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Dods v McDonald (No 2)

Dods v McDonald (No 2)

Case [2016] VSC 201 6 May 2016

Defamation

Compensatory Damages

Aggravated & Exemplary Damages

Defamation Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2013 01637

COLIN DODS	Plaintiff
v
MICHAEL McDONALD	Defendant

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JUDGE:	Bell J
WHERE HELD:	Melbourne
DATES OF HEARING:	4, 5, 6, 9, 10 & 11 November 2015
DATE OF JUDGMENT:	6 May 2016
CASE MAY BE CITED AS:	Dods v McDonald (No 2)
MEDIUM NEUTRAL CITATION:	[2016] VSC 201

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DEFAMATION – assessment of damages following verdict of jury for plaintiff – publication of defamatory statements on defendant’s Internet website – plaintiff one of four police officers involved in death by shooting of boy aged 15 years – coronial inquiry exonerated plaintiff of personal responsibility – defendant stated (among other things) that plaintiff had ‘executed’ the boy and ‘gunned [him] down … like he was a monster and a dangerous mongrel dog’ – very grave defamations about serving police officer – no mitigating circumstances – plaintiff feels intense distress, humiliation and embarrassment – scope of publication not large - importance of vindication (nailing the lie) – aggravated damages – whether defendant’s failure to apologise and retract and conduct of his defence improper and unjustified – requirement for amount of damages to bear appropriate and rational relationship to harm sustained by plaintiff – Defamation Act 2005 (Vic) s 34.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr D Bracken	Tony Hargreaves & Partners
For the defendant	Mr T Greenway	Rigby Cooke Lawyers

HIS HONOUR:

Colin Dods is a sergeant of police. He was one of four officers present when one of them shot Tyler Cassidy dead in December 2008. Michael McDonald is a barrister in Queensland. In June and July 2012, he published two statements on pages of his Internet website (justice4tylercassidyjust15.com) about the plaintiff’s involvement in the shooting. In the trial before a jury of the plaintiff’s proceeding for damages for defamation in respect of those publications, a verdict in favour of the plaintiff was given. Pursuant to s 22(3) of the Defamation Act 2005 (Vic), it is now my function to determine what damages should be awarded.

Death of Tyler Cassidy

Tyler was shot dead on the evening of 11 December 2008 at All Nations Park, Northcote. He was aged 15 years and eight months. Ten shots were fired by three of the four police officers, including the plaintiff. Five of those shots struck Tyler, one of them fatally.

In the time immediately leading up to the shooting, Tyler had armed himself with two large knives that he stole from the Kmart store inside the Northcote Plaza Shopping Centre which is adjacent to All Nations Park. He began moving through the shopping centre and its shops and car park, threatening people with the knives and demanding that police be called.

Four officers, including the plaintiff, arrived in two vans. A confrontation occurred between the police and Tyler, who threatened them with the knives and in language. After being pursued into the park, Tyler turned to face the police. Refusing to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dods v McDonald (No 2)

Details

AGLC: Dods v McDonald (No 2) [2016] VSC 201
Case: [2016] VSC 201
Decision Date: 6 May 2016

CaseChat Overview and Summary

The matter before the court involved a defamation claim brought by a police officer against an individual who published defamatory statements on their website. The defamatory statements related to the police officer's involvement in the shooting death of a 15-year-old boy. The plaintiff was one of four officers involved in the incident, and while the coronial inquiry found the plaintiff not personally responsible, the defendant published statements that the plaintiff had 'executed' the boy and 'gunned [him] down … like he was a monster and a dangerous mongrel dog'. The court was tasked with determining the appropriate amount of damages to award to the plaintiff for the harm caused by the defamatory statements.

The primary legal issues addressed by the court included the assessment of damages following the jury's verdict in favour of the plaintiff. The court needed to consider the gravity of the defamations, the lack of mitigating circumstances, the extent of the publication, the importance of vindication, and the defendant's failure to retract or apologise for the statements. The court also had to determine whether the defendant's conduct during the trial was improper and unjustified, and whether this warranted an increase in the damages awarded. The court's reasoning focused on the necessity for the damages to reflect the harm sustained by the plaintiff and to maintain an appropriate and rational relationship with the harm caused.

The court found that the defamatory statements were of a very grave nature, particularly given they related to a serving police officer. The lack of mitigating circumstances, such as the limited scope of publication, did not diminish the impact on the plaintiff. The court emphasised the importance of vindication in such cases, where the defendant's lies needed to be 'nailed'. The court also considered the defendant's failure to retract or apologise, as well as the conduct during the trial, as factors that warranted an increase in the damages awarded. The court ultimately decided that the amount of damages should be sufficient to reflect the harm caused to the plaintiff, while also ensuring that it bore an appropriate and rational relationship to that harm.

The court awarded the plaintiff aggravated damages, taking into account the severity of the defamatory statements and the defendant's conduct. The final orders included an amount of damages to compensate for the distress, humiliation, and embarrassment suffered by the plaintiff, as well as a sum for aggravated damages to reflect the improper and unjustified conduct of the defendant.

Orders