessing damages for defamation must in many cases mean that the amount of a verdict is the product of a mixture of inextricable considerations."

5. The chief purpose of the law in creating a cause of action for defamation is to provide vindication to counter the injury done to the plaintiff in his or her reputation. Lord Radcliffe said in Dingle v. Associated Newspapers Ltd. ((67) (1964) AC 371, at p 396.): "A libel action is fundamentally an action to vindicate a

man's reputation on some point as to which he has been falsely defamed, and the damages awarded have to be regarded as the demonstrative mark of that vindication." The sufficiency of the amount awarded is not to be determined by reference solely to circumstances past and present; the amount must be sufficient to vindicate the plaintiff's reputation in the relevant respect in the future. Thus Lord Hailsham in Broome v. Cassell and Co. ((68) (1972) AC, at p 1071.) said:

"Not merely can (the plaintiff) 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."

In considering the appropriateness of a sum to be awarded in vindication of a plaintiff's reputation injured by the publication of defamatory matter in a newspaper, it is necessary to have in mind what Mahoney JA said in the present case ((69) (1991) 24 NSWLR, at p 300.):

"(T)he plaintiff has no other way of achieving vindication than by an award of damages. There is no power to force a defendant, by public advertisement or letter or otherwise, to provide a vindication of the plaintiff. In the case of defamation by a journalist or a newspaper, the common organs for vindication are within their control. Damages, and the size of the award, are the only means which ordinarily are available to attract the public or private attention involved in the vindication of the plaintiff's position."

6. Although damages are awarded to vindicate the plaintiff's reputation, damages are not awarded as compensation for the loss in value of a plaintiff's reputation as though that reputation were itself a tangible asset or a physical attribute which, once damaged, is worth less than it was before ((70) Dingle v. Associated Newspapers Ltd.). In order to achieve the purpose of vindicating reputation, damages for defamation are quantified by reference, inter alia, to what is needed to achieve that purpose: those damages are not quantified by reference to a depreciation in the value of a plaintiff's reputation. Other heads of damage are compensation for the external consequences produced by the publication of the defamation and "a solatium" for the plaintiff's internal hurt, that is, for the complex of reactions that the plaintiff has experienced as the result of the publication and its external consequences. In McCarey v. Associated Newspapers Ltd. (No.2) ((71) (1965) 2 QB 86, at p 107.) Diplock LJ said: "The injuries that (a plaintiff) sustains may be classified
under two heads: (1) the consequences of the attitude adopted towards him by other persons as a result of the diminution of the esteem in which they hold him because of the defamatory statement; and (2) the grief or annoyance caused by the defamatory statement to the plaintiff himself. It is damages under this second head which may be aggravated by the manner in which or the motives with which the statement was made or persisted in." The consequences of publication include not only the insult publicly inflicted on the plaintiff but also the effect of the defamation on those to whom it is published ((72) The Herald and Weekly Times Ltd. v. McGregor (1928) 41 CLR 254, at p 263.), any diminution in the regard in which the plaintiff is held by others, any isolation produced (causing the plaintiff to be "shunned or avoided" is the traditional formula) and any conduct adverse to the plaintiff engaged in by others because of the publication of the defamatory matter. Damages are awarded also for the plaintiff's injured feelings ((73) Dingle v. Associated Newspapers Ltd. (1964) AC, at p 398.), including the hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of outrage felt by the plaintiff. Indeed, all those objective consequences and those subjective reactions which flow naturally from the publication of the defamatory matter are relevant factors. Of course, the subjective reactions are often produced by the objective consequences of the publication. The two categories are not cumulative heads of damage but descriptions of kinds of intangible factors which must be taken into account in assessing damages.

7. Damages may be aggravated or mitigated by the manner in which the defamatory matter was published and by the subsequent conduct of the defendant ((74) Triggell v. Pheeney (1951) 82 CLR, at p 514.). Conduct of the defendant from the time of publication until verdict (including conduct at the trial, to which reference will presently be made) is relevant ((75) Praed v. Graham (1889) 24 QBD 53, at p 55.). In Broome v. Cassell and Co. Lord Reid, speaking of the bracket within which any sum could be regarded as not unreasonable compensation, said ((76) (1972) AC, at p 1085.):
"It has long been recognised that in determining what
sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation."

8. Evidence of the defendant's conduct is admissible also in proof of malice. But s.46(3)(b) of the Defamation Act provides that, in New South Wales, damages -
"shall not be affected by the malice or other state of mind
of the publisher at the time of the publication complained of or at any other time, except so far as that malice or other state of mind affects the relevant harm." Evidence of the defendant's conduct is therefore relevant and admissible on the issue of compensatory damages, whether or not it tends to prove malice, but only so far as that conduct exacerbates or ameliorates the consequences of the original publication or the plaintiff's injured feelings ((77) The distinction between compensatory and punitive damages is not always easy to draw nor has it always been drawn: see per Lord Hailsham in Broome v. Cassell and Co. (1972) AC, at pp 1071-1072.).

9. Damages by way of vindication of reputation are not added to the damages assessed under other heads ((78) per Lord Hailsham, ibid, at p 1074; per Lord Donaldson of Lymington M.R. in Sutcliffe v. Pressdram Ltd. (1991) 1 QB 153, at pp 171-172.). Although an award of damages operates "as a vindication of the plaintiff to the public and as consolation to him for a wrong done", as Windeyer J said ((79) in Uren v. John Fairfax and Sons Pty. Ltd., supra, fn.(66).), the dual operation of an award does not require cumulative components of damages. The same sum can operate as vindication, compensation and solatium, for "the amount of a verdict is the product of a mixture of inextricable considerations" ((80) ibid.). The amount assessed under other heads may itself be sufficient in aggregate to provide the vindication required. The extent of the overlap depends on the circumstances. But the award in total must be sufficient to satisfy the purposes for which damages for defamation are awarded: vindication of reputation, compensation for injury to reputation and solatium for injured feelings.

The derivation of a "scale of values"
10. The factors which are to be evaluated in assessing damages for defamation make it difficult to demonstrate to an appellate court that a jury award is manifestly excessive. Yet the appellate jurisdiction to review an award must be exercised in an appropriate case. The duty to set aside a verdict which is manifestly excessive postulates a capacity in the appellate court to determine the limits of the range of reasonable assessment. Some standard must be applied, albeit the standard is neither articulated nor susceptible of articulation. A standard can be and is derived from general experience of jury awards in defamation cases and from an appreciation of contemporary community values. Obviously, a standard derived from such diffuse sources will be imprecise: so imprecise that it can be quantified only by expression of judicial impression.

11. A check or cross-reference has been found by some judges in the level of awards in personal injuries cases ((81) see, for example, Australian Consolidated Press Ltd. v. Uren (1966) 117 CLR 185, at p 213.). Thus, in Coyne Mason CJ and Deane J thought that "it would be quite wrong for an appellate court, entrusted with hearing appeals in both defamation and personal injury cases, to be indifferent to the need to ensure that there was a rational relationship between the scale of values applied in the two classes of case" ((82) (1991) 172 CLR, at p 221.). A similar view had been expressed by Diplock LJ in McCarey v. Associated Newspapers Ltd. (No.2) ((83) (1965) 2 QB, at p 109.):
"I am convinced that it is not just (and I do not think
that it is the law ...) that in equating incommensurables when a man's reputation has been injured the scale of values to be applied bears no relation whatever to the scale of values to be applied when equating those other incommensurables, money and physical injuries. I do not believe that the law today is more jealous of a man's reputation than of his life or limb. That is the scale of values of the duel. Of course, the injuries in the two kinds of case are very different, but each has as its main consequences pain or grief, annoyance or unhappiness, to the plaintiff." However, in Coyne Toohey J rejected the proposition that the adequacy of awards in one type of case might be tested by reference to awards in the other ((84) (1991) 172 CLR, at p 235.). I respectfully agree. An attempt to compare awards made in respect of such disparate heads of damage is more likely to confuse than to correct. The issue is not whether the law is more jealous of reputation than of life and limb. As we have seen, damages for defamation are not given for damage to reputation in the way that damages are given for damage to life and limb. If there were any true comparison between the two classes of case, it would be necessary to evaluate the overall depreciation in value of reputation caused by successive defamations and to limit the damages awarded against a later tortfeasor by reason of the damage earlier inflicted on the plaintiff's reputation. When a plaintiff in a personal injuries case has been partially incapacitated by an earlier tortfeasor, the later tortfeasor's liability is assessed on the basis that the plaintiff is already partially incapacitated ((85) per Lord Keith of Kinkel in Jobling v. Associated Dairies Ltd. (1982) AC794, at p 815; and see Malec v. J.C. Hutton Pty. Ltd. (1990) 169 CLR 638.). But that is not the law governing the assessment of damages for defamation ((86) Dingle v. Associated Newspapers Ltd. (1964) AC, at pp 396, 410-411, 417-418.). And it would be a mistake to regard the consequences of the injury inflicted in the two classes of case as being comparable. The point is made by Lord Donaldson M.R. in Sutcliffe v. Pressdram Ltd. ((87) (1991) 1 QB, at p 175.):

"In relation to claims for personal injury the law calls for compensation to be assessed by reference to the pain and suffering caused by the injury itself. In cases of libel, the law calls for compensation to be assessed by reference not only to the pain and suffering caused to the plaintiff by the publication of the libel, but also to the extent to which this pain and suffering is aggravated, or reduced, by the defendant's subsequent conduct. It also requires account to be taken of the plaintiff's need to receive an award which will vindicate his or her reputation in the eyes of the public."

12. Moreover, the proposition that awards of general damages in personal injury cases can provide legitimate guidance to an appellate court reviewing a jury award of damages for defamation assumes that personal injury awards by judges are a more correct measure of compensation than defamation awards by juries. The assumption, if not ill founded, cannot be demonstrated. Judges have not always made an adequate assessment of damages for personal injuries. Until restrained by statutory capping, personal injury awards by judges have been forced upwards as fallacies which produced under-compensation have been exposed and as actuarial evidence has given courts a more accurate appreciation of the measure of economic loss. MacKinnon LJ noted in Groom v. Crocker ((88) (1939) 1 KB 194, at p 231.) "the frequent niggardliness of verdicts in cases of personal injury and the invariable profuseness in claims for defamation". If personal injury awards were to be treated as informing the standard for reviewing jury awards of damages for defamation, an appellate court reviewing such an award would be required "to look into the minds of judges, who are not, at any rate for this purpose, ordinary sensible men and women": per Nourse LJ in Sutcliffe v. Pressdram Ltd. ((89) (1991) 1 QB, at p 186.). And a trial judge would have to give to a jury in a defamation case an indication of an appropriate award for general damages for personal injuries in a case which, in the judge's opinion, was in some way comparable with the defamation in issue. That course would be, in my opinion, wholly impracticable.

13. There is a radical difference between the heads of damage in defamation and personal injury cases. And there is a difference - or at least there often appears to be a difference - between the level of damages awarded by judges and the level of damages awarded by juries ((90) see per Lord Donaldson, ibid, at pp 175-176.). These differences preclude the use of personal injury awards for comparison with jury awards of damages for defamation whether or not it is safe to assume that judicial assessments of damages for personal injury are sound. As Lord Hailsham pointed out in Broome v. Cassell and Co. ((91) supra, fn.(65).), a statutory provision directing trial by jury of issues of fact in defamation claims imports jury evaluation, not judicial evaluation, of that complex of factors in respect of which damages for defamation are awarded.

14. In my opinion, it is wrong for an appellate court to form a normative standard for reviewing jury assessments of damages for defamation by reference to awards in personal injury cases. The normative standard adopted by an appellate court in order to review a jury assessment in a defamation case must be derived from the court's own experience of jury awards in defamation actions and from contemporary community standards relating both to the subject and circumstances of the defamation and to the significance of sums of money. In forming that view, the court is more likely to be misled than assisted by a contemplation of awards in cases of personal injury.

The gravity of the defamatory matter in the two publications
15. Section 9(2) of the Defamation Act provides that a separate cause of action arises in respect of every publication to a recipient of any matter which makes an imputation defamatory of the plaintiff. A separate cause of action thus arises in respect of each defamatory imputation on publication of the defamatory matter to each recipient. The imputations which went to the jury were as follows:

(i) imputations made by the first article - (a) the plaintiff wrongly attempted to intimidate Dr Metcalf by threatening to sue him for defamation in respect of a medical report written by him; and

(b) the plaintiff wrongly brought defamation proceedings in his own name against Mr Arthur Carney, a solicitor, for the sole purpose of causing Mr Carney to forthwith cease to act for his client, Mr Rajski;

(ii) imputations made by the second article - (a) the plaintiff was wrongfully party to a conspiracy with Mr Moshe Yerushalmy to obstruct the course of justice by evading service of criminal process; and

(b) the plaintiff so conducted himself as to give rise to a reasonable suspicion that he was wrongfully party to a conspiracy with Mr Moshe Yerushalmy to obstruct the course of justice by evading service of criminal process.

The jury found the imputations pleaded in respect of the first article and the first imputation pleaded in respect of the second article. The jury were entitled to regard each article as extremely damaging and hurtful to a solicitor who is prominent and of high professional repute and to assess damages in respect of the publication of each article accordingly. The then president of the Law Society of New South Wales, Mr Thornton, read the first article as "a litany of the worst sort of conduct that a solicitor could be charged with". The second article conveyed an imputation of criminal conduct. In assessing damages, the jury were concededly entitled to regard as circumstances of aggravation five matters which the learned trial judge identified as follows:

"The first matter of aggravation was, according to Mr Hughes, the additional hurt caused to the plaintiff by reason of the fact that each of the articles sued upon was published without any prior attempt to enquire of the plaintiff as to the subject matter of the article.

16. The second matter was that the imputations which were claimed were on the evidence before the court false in that they were founded upon facts which were not facts, namely, that the plaintiff had threatened to sue Doctor Metcalf to intimidate him and secondly, that the plaintiff had sued Mr Carney, 'to knock Mr Carney out of the case'.

17. The third matter of aggravation claimed was (a) that there was documentary evidence that the jury could accept that Mr Slee knew that the imputations were false because those documents reveal that Doctor Metcalf had made no complaint against the plaintiff and that the threat to sue for defamation emanated not from Mr Carson, but from his firm and (b) that the plaintiff had never personally sued Mr Carney.

18. The fourth matter of aggravation was put alternatively to the third, namely, that Mr Slee was recklessly indifferent to whether the imputations were true or false for reasons similar to those set out in the third head.

19. The fifth matter of aggravation claimed was the refusal or failure of the defendants to make a proper apology." Two other matters of aggravation were allowed to go to the jury after contest which his Honour identified as the 7th and 8th matters of aggravation. They were as follows:
"the defendants, through their counsel, by the
cross-examination of the plaintiff were suggesting impropriety in the signing of the default judgment by the plaintiff in respect of an action brought against Doctor Rajski. ... the cross-examination of the plaintiff in which there was a suggestion put to the plaintiff that he had an improper motive in bringing the proceedings for defamation, the subject of the two actions before the court." The imputations found by the jury and the circumstances of aggravation which went to the jury and which the jury were entitled to act upon clearly show that the attack made on the professional conduct of the plaintiff was extremely serious. The "relevant harm" caused by both articles was exacerbated by the conduct of the trial. The jury were entitled to regard the second article as making not only the most damaging imputation, namely, a criminal conspiracy, but as causing more substantial injury to the plaintiff than the first article because the first article had made the plaintiff more susceptible to injury by the second. Mahoney JA rightly said that the effect of any damage to the plaintiff's reputation was apt to be great.

20. Vindication of the plaintiff's reputation might properly have been regarded by the jury as the dominant factor to be borne in mind in making the assessments of damages in respect of each publication. The jury might well have thought that substantial sums were needed to dispel any suspicion of professional misconduct in the respects imputed, bearing in mind that damages in order to vindicate must be large enough to ensure that the plaintiff does not suffer injury in the future from any lingering cloud left hanging over the plaintiff's reputation. There is no further allowance made for future injury to reputation. As McHugh JA said in John Fairfax and Sons Ltd. v. Kelly ((92) (1987) 8 NSWLR 131, at p 142.):

30. If the aggravating conduct of the defendant has caused the plaintiff to fear or worry that the defamation may be repeated, an award which is calculated to deter the defendant from repeating the defamation and thus alleviating the plaintiff's fears or worries is properly within the concept of damages recoverable at common law for relevant harm. No doubt in such a case the defendant is being punished for his or her conduct because the damages are being increased to deter that person from again defaming the plaintiff. But the damages are compensatory. They seek to ensure that the monetary payment will restore the plaintiff to the position which he or she was in before the defamation. Similarly, if the jury thinks that the plaintiff's pain, hurt or humiliation can only be alleviated by an award which hurts or punishes the defendant, it is making an award of aggravated compensatory damages. No doubt such cases are exceptional. But they are within the common law concept of compensation for the harm done by a defamatory publication. Nothing in s.46 abolishes them.

31. Section 46(3)(b) provides that the malice or other state of mind of the defendant can only aggravate the harm done to the plaintiff when it "affects" that harm. In practice that prohibition appears to have made little difference to the assessment of aggravated compensatory damages. The chief field of operation for s.46(3)(b) has been the prevention of an additional award of damages because of the way that the defendant has conducted the trial when that conduct has not affected the plaintiff. In theory, proven malice or other improper state of mind of the defendant may exist without affecting the harm done to a plaintiff, but in practice such cases are likely to be rare. More often than not, once malice is established, the inference is irresistible that the conduct which caused the harm was actuated by the proven malice or other state of mind of the defendant. If it was, the malice or other state of mind of the defendant has affected the harm which the plaintiff suffered and may be taken into account by the jury.

32. It follows from the foregoing account of the law of aggravated compensatory damages that the learned President of the Court of Appeal was in error in holding that an award of aggravated damages in New South Wales could not include an amount which represented punishment of the defendant. However, in this case the point is academic. The jury were told that they were not to award damages by way of punishment and, as I have already said, the verdicts can be sustained as reasonable without any need to assume that they contain damages by way of punishment.

Comparison with personal injury awards
33. Counsel for the plaintiff contended that the learned President had erroneously taken awards in personal injury cases into account as a criterion for determining whether the awards in this case were excessive. Although his Honour said that it was ((194) (1991) 24 NSWLR, at p 273.) "safer not to venture any precise comparisons with personal injury cases", it seems that nevertheless his Honour thought that a comparison could be made. Thus, after referring to a personal injury award to a Mrs Cappelletto, his Honour said that ((195) ibid, at p 274.) "in so far as one may compare that verdict to this, it seems difficult to say that the damages to Mr Carson was greater than to Mrs Cappelletto, in aggregate, and by a magnitude of 2.4".

34. Hitherto, the law of this country and of England has refused to permit awards in personal injury cases to be used as a benchmark to determine the reasonableness of awards by juries in defamation cases. On two occasions in the last three years, the English Court of Appeal has rejected the use of personal injury awards as a benchmark ((196) Sutcliffe v. Pressdram Ltd. (1991) 1 QB 153; Rantzen v. Mirror Group (1993) 143 NLJ 507.). In Coyne v. Citizen Finance Ltd. ((197) (1991) 172 CLR 211.), a majority of this Court denied that the adequacy of awards in defamation cases could be tested by reference to awards in personal injury cases. Moreover, in Planet Fisheries Pty. Ltd. v. La Rosa ((198) (1968) 119 CLR 118.), this Court held that the adequacy of awards in personal injury cases is not to be determined by reference to any norm supposed to be derived from awards in other personal injury cases. If awards in personal injury cases cannot be tested by reference to other awards in that class of case, it must follow that awards in defamation actions cannot be tested by reference to awards in personal injury cases.

35. I have had the advantage of reading the reasons which the majority give for using personal injury awards as a benchmark for determining the reasonableness of defamation awards. But I am unable to regard the considerations to which they refer as justifying any change in the law as it has long been understood in this country and in England. Awards in personal injury cases and defamation actions serve different purposes, have different elements and different histories. They are not comparable. I think that it is a mistake to believe that the pain and suffering component of a personal injury award can be isolated from the other components of that award and then compared to an award of compensatory damages in a defamation action. As the discussion on aggravated damages has shown, the purposes of an award of aggravated compensatory damages in a defamation action are different from the purpose of an award of general damages in a personal injury action.

36. In a personal injury action general damages, inter alia, seek to compensate the plaintiff for the pain and suffering which that person has suffered or will suffer in the future. No element of punishment or deterrence enters into an award in a personal injury action. Nor is the tribunal of fact in such an action entitled to increase or reduce its award by reasons of the conduct or state of mind of the parties or allow its indignation at the defendant's conduct to be reflected in the verdict. Furthermore, as Lord Hailsham pointed out in Broome ((199) (1972) AC, at p 1071.) the fact that an award of damages in a defamation action must also serve the purpose of vindicating the plaintiff in the eyes of the community, now and for the future, makes comparisons between personal injury and defamation awards inappropriate. If any comparison could be made, it would surely be between the verdict which the plaintiff in a personal injury action gets for all the consequences of the defendant's wrong and the verdict which the plaintiff in a defamation action gets for all the consequences of the defendant's wrong. Accordingly, I am unable to accept the view that awards for pain and suffering in personal injury actions provide any guidance as to what is a reasonable award of damages in a defamation action.

37. Moreover, even if, contrary to my view, appellate courts ought to make comparisons between personal injury and defamation verdicts, I venture to suggest that the efficiency of defamation trials will not be advanced by judges or counsel in those trials referring the jury to sums awarded as damages for pain and suffering in personal injury cases. An award of damages for pain and suffering in a given case can only have meaning for the jury if the jury are able to understood the full facts and circumstances of the particular award. What was the nature of the injury or injuries? How long did their effects persist? Are only awards for the most serious forms of permanent injury such as blindness or quadriplegia to be considered? Whatever be the answer to these questions, the jury will need to know many details about the extent and effect of the injuries and the age and background of the injured person before the award can have any real meaning to the jury.

38. Once it is accepted that reference to personal injury awards also means reference to detail, any possible advantage to be served by referring to them is outweighed by the cost and inconvenience of that course. Ought the judge refer to more than one award? Should counsel be invited to make submissions as to which awards are relevant? Is a verdict in a defamation case to be set aside because the trial judge referred to the wrong amounts or to the wrong awards? The answer to these questions seems to me to be - yes. If that is so, counsel for the parties will need to be heard. The length of time in trying what is already a notoriously lengthy class of action will be further lengthened while rival counsel engage in a profitless debate before judge and jury as to why awards in another class of action are or are not of assistance in determining what is a reasonable award for the defamation of this particular plaintiff.

The judgment of Priestley JA
39. Although Priestley JA was in general agreement with the reasons of the learned President, it is clear that his Honour did consider whether each verdict could be upheld. Priestley JA expressed the view that the verdict in respect of the first article could be upheld if it "were being considered in isolation" ((200) (1991) 24 NSWLR, at p 303.). However, his Honour thought that that verdict should be set aside because he concluded that the second verdict contained a "punitive element" and that the "possibility must be very real that the jury, when fixing the figure for the earlier article, were influenced by the same factor that made them go wrong in their award in the later one" ((201) ibid). I have already given reasons for holding that the inclusion of a punitive element is not itself a ground for setting aside either verdict. Furthermore, as I have already said, both verdicts can be sustained as reasonable without any need to assume that they contain damages by way of punishment. It follows that his Honour erred in setting aside the first verdict. Moreover, with great respect to his Honour, even if it were demonstrated that in assessing the second award the jury had wrongly taken into account some factor that they ought not to have considered, that is no reason for setting aside a verdict which cannot otherwise be classed as unreasonable.

40. Counsel for the defendants sought to uphold the approach of Priestley JA by reference to a number of cases, particularly the judgment of this Court in King v. Ivanhoe Gold Corporation Ltd. ((202) (1908) 7 CLR 617.) where the Court upheld the decision of the Full Court of the Supreme Court of Western Australia that there should be a general new trial of an action because the jury had erroneously assessed the damages. Griffith CJ said ((203) ibid, at p 622.) that "when a jury has gone quite wrong on one part of the case, although technically severable from another, it is sometimes difficult to say that the mistake made on one point does not affect their views on another point". However, that statement was made in a case where the issue was whether there should be a general new trial of the action or a new trial limited to damages. In such a case, the prima facie rule is that, if a mistake has been made on one part of the case, there should be a general new trial unless there is some special reason for confining the new trial to the issue of damages ((204) Pateman v. Higgin (1957) 97 CLR 521, at p 527.). Neither the statement of Griffith CJ nor any of the other statements relied upon have any relevance to the issue whether the verdict in one action should be set aside because the jury, which heard that action, erred in another action which it heard with the first action.

41. Before an appellant can have a verdict set aside, that person must show that the verdict was the result of error. If the appellant does so, the Court then has a general discretion to order a new trial generally or to limit it to damages. But a defendant does not show that the verdict in one action is erroneous because it can show that the verdict in another action was erroneous. Moreover, in the present case, the parties to each action were different.

The effect of the errors
42. Since the reasons which led the majority of the Court of Appeal to set aside the verdict were erroneous in my opinion, it follows that the appeal must be allowed unless the amount of each verdict was so high as to indicate that the jury failed to perform its duty or that the defendants' notices of contention succeed. However, for the reasons given by Brennan J and Toohey J, I am of the opinion that the defendants' notices of contention or applications for special leave succeed. Furthermore, I am of the opinion that the size of neither verdict was so high that it demonstrates that the jury failed to perform its duty.

Unreasonableness
43. An appellate court should be extremely reluctant to interfere with the award of damages by a jury in a defamation action. It is unnecessary to repeat once again the many statements by judges of eminence to that effect. Some of then were referred to by Toohey J in Coyne v. Citizen Finance Ltd. ((205) (1991) 172 CLR, at pp 238-239.) in a judgment with which Dawson J and I agreed. The elements of an award of damages in a defamation action are so intangible and the criterion of value so vague that no two persons are likely to agree, even approximately, on what is a proper award for a defamation. This is so even in a case where exemplary damages cannot be awarded. In Watson, Laidlaw and Co. Ltd. v. Pott, Cassels and Williamson ((206) (1914) 31 RPC 104, at p 118.), Lord Shaw pointed out:

"(R)estoration being in point of fact difficult, as in the case of loss of reputation ... the task of restoration under the name of compensation calls into play inference, conjecture, and the like. This is necessarily accompanied by those deficiencies which attach to the conversion into money of certain elements which are very real, which go to make up the happiness and usefulness of life, but which were never so converted or measured. The restoration by way of compensation is therefore accomplished to a large extent by the exercise of a sound imagination and the practice of the broad axe."

44. No doubt the rough-and-ready process by which juries assess damages in a defamation action is not one which appeals to the many sophisticated minds of the spreadsheet generation. It does not, as the speech of Lord Shaw makes plain, purport to be a scientific, or even a pseudo-scientific, process. There are no columns and rows into which the components of the verdict can be conveniently placed, no relationships which can be made the subject of mathematical formulas. The assessment depends upon nothing more than the good sense and sound instincts of jurors as to what is a fair and reasonable award, having regard to all the circumstances of the case. That is why the damages are said to be "at large".

45. In these circumstances, the case needs to be an extraordinarily strong one to persuade an appellate court that the verdict of the jury is so high or so low that it is unreasonable. An appellate court should not set aside a defamation verdict on the ground of unreasonableness unless it is satisfied that, if the relevant facts were known, public opinion would be almost unanimous in its condemnation of the verdict. Only by the application of such a canon of restraint can the jury's right to assess the damages be protected from judicial interference.

46. In Coyne ((207) (1991) 172 CLR, at pp 214-216.) Mason CJ and Deane J were critical of statements concerning the need for appellate courts to be reluctant to interfere with the defamation verdict of a jury. They said that ((208) ibid, at p 215.) : "in this country where judges commonly assess defamation damages ... there is no compelling reason why the assessment of damages for defamation should be seen as falling with the exclusive or special competence of a jury". However, for over a hundred years, the appellate courts of this country have acted, not occasionally, but regularly and uniformly, on the basis that an appellate court should be slow to interfere with the verdict of a jury in a defamation action. We should not readily assume that "knowledge and wisdom reside in us which was denied to our predecessors" ((209) Smith v. Allwright (1944) 321 US 649, at p 666.). Trial by jury in defamation cases has not been automatic in this country for many years. Nevertheless, Dixon, Williams, Webb and Kitto JJ applied the traditional approach in Triggell v. Pheeney ((210) (1951) 82 CLR, at pp 516-517.) when they restored the plaintiff's verdict in that action. A majority of this Court also applied the traditional approach in Coyne, notwithstanding the dissent of Mason CJ and Deane J who espoused the very argument which is now relied upon to challenge the continued use of the traditional approach. Furthermore, there are numerous decisions in the Full Courts of the Supreme Courts of the States and the Court of Appeal of New South Wales which have applied the traditional approach ((211) Justin v. Associated Newspapers Ltd. (1966) 86 WN(NSW) 17; Mutch v. Sleeman (1929) 29 SR (NSW) 125; Kornhauser v. Fairfax and Sons Pty. Ltd. (1964) NSWR 199; Andrews v. John Fairfax and Sons Ltd. (1980) 2 NSWLR 225; John Fairfax and Sons v. Kelly (1987) 8 NSWLR 131; Brown v. Syme (1890) 16 VLR 392; McKenzie v. Hocking (No.2) (1912) 14 WALR 98.).

47. Moreover, it is not easy to see why this Court should reject the traditional approach to jury verdicts in defamation actions simply because judges in most States can try those actions unless an order or election to the contrary is made. Notwithstanding the legislative framework, all but a small percentage of verdicts in defamation actions in this country are given by juries, most of them in New South Wales where jury trial is a matter of right. Furthermore, an appeal against a judge's verdict is a rehearing in which the appellate court has the advantage of a judgment which sets out, or ought to set out, all relevant findings. That is not the case with a jury verdict. Given the very great difference between the two classes of appeal, I am not persuaded that any basis exists for departing from the approach to jury verdicts which has prevailed for so long in this country and in England.

The award of damages in this case
48. The award of damages in respect of each article is extremely high. But I am unable to accept that each award was so high that its size demonstrates that the jury failed to perform its functions. On the uncontradicted evidence, the plaintiff was a person of the highest reputation and character who was a partner in a large firm of solicitors with important commercial clients for whom he had acted. He was prominent in the legal profession and had served as a councillor of the Law Society of New South Wales and as a member of a sub-committee of the Council responsible for making rulings upon the ethical conduct of solicitors. Against this man, whom the jury were entitled to find was of impeccable reputation and professional standing, were published grave and defamatory imputations on two separate occasions in a newspaper with a circulation of over 200,000 copies and an estimated readership of 800,000 persons. They were published on the editorial page of a newspaper "of record" and written by a distinguished journalist on whose statements readers could be expected to rely. Moreover, the jury were entitled to conclude that the conduct of the defendants had aggravated the damage done by the publications. Although it would be absurd to think that the articles were read by every reader or even a majority of readers, the point is worth making that the damages awarded to the plaintiff in respect of the first article represented 25 cents for every reader of the paper containing that article and in respect of the second article 50 cents for every reader of the paper containing that article.

49. Throughout the history ((212) Three hundred years ago in Lord Townsend v. Dr Hughes (1676) 2 Mod. 150 (86 ER 994), the jury awarded the enormous sum of pounds 4,000 for the statement that the plaintiff was "an unworthy man, and acts against law and reason". No special damage was proved. Yet North CJ, Wyndham and Scroggs JJ refused to hold that the verdict was excessive.) of the common law of defamation, juries have consistently awarded large sums for libels and slanders, and courts of appeal have consistently upheld the awards. In Triggell v. Pheeney, for example, this Court in 1951 upheld a jury's award of pounds 1,955 ((213) equivalent to more than $45,000 in today's currency.) for the false and malicious publication to a single person of an imputation that the plaintiff had stolen a sow and litter belonging to the defendant. Absent proof of legal error or miscarriage of justice, the cases where a jury's verdict has been set aside on the ground of unreasonableness have been comparatively rare. High though the awards in the present case undoubtedly are, I do not think that they demonstrate that the jury failed to carry out its duty.

The first article
50. The first article contained the defamatory imputations that the plaintiff had wrongly attempted to intimidate a doctor by threatening to sue him for defamation and that he had wrongly brought defamation proceedings against a solicitor for the sole purpose of causing the solicitor to cease to act for a client. These were grave imputations to make against a solicitor. If true, they called for disciplinary action against the plaintiff and, many may have thought, for striking him off the Roll of Solicitors. But the imputations were not true. Moreover, it was conceded in the Court of Appeal ((214) See (1991) 24 NSWLR, at p 284.) that the jury could find that the author of the article knew that it was false that the plaintiff had attempted to intimidate the doctor or force the solicitor from acting for his client.

51. There were other aggravating features. The first article was published without any inquiry of the plaintiff. After publication, the defendant company did not take up the plaintiff's offer to discuss the facts of the Tectran litigation with one of its senior journalists. The jury were entitled to regard the belated apology of the defendant as inadequate and indeed insulting. They were also entitled, as Kirby P said ((215) ibid, at p 274.), "to take a very serious view of the way the trial was conducted, particularly of the suggestion that the real motive for the action was the improper one 'to shut Slee up'".

52. Much was made in the Court of Appeal of the fact that the plaintiff "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" ((216) ibid, at p 275). But the jury were entitled to treat this point as of little moment. To sue a great metropolitan newspaper is not a thing to be done lightly. The emotional and financial costs of embarking on a defamation action against such a defendant are very high. The result can never be certain. Failure can mean financial ruin.

53. Much also was made of the fact that the plaintiff claimed no monetary loss in respect of either publication. But this does not mean that financial damage was a matter which the jury could not consider. For a partner in a large and important commercial firm of solicitors to prove actual loss in the period between publication and trial is no easy matter. Any loss by the solicitor is likely to be masked by the pool of earnings to which all the partners contribute. The difficulty of proof is exacerbated when incomes are rising, as they probably were in the legal profession at the relevant time ((217) The golden age of commercial litigation and advising in Australia was not yet ended.). Indeed, the case where actual loss can be proved in the case of a partner in a large firm is likely to be exceptional, confined to the case where established clients refuse to have further dealings with the solicitor. Actual, but unprovable loss, is more likely to arise from the potential clients who turn to other firms. However, even when no actual loss is proved, it is still open to the jury to take into account the prospect of financial damage. This is because the jury is entitled to hold that the defamatory imputations will have damaged the financial goodwill attached to the name and reputation of the solicitor.

54. When regard is had to all the circumstances of the first publication, including the harm and hurt to the plaintiff and the conduct of the defendant, I am unable to conclude that the award was so high that it goes beyond the purpose of a defamation action - vindication of the plaintiff and the provision of a proper solatium for the wrong done to him.

The second article
55. One year after the first publication, without any inquiry of or warning to the plaintiff, the defendants published an even graver defamation which, so the jury found, imputed to the plaintiff the commission of an indictable, criminal offence. The imputation which the jury found was that the plaintiff "was wrongfully party to a conspiracy with Mr Moshe Yerushalmy to obstruct the course of justice by evading service of criminal process". The jury were entitled to conclude that the imputation was untrue. The imputation was made in a context of a statement that the Director of Public Prosecutions had "begun to move against two people and is actively considering prosecuting two more". No apology was ever offered for this grave defamation. The defendants called no evidence. The jury were entitled to conclude, therefore, that nothing the defendants could say would assist their case or cut down any adverse inferences which could be drawn from the evidence on which the plaintiff relied ((218) Jones v. Dunkel (1958) 101 CLR 298, at pp 320-322.). Furthermore, the trial was so conducted that Kirby P declared that "the jury was entitled to take a very serious view of the way the trial was conducted, particularly of the suggestion that the real motive for the action was the improper one 'to shut Slee up'".

56. Against this background, it was open to the jury to conclude that an award of compensatory damages for the second article would not satisfy the damage, hurt, humiliation and worry suffered by the plaintiff unless they awarded a very large sum. As Mahoney JA pointed out ((219) (1991) 24 NSWLR, at p 300.) :
"The second charge, related to the crime of perversion of
justice, could be thought to be much more serious than the first: for myself, I would regard it so. But in addition the circumstances of the publication of the second article greatly increased the hurt and the harm, and the need for vindication. Following the first article, Mr Carson had, legitimately it might be thought by the jury, complained about Mr Slee's failure to inquire as to the facts and about the errors he had made in what he wrote. Mr Carson offered to disclose and discuss the facts. And he asked for corrections. The jury could categorise as insulting or contemptuous the way in which these were dealt with by the defendants. And then the second article was published, without inquiry, inaccurately, and without warning. The need for vindication alone would, I think, have warranted a greatly increased award for the second article. The jury might conclude that if, following what Mr Carson had done in respect of the first article, the defendants saw fit to publish the second article, and in the manner they did, a very large sum was required to vindicate him to those whose opinion he valued."

57. Extremely high though the award undoubtedly is, its size does not demonstrate to me that the jury failed to perform or misunderstood its function. Even without the inclusion of any sum reflecting elements of punishment or deterrence, the verdict can be supported as reasonable in the sense that that term is used in the cases.

58. Because the awards are so much higher than any judge is likely to have awarded, there is a great temptation to think that the amounts are too high to be reasonable. But an appellate court must bear in mind that the Parliament of New South Wales has left it to juries to assess the damages for defamation in an action tried in that State. Parliament has done so knowing that jurors are required to assess those damages with no more guidance than their own good sense and sound instincts as to what is a fair and reasonable award having regard to all the circumstances of the case including the conduct of the defendants. The position and standing of the plaintiff; the gravity of the defamatory imputations; the widespread circulation of the newspaper and the conduct of the defendants, as it appears from the record of the trial, clearly required very large verdicts once the defendants lost the issue of liability. Add to those matters the failure of the defendants to call any evidence to justify or explain their conduct or the circumstances of the publications, and the verdicts, if not inevitable, were "on the cards". If these cases were tried again on the same facts, accompanied by the same tactics, it is quite possible that the jury would return similar verdicts. That being so, I do not think that the awards can be condemned as unreasonable.

Orders 59. I would allow the appeals and restore the jury's verdicts.