Duffy v Google Inc (No 2) - [2015] SASC 206

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
DUFFY v GOOGLE INC (NO 2)
[2015] SASC 206
Judgment of The Honourable Justice Blue
23 December 2015
DEFAMATION - ACTIONS FOR DEFAMATION - TRIAL - EVIDENCE - PLAINTIFF'S REPUTATION AND CREDIT
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - INJURY TO REPUTATION IN BUSINESS, PROFESSION, TRADE OR CALLING
DEFAMATION - DAMAGES - GENERAL DAMAGES - ASSESSMENT
Assessment of damages for defamation.
Reasons for judgment previously delivered finding the defendant liable for defamation.
The defendant published on its Australian website between January and December 2010 paragraphs relating to two webpages on the ripoffreport.com website and between January and October 2010 a paragraph containing extracts from another webpage. The publications variously contained 14 defamatory imputations including that the plaintiff stalked psychics, spread lies, engaged in scams and criminal conduct, fraudulently accessed others’ electronic materials and threatened and manipulated others.
The plaintiff seeks general damages, aggravated damages and damages for economic loss.
Held:
1.       The plaintiff failed to prove that she suffered a diminution in earning capacity as a result of the defamatory publications by reference to the response of employers to employment applications, her psychiatric health or her devotion to the litigation (at [79]).
2.       The fact that the defendant did not apologise and persisted in a defence of justification does not give rise to aggravated damages because the defendant’s conduct was not in bad faith, improper or unjustifiable (at [85], [89]).
3.       General damages assessed at $100,000 (at [131]).
Defamation Act 2005 (SA) s 32, s 33; Limitation of Actions Act 1936 (SA) s 37, referred to.
Ali v Nationwide News Pty Ltd [2008] NSWCA 183; Broome v Cassell & Co [1972] AC 1027; Carson v John Fairfax and Sons Limited Carson (1993) 178 CLR 44; Clark v Ainsworth (1996) 40 NSWLR 463; Coyne v Citizen Finance Limited (1991) 172 CLR 211; Herald and Weekly Times Limited v McGregor (1928) 41 CLR 254; Humphries v TWT Ltd (1993) 120 ALR 693; Triggell v Pheeney (1951) 82 CLR 497, discussed.
Barrow v Bolt & Anor [2015] VSCA 107; Carson v John Fairfax and Sons Limited (1993) 178 CLR 44; Chakravarti v Advertiser Newspapers Limited [1998] HCA 37; 193 CLR 519; Clark v Ainsworth (1996) 40 NSWLR 463; Cornes v Ten Group Pty Ltd (2011) 114 SASR 1; Coyne v Citizen Finance Limited (1991) 172 CLR 211; Duffy v Google Inc [2015] SASC 170; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254; Jeffrey and Curnow v Giles; Giles v Jeffrey and Curnow [2015] VSCA 70; March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506; Tassone v Kirkham [2014] SADC 134, considered.

DUFFY v GOOGLE INC (NO 2)
[2015] SASC 206
Civil:
BLUE J:

Dr Janice Duffy sues Google Inc for damages for defamation.
On 27 October 2015, I delivered reasons for judgment on liability.[1] I found that Dr Duffy was defamed by publication by Google via its Australian website between January and December 2010 of paragraphs containing extracts from and hyperlinks to two webpages on the ripoffreport.com website and by those two ripoffreport.com webpages themselves, and between January and October 2010 of a paragraph containing extracts from a webpage on the 123people.com website.
[1] Duffy v Google Inc [2015] SASC 170. Google pleaded a defence of triviality under section 31 of the Defamation Act 2005 (SA) to one of the publications which was deferred to a second trial but I found that that publication was not defamatory. Google pleaded a time limitation defence under section 37 of the Limitation of Actions Act1936 (SA) which was deferred to a second trial but Google has abandoned that defence.
I found that the extracts from the three webpages and the two ripoffreport.com webpages contained imputations defamatory of Dr Duffy being variously that Dr Duffy stalks psychics and harasses them by persistently and obsessively pursuing them, spread lies, engaged in scams and criminal conduct, fraudulently accessed others’ electronic materials, threatened and manipulated others, was an embarrassment to her profession and was unable to function in day to day life.
I found that defences of innocent dissemination, qualified privilege, justification and contextual truth failed in respect of these imputations.
I have heard further evidence and now address the assessment of damages.
Background
Dr Duffy was born in 1956.
Between 1987 and 1991, Dr Duffy undertook a Bachelor of Arts Honours degree at Flinders University (awarded in 1992). In 1990, she was diagnosed as suffering from depression. She was prescribed an anti-depressant, attended psychological counselling and recovered after a few months. Between 1993 and 1997, Dr Duffy undertook a PhD at Flinders University (awarded in 1999).
Between 1998 and 2000, Dr Duffy was employed by Flinders University. In 1998 and 1999, she was a project officer and then project manager in the Department of General Practice. In 2000, she was a lecturer in the Department of Public Health.
Between 2001 and 2010, Dr Duffy was employed by the South Australian Department of Health. From 2001 to March 2003, she was a senior research officer at the Community Health Research Unit Southern Region. In January to March 2003, she was away from work.
In January 2003, Dr Duffy lodged a claim for workers compensation alleging that bullying by her manager caused her absence from work. She had several consultations with a psychologist Michael Gordon and was assessed by a psychiatrist Dr Zsolt Lukacs. She was diagnosed as suffering from major depression and generalised anxiety disorder.
In March to June 2003, Dr Duffy was a senior research officer at the Social Inclusion Unit in the Department of Premier and Cabinet. In July 2003, she was transferred to the Research Analysis and Evaluation Unit in the Department of Health.
In mid-2006, Dr Duffy was informed that her redeployment would end and she may be transferred back to the Community Health Research Unit Southern Region. She again suffered from major depression related to her work uncertainties and difficulties caring for her father. She consulted Mr Gordon again.
In September 2006, Dr Duffy was transferred to the Respiratory Function Unit at the Repatriation General Hospital at Daw Park. In May to July 2007, she again suffered from major depression and was away from work. This was connected to ongoing uncertainty at work. A contributing factor was her feelings of rejection by John and to an extent her disillusionment with certain Kasamba psychics.
In September 2008, Dr Duffy suffered a fall, causing a closed head injury and concussion. By November 2008, there were uncertainties whether there was space or funding for her to return to the Repatriation General Hospital and uncertainty as to where she would be redeployed. This in turn caused her anxiety and depression. She stayed home. In January 2009, she lodged a workers compensation claim on the basis that stress and uncertainty about her redeployment were causing her anxiety and depression and preventing her working.
In February 2009, Dr Duffy was referred to Robyn Freeman, a psychologist specialising amongst other things in workplace related issues. In May 2009, Ms Freeman provided a medical report to Dr Duffy’s solicitor in her workers compensation claim. She reported that Dr Duffy qualified for a diagnosis of major depression with anxiety. She considered that Dr Duffy’s current psychological difficulties were the result of uncertainty of her future employment and conflict with Flinders Medical Centre arising from her claims of earlier bullying.
In June 2009, Dr Duffy was interviewed by a psychiatrist, Dr Tony Davis, at the request of the Department of Health’s workers compensation claims manager. Dr Davis provided a medical report in July 2009. Dr Davis expressed the opinion that Dr Duffy had experienced a chronic depressive disorder dating back to childhood consistent with a diagnosis of dysthymia and had suffered from a major depressive disorder since November 2008. He expressed the opinion that this was caused by the unresolved issues relating to the alleged bullying in 2002-2003, uncertainties at work involving her redeployment, her inability to maintain self-esteem through work and challenges posed by her ageing father. He recommended ongoing psychiatric treatment, combining pharmacotherapy with psychotherapy from Ms Freeman. He considered that, if she was offered long-term meaningful work, it was highly likely that she would experience further improvement in mental state and be able to maintain this for a prolonged period.
In September 2009, Dr Duffy sent emails to Google complaining that (amongst others) the six Ripoff Report webpages, the four Complaints Board webpages and the first 123People webpage and paragraphs returned on search results linked to them were defamatory and requesting that Google remove URLs that linked to and derived from those publications. On 7 October 2009, Google’s removals team sent a standard form email to Dr Duffy saying that there was nothing Google could do to remove the offending content without the cooperation of the site’s webmaster.
On 25 January 2010, Dr Duffy told Ms Freeman that her depression had lifted and she now felt angry. She did not see Ms Freeman over the next two months. On 31 March 2010, she returned to see Ms Freeman and continued to see her approximately fortnightly until August 2010.
In July 2010, Dr Duffy sent a concerns notice to Google in the United States. This was largely repetitious of the September 2009 notifications including some additional webpages.
In August 2010, Dr Duffy entered into a redemption agreement with WorkCover under which WorkCover agreed to pay to her $121,400 and she agreed to resign her employment and not for the next three years seek employment with any South Australian public sector agency, board or authority. I infer that the Department of Health paid her leave entitlements and severance pay of the order of $80,000. Dr Duffy’s employment with the Department of Health ceased.
On 23 August 2010, Dr Duffy saw Ms Freeman. She told Ms Freeman that she had settled with the Department of Health and received a total package of $200,000 non-taxable. She was now going to take time out for the rest of the year and in April 2011 planned to travel to Europe.
Dr Duffy spent the next two months putting together a case against Google and looking for legal representation.
On 6 October 2010, Dr Duffy saw Ms Freeman. She told Ms Freeman that her depression was gone. She had now received her payment which would last for four to five years. She was still doing nothing and planning to write a book on postmenopausal health.
In October 2010, Dr Duffy instructed solicitors to act for her in a claim against Google for defamation.
On 20 November 2010, on the advice of her solicitors, Dr Duffy sent a further concerns notice to Google in the United States. This was largely repetitious of her previous notifications. On 16 December 2010, Google sent an email in similar terms to its October 2009 response.
On 19 January 2011, Dr Duffy saw Ms Freeman. She was feeling very confident and was not emotionally involved now. She had financial security and planned to travel. She was researching how to set up an online advertising business. On 20 January 2011, Ms Freeman wrote to Dr Duffy’s general practitioner saying that Dr Duffy had successfully emerged from a long-term dispute with her former employer, and that she had emerged in very good spirits but was yet to settle into a routine around her unemployed status. She had plans to travel in the next few months and was taken up with caring for her elderly parents. She had also developed some ideas for entrepreneurial ventures that may help her remain challenged and focused. She thanked Dr Duffy’s general practitioner for her referral.
On 16 February 2011, Dr Duffy instituted this action.
On 7 March 2011, Google removed from the Google Australian website paragraphs relating to the first four Ripoff Report webpages.
On 13 April 2011, Dr Duffy saw Ms Freeman. She said that she was suing Google for defamatory allegations about psychic stalking in relation to her objections to an online service. Ms Freeman asked Dr Duffy why she had not mentioned the online service previously. Dr Duffy said that she had been too humiliated to mention it and thought it would go away. Dr Duffy did not return to see Ms Freeman until October 2012.
On or just before 9 October 2011, Dr Duffy created a blog website that referred to internet defamation.
On 21 November 2011, an article by Verity Edwards appeared in The Australian newspaper about this action. Dr Duffy was quoted in the article as saying:
"I pleaded with the website and then Google to remove it," Dr Duffy told The Australian.
"I started this action because I thought Google would remove it if I started proceedings. If I could have had it removed I would have moved on with my life."
In October 2012, Dr Duffy’s general practitioner referred her to Ms Freeman again. On 23 October 2012, Dr Duffy consulted Ms Freeman. She told Ms Freeman that she had been suing Google for not removing libelous material posted by other organisations. She was confident that she would be successful. She had been interviewed by The Australian. She had been close to suicide a few weeks ago.
On 13 November 2012, Dr Duffy saw Ms Freeman. She said that if the offending material was not removed, she believed that she would never work again. She said that she was anxious and fearful that she would run out of money before reaching the court decision. On 16 November 2012, Ms Freeman wrote to Dr Duffy’s general practitioner. She said that Dr Duffy was experiencing considerable stress from her legal case and once again showing symptoms of severe depression and stress as well as moderate anxiety. She said that Dr Duffy was showing some signs of neuro-vegetative disturbance but was extremely focused and positive about her preparations for winning her case.
Dr Duffy continued to see Ms Freeman fortnightly or monthly until June 2014. Thereafter, she saw Ms Freeman every two or three months up to November 2015.
Application for permission to amend
On 9 November 2015, Dr Duffy applied for permission to amend her statement of claim to claim aggravated damages by reason of four matters. I granted permission to amend in respect of failure to apologise and persistence with a plea of justification to the psychic stalker and persistent obsessive harassing imputations.
I refused permission to amend in respect of the remaining two matters. The first was persistence by Google in publishing the defamatory materials over the 12 months from January to December 2010. This was not a matter capable of giving rise to aggravated damages but was an inherent part of the conduct the subject of ordinary damages. I refused permission to amend in any event because of the lateness of the application and potential prejudice to Google because it may have conducted its case differently at the first trial if this plea of aggravated damages had been included.
The final matter the subject of the application to amend was a plea that Dr Duffy suffered aggravated damages by reason of publication between April 2014 and November 2015 of paragraphs relating to and hyperlinks leading to webpages containing the first and sixth Ripoff Report that had different URLs to those the subject of this action. In relation to the sixth Ripoff Report, I refused permission to amend because it had not been the subject of this action as explained in my reasons for judgment on liability. In relation to the first Ripoff Report (and the sixth Ripoff Report), any publication in 2014-2015 by reference to a different URL gives rise to a separate and independent cause of action to publication in 2010 by reference to its original URL. Subject to any time limitation issues, Dr Duffy is free to institute a separate action for publication in 2014-2015. In those circumstances, I doubted that the independent publication was capable of amounting to circumstances of aggravation. I refused permission to amend because it would raise a host of factual and evidentiary issues that ought to have been addressed in the first trial.
The second trial
Evidence adduced at the first trial was treated as evidence in the second trial.
Dr Duffy was represented by counsel at the second trial. Dr Duffy gave further evidence addressing the effect of the publications and the action upon her, her mental health and her employment.
Dr Duffy called her treating psychologist Robyn Freeman to give evidence about her consultations with Dr Duffy, her diagnosis and prognosis. Three reports by Ms Freeman were tendered as well as her case notes and reports to Dr Duffy’s general practitioners. She also gave oral evidence.
Dr Duffy tendered documents to prove publication by Google between April 2014 and November 2015 of paragraphs relating to and hyperlinks leading to the webpages containing the first and sixth Ripoff Reports that had different URLs to those the subject of this action. Dr Duffy contended that this amounted to continuing publication by Google of the defamatory material and ordinary damages could be assessed by reference to the combined effect of the original publication in 2010 and the continuing publication in 2014-2015. I rejected the tender for similar reasons to my earlier refusal of permission to amend the statement of claim to plead publication in 2014-2015 as circumstances of aggravation.
Google tendered an affidavit by Leon Chi, a software engineer in Google’s Ads-Keywords-Index team. Mr Chi gave evidence about Google’s Keyword Tool which largely confirmed the basis on which I made findings in my reasons for judgment on liability. In addition, he gave evidence that each time a searcher moves to a new page of search results, the Keyword Tool counts the move as a new search and each time a searcher returns to the search results after clicking on a hyperlink, the Keyword Tool counts the return as a new search.
Google called Dr Davis to give evidence about his two assessments of Dr Duffy, her diagnosis and its causes. Two reports by Dr Davis were tendered and he also gave oral evidence.
Economic loss
Dr Duffy pleaded that publication of the words alleged to be defamatory resulted in loss to her earning capacity and, had they not been published, she would have been able to obtain comparable or better employment than her former employment at the Department of Health.
Dr Duffy contends that Google’s publications of the defamatory words caused her to suffer a diminution of her earning capacity. She contends that this was caused in two different ways. First, a diminution in her earning capacity was caused by the defamatory words coming to the attention of potential employers in her field of health research. Secondly, the publications caused her mental harm by way of major depression which in turn prevented her from seeking or obtaining employment.
As a matter of principle, a loss of earning capacity productive of financial loss is a head of special damages recoverable in the tort of defamation.[2] General principles of causation and remoteness of loss apply in the same way as they apply to other torts. Thus, the approach to causation in defamation is that articulated in March v Stramare (E & MH) Pty Ltd.[3] The question is: was the publication of the defamatory material a cause of the loss of earning capacity productive of financial loss? This is to be assessed as a matter of common sense and involves an evaluative judgment rather than a mechanical application of a “but for” test.[4]
[2] Chakravarti v Advertiser Newspapers Limited [1998] HCA 37, 193 CLR 519 at [98]-[99] per Gaudron and Gummow JJ (with whom Brennan CJ and McHugh J agreed) and [179] per Kirby J.
[3] (1991) 171 CLR 506.
[4] March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 515-517 per Mason CJ (with whom Toohey and Gaudron JJ agreed) and 522-524 per Deane J (with whom Gaudron J agreed).
Reputational effect

Dr Duffy contends that it should be found that the defamatory publications in 2010 came to the attention of her prospective employers and had a detrimental effect on her prospects of obtaining employment in her field of health research.
Dr Duffy ceased employment with the Department of Health on 20 August 2010. She did not give evidence that in 2010, 2011 or 2012 she took any steps to monitor advertisements or other notifications of positions available, made any enquiries about prospective employment, made any approaches to prospective employers or made any applications for employment.
Dr Duffy gave evidence that in 2013 she made telephone calls to universities regarding research and teaching opportunities. She said that nothing came from these inquiries. She said that, after those telephone calls, she checked her Google Analytics data which indicated that the universities had searched her name.
Dr Duffy did not identify when in 2013 she made these inquiries. She did not identify the universities or departments the subject of her inquiries. She did not identify to whom she spoke. She did not identify the nature of her enquiry or the nature of the response to it. She did not identify what positions were discussed. She did not identify any positions that she saw advertised or otherwise learnt were available.
Dr Duffy did not give evidence that she made any further enquiries after the enquiries referred to in the previous paragraph.
Dr Duffy gave evidence that, after she received her redemption payment in August 2010, her mental health improved and she felt ready to work. She gave evidence that she believed that there was no utility in applying for jobs when any prospective employer would likely know of the defamatory material published on the Google websites.
Ms Freeman’s notes show that, after Dr Duffy settled her workers compensation claim and resigned her employment in August 2010, she told Ms Freeman that she wanted to take a rest and attend to personal matters and then travel overseas in April or May 2011. Dr Duffy told Ms Freeman that the payout she received would last for four or five years. When discussing her plans between August 2010 and April 2011, Dr Duffy did not suggest that her ambitions included returning to work in the health research field and the plans she discussed were quite different.
The redemption agreement Dr Duffy entered into with the Department of Health in August 2010 included a clause whereby she agreed not for the next three years to seek employment with any South Australian public sector agency, board or authority. It is not clear whether on its proper construction this clause extended to universities which are created and governed by State legislation.[5] It is not clear whether this clause would be enforceable as a reasonable restraint of trade. However, the objective enforceability or reach of the clause is irrelevant. What is relevant is that it is clear from Dr Duffy’s evidence that she at all times intended to comply with the clause. Given that she did not make any enquiries about employment in the health research field until 2013, I infer that she did not make any enquiries before the three year anniversary of the redemption agreement in August 2013.
[5] Flinders University of South Australia at 1966 (SA); University of Adelaide Act 1971 (SA); University of South Australia Act 1990 (SA).
In light of the statements Dr Duffy made to Ms Freeman about her plans and that the redemption payment would last for four to five years coupled with the existence of the three-year restraint clause and lack of any enquiries about employment in the health research field, I find that Dr Duffy decided in August 2010 not to work in the health research field for the next three years and that this decision was made independently of publication by Google of defamatory material in 2010. I find that when she made this decision she was not suffering from depression. I find that she maintained that decision until at least August 2013 and did so independently of the publication by Google of material in 2010.
My findings in the previous paragraph are reinforced by the fact that it would not have been a rational response to the publication by Google of the defamatory material in 2010 for Dr Duffy not to have made any enquiries about employment in the health research field if she had been interested in returning to such employment in the immediate future nor to have applied for any positions of which she became aware. There was no basis for her to consider that any prospective employer would necessarily decide on the basis of a Google search for her name not to entertain any possibility of employing her. I find that at least between August 2010 and mid-2012 Dr Duffy was not suffering from depression or any other psychiatric condition that would cause her not to make enquiries about employment in the health research field if she had been interested in returning to such employment.
It follows that Google’s publication in 2010 of the material I have found to be defamatory was not a cause of Dr Duffy’s not seeking employment in the health research field between August 2010 and August 2013.
In addition, Dr Duffy did not adduce any evidence to show objectively how a prospective employer would have reacted if she had made enquiries about or applications for employment. She did not call evidence from a prospective employer or from a personnel consultant. It is entirely speculative how a prospective employer would have reacted to an internet search of Dr Duffy’s name.
In her evidence, Dr Duffy referred to her Google Analytics data which she said indicated that in 2013 the universities of whom she made enquiries searched her name. Google Analytics is a software tool provided to a website operator to analyse characteristics of traffic to its website by reference to the keyword used by visitors to find the site or by reference to the source (eg Google, Yahoo, direct) and medium (eg organic, referral, none) used by the visitor to reach the site. Dr Duffy tendered two printouts of data produced by Google Analytics in respect of her own blog website. The printouts related to the period 1 October 2011 to 3 June 2015, one by reference to keyword and the other by reference to source/medium.[6] Dr Duffy did not explain in her evidence or her submissions how this data demonstrates that universities to whom she made enquiries searched her name at the time.
[6] Dr Duffy also tendered two printouts relating to the period 1 October 2011 to 1 September 2013, but did not refer to them in her witness statement as demonstrating searches by universities and I therefore put them aside.
Because the Google Analytics data spans over three and a half years, it is incapable of pinpointing when a search was undertaken. Various keywords were used by visitors who reached Dr Duffy’s blog site, the most frequent of which were variations of her name, but there is nothing in the identity of those keywords that demonstrates that the search was undertaken by a university. Similarly, the source and medium do not demonstrate that the search was undertaken by a university.
In her evidence, Dr Duffy made it clear that her concern since 2009 has been contemporaneous publication of defamatory material about her. For example, she said that her concern in 2013 was about prospective employers undertaking contemporaneous searches and finding defamatory material. She did not say that her concern in 2013 was about prospective employers having undertaken searches in 2010 and remembering the results.
In closing address, Dr Duffy invites me to find that prospective employers would have become aware in 2010 of the defamatory material about her and would have remembered it some years later if she had applied for a health research position. There is no evidentiary or other basis for me to make such a finding. No evidence was adduced about the number of government or non-government organisations who employ health researchers, how many personnel work in that field in each organisation, how much they know about other health researchers in South Australia or otherwise. My expectation is that few persons responsible for employing health researchers would have undertaken searches of Dr Duffy’s name in 2010. While Dr Duffy seeks to invoke the grapevine effect, there is no trunk from which the vines could shoot.
Ms Freeman gave evidence that in more recent times Dr Duffy has told her that she was concerned that she would never obtain employment because of defamatory material on the internet both ongoing and historical. In giving that evidence, Ms Freeman was merely narrating what she was told by Dr Duffy and not expressing her own expert opinion about the causation of Dr Duffy’s difficulties of obtaining employment (even if Ms Freeman had purported to express an opinion on this question, it would not be an opinion falling within her expertise). However, Dr Duffy herself did not give evidence that her concern was about historical as opposed to contemporaneous publication and the gist of her evidence was to the contrary.
If Dr Duffy in 2013 (or subsequently) was unable to seek or obtain employment in the health research field as a result of defamatory material on the internet, it would have been as a result of publication in 2013 (or subsequently) and not as a result of the historical publication in 2010 of the material that I have found to be defamatory.
Dr Duffy’s first contention about causation of loss fails.
Mental harm
Dr Duffy’s second contention is that the defamatory publications by Google in 2010 caused her personal injury being mental harm by way of major depression which in turn has prevented her from seeking or obtaining employment.
Ms Freeman gave evidence that Dr Duffy recovered from her depression by January 2010 and was not depressed throughout 2010. Ms Freeman reported to Dr Duffy’s general practitioner in January 2011 that she had emerged in very good spirits and was not depressed. Ms Freeman saw her one final time in April 2011 and thereafter neither Ms Freeman nor Dr Duffy considered that she needed to continue with psychotherapy. Dr Duffy did not return to see Ms Freeman over the next 18 months and only returned in October 2012 when she had suffered a relapse.
Ms Freeman expressed the opinion that throughout 2009 Dr Duffy was suffering from major depression. She expressed the opinion that between January 2010 and the second half of 2012, Dr Duffy was not suffering from depression (either major depression or dysthymia). She expressed the opinion that since October 2012 Dr Duffy has suffered from major depression. She expressed the opinion that Dr Duffy has been unable to work in the health research field since October 2012 because of her depression. She expressed the opinion that, if defamatory material on Google’s search engines is removed , Dr Duffy should be able to return to work in the health research field after 6 to 9 months, or at the most two years.
No evidence was adduced by Dr Duffy that she suffered from depression after 2009 (either major depression or dysthymia) until shortly before her return to Ms Freeman in October 2012. No evidence was adduced of any consultations with her general practitioner or any other healthcare professional between April 2011 and October 2012.
Dr Davis expressed the opinion that Dr Duffy has suffered from dysthymia all of her adult life but that it has waxed and waned in severity. He expressed the opinion that she suffered from major depression between 2006 and 2009 but she did not suffer from major depression from 2010 onwards. He expressed the opinion that in and after 2010 her mental health did not preclude her seeking or obtaining employment in the health research field.
I find that Dr Duffy had been suffering from major depression off and on between 2006 and 2009. I find that she suffered from major depression continuously from November 2008 to December 2009 primarily as a result of work related issues.
I find that Dr Duffy was not suffering from depression between the beginning of 2010 and the middle of 2012. I am not affirmatively satisfied that she suffered from dysthymia over that period given the evidence of Ms Freeman who saw her during 2010 and up to April 2011. If she was suffering from dysthymia over that period, it was limited to an underlying base level of adult life-long dysthymia in accordance with the opinion of Dr Davis and was not aggravated or increased by Google’s conduct in publishing the material I have found to be defamatory. I find that her mental health between the beginning of 2010 and the middle of 2012 did not preclude her from seeking or obtaining employment in the health research field over this period. I find that she had decided not to seek such employment for reasons unconnected with Google’s publication of the defamatory material in 2010 addressed above.
I find that Dr Duffy has been suffering from depression since shortly before October 2012. It is unnecessary to make a finding whether this has been dysthymia in accordance with the opinion of Dr Davis or major depression in accordance with the opinion of Ms Freeman. It is unnecessary to make a finding whether this has precluded her from seeking or obtaining employment in the health research field in accordance with the opinion of Ms Freeman or has not in accordance with the opinion of Dr Davis. This is because, to the extent that Dr Duffy’s depression (whether dysthymia or major depression) has been caused by the publication of defamatory material on the internet, it has been caused by publication in and since 2012 and not by the historical publication by Google of the defamatory material in 2010. There is no basis to find otherwise.
Dr Duffy’s second contention about causation of loss fails.
Litigation harm
Dr Duffy in closing address puts a third contention about causation of economic loss. She contends that she has an obsessive personality, she has devoted herself to the litigation against Google over the last three (or five) years and this has caused a diminution in her earning capacity either directly because it has prevented her from seeking or obtaining employment or indirectly because it has caused her to suffer depression which has in turn prevented her from seeking or obtaining employment.
Insofar as Dr Duffy relies on her devotion to the litigation directly preventing her seeking or obtaining employment (putting aside any depression suffered by her), it was a free choice that she made and it cannot be said as a matter of common sense that Google’s publication of the defamatory material in 2010 is a cause of her not being employed since 2012 (or 2010).
Insofar as Dr Duffy relies on her devotion to the litigation against Google causing her to suffer depression, this could only apply since mid-2012 when she became depressed. While I accept that Dr Duffy has an obsessive personality, it was her free choice to devote herself as completely as she did to the litigation to the exclusion of other matters and she made this choice when not depressed. The litigation alone did not cause the onset of her depression in mid-2002. The ongoing publication of defamatory material on the internet was the major cause. It is difficult to know if Dr Duffy would have become depressed in the absence of the litigation. While it may be that but for the litigation Dr Duffy would not have become depressed, any connection between the publication by Google in 2010 of the defamatory material and ultimate financial loss suffered by Dr Duffy from mid-2012 onwards as a result of not being employed is too tenuous to conclude that as a matter of common sense the former is a cause of the latter.
Dr Duffy’s third contention about causation of loss fails.
Combination
I have considered Dr Duffy’s three contentions in isolation. It is appropriate finally to consider them in combination. When combined, there remains no basis to find that Google’s publication in 2010 of the defamatory material is a cause of Dr Duffy’s economic loss.
Aggravated damages
Dr Duffy pleads that her damages have been aggravated by the failure of Google to apologise for its conduct and by Google’s attempt to justify the psychic stalker and persistent obsessive harassing imputations.
Aggravated damages in defamation are compensatory and not punitive and are awarded “to reflect conduct by the defendant which aggravates the injury and increases the harm done to the [plaintiff]”.[7]
[7] Carson v John Fairfax and Sons Limited(1993) 178 CLR 44 at 50 per Mason CJ, Deane, Dawson and Gaudron JJ.
Aggravated damages may be awarded for defamation when the defendant’s conduct of the defence (or other conduct at or after the publication) is lacking in bona fides, improper or unjustifiable.[8]
[8] Triggell v Pheeney(1951) 82 CLR 497 at 514 per Dixon, Williams, Webb and Kitto JJ; Coyne v Citizen Finance Limited(1991) 172 CLR 211 at 237 per Toohey J (with whom Dawson and McHugh JJ agreed).
Such conduct may include a failure to apologise[9] or persistence in a plea of justification,[10] but only if the defendant’s conduct in failing to apologise or persisting in the plea of justification is lacking in bona fides, improper or unjustifiable.[11]
[9] Triggell v Pheeney(1951) 82 CLR 497 at 514 per Dixon, Williams, Webb and Kitto JJ; Clark v Ainsworth(1996) 40 NSWLR 463 at 468 per Sheller JA (with whom Simos AJA agreed) and 471 per Abadee AJA (with whom Simos AJA agreed); Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [79]-[83] per Tobias and McColl JJA.
[10] Coyne v Citizen Finance Limited(1991) 172 CLR 211 at 237 per Toohey J (with whom Dawson and McHugh JJ agreed); Clark v Ainsworth(1996) 40 NSWLR 463 at 468 per Sheller JA (with whom Simos AJA agreed) and 471-474 per Abadee AJA (with whom Simos AJA agreed).
[11] Triggell v Pheeney(1951) 82 CLR 497 at 514 per Dixon, Williams, Webb and Kitto JJ; Coyne v Citizen Finance Limited(1991) 172 CLR 211 at 237 per Toohey J (with whom Dawson and McHugh JJ agreed); Clark v Ainsworth(1996) 40 NSWLR 463 at 468 per Sheller JA (with whom Simos AJA agreed) and 471-474 per Abadee AJA (with whom Simos AJA agreed).
Failure to apologise
Merely not to apologise is not positive or active conduct and cannot in itself be in bad faith, improper or unjustifiable. Something more is required. For example, if the original publication was made maliciously, a failure to apologise might be regarded as a continuation of the malice and hence lacking in bona fides, improper or unjustifiable.
Dr Duffy does not contend that Google’s lack of an apology was lacking in bona fides or was improper or unjustifiable, nor identify why it might be so characterised. There is no basis to so find.
Persistence in defence of justification
It is clearly established that merely pleading and pursuing a defence of justification is not in itself in bad faith, improper or unjustifiable. Something more is required. Typically that would be the manner in which the defence is pursued or pursuit of a completely unmeritorious defence.
Dr Duffy gave evidence that Google’s pursuit of the defence caused her distress but made it clear that she did not make any complaint about the conduct of Google’s lawyers in cross-examination. It is not submitted that the manner in which the defence was pursued demonstrated bad faith or improper or unjustifiable conduct.
Dr Duffy refers to the fact that Google did not call any witnesses in support of its justification defence and relied exclusively on documentary evidence of communications between her and various online psychics and other documentary evidence. She contends that Google should have known that this evidence could not justify the imputations and Google should not have raised the plea or persisted with it.
Dr Duffy’s contention is effectively that the justification defence was so manifestly unmeritorious that it was improper and unjustifiable for Google to advance it. Dr Duffy faces a high hurdle in making this contention. Many defences (and causes of action) are advanced at trial which fail but are not regarded as so manifestly meritorious that it was improper for the party to advance them. While Google’s justification defence in respect of the psychic stalking and persistent obsessive harassing imputations failed, it cannot be said that Google’s advancing of that defence was so unmeritorious that it was improper and unjustifiable so as to give rise to aggravated damages.
General damages
Approach

Section 32 of the Defamation Act 2005 (SA) provides:
32—Damages to bear rational relationship to harm
In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
Section 33 imposes a limit on damages for non-economic loss which is currently $376,500.[12]
[12] South Australian Government Gazette 18 June 2015 page 2880.
Damages are otherwise to be assessed under common law principles (subject to mitigation).
General damages in defamation address three overlapping aspects of compensation for harm: compensation for hurt to the plaintiff’s feelings and damage to the plaintiff’s reputation and compensation to vindicate the plaintiff’s reputation.[13]
[13] Carson v John Fairfax and Sons Limited(1993) 178 CLR 44 at 60 per Mason CJ, Deane, Dawson and Gaudron JJ.
In Uren v. John Fairfax and Sons Pty Ltd,[14] Windeyer J said:
When it is said that in an action for defamation damages are given for an injury to the plaintiff's reputation, what is meant? A man's reputation, his good name, the estimation in which he is held in the opinion of others, is not a possession of his as a chattel is. Damage to it cannot be measured as harm to a tangible thing is measured. Apart from special damages strictly so called and damages for a loss of clients or customers, money and reputation are not commensurables. 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.[15]
[14] (1966) 117 CLR 118.
[15] At 150.
In Broome v Cassell & Co,[16] Lord Hailsham said:
In actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge...[17]
and Lord Diplock divided heads of damage into (1) ordinary, (2) aggravated and (3) exemplary and said:
The harm caused to the plaintiff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him. A solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in the damages under head (1) itself even in cases in which there are no grounds for `aggravated damages' under head (2)...[18]
[16]   [1972] AC 1027.
[17]     At 1071.
[18]     At 1125.
In Carson v John Fairfax and Sons Limited Carson,[19] Mason CJ, Deane, Dawson and Gaudron JJ said:
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". 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. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. 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.[20]
and Brennan J said:
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. 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.
…
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, 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, 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.
…
Damages by way of vindication of reputation are not added to the damages assessed under other heads. 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 [in Uren v. John Fairfax and Sons Pty. Ltd.], 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". 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.[21]
[19]     (1993) 178 CLR 44.
[20]   At 60-61. (Footnotes omitted)
[21]   At 70-71, 72. (Footnotes omitted)
In Ali v Nationwide News Pty Ltd,[22] Tobias and McColl JJA said:
The harm caused to the plaintiff by the publication of the defamation often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him. Thus ‘[a] solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large part in the [general compensatory] damages’.[23]
[22] [2008] NSWCA 183.
[23] At [72]. See also Barrow v Bolt & Anor [2015] VSCA 107 at [55] per Kaye JA (with whom Ashley and McLeish JJA agreed).
The harm caused by the defamatory publication does not end at the time of publication but encompasses continuing harm including ongoing hurt feelings during and up to the conclusion of the litigation by the plaintiff seeking vindication.[24]
[24] Herald & Weekly Times Ltd v McGregor(1928) 41 CLR 254 at 263 per Knox CJ, Gavan Duffy and Starke JJ; Humphries v TWT Ltd (1993) 120 ALR 693 at 706 per Gallop, Davies and von Doussa JJ; Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [75]-[76] per Tobias and McColl JJA; Jeffrey and Curnow v Giles; Giles v Jeffrey and Curnow [2015] VSCA 70 at [26]-[27] per Warren CJ and Tate JA.
The general principle of assessing damages in tort that a defendant generally takes the plaintiff as it finds her applies to defamation. In Ali v Nationwide News Pty Ltd,[25] Tobias and McColl JJA said:
Finally under these general observations, we would observe that the defendant must take the plaintiff as it finds him or her: Humphries v TWT Ltd (1993) 113 FLR 402 at 418 - 419 per Miles CJ; Bashford v Information Australia [2000] NSWSC 665 at [42] per Davies AJ.
Humphries was reversed on appeal, but on the point that the damages Miles CJ awarded were inadequate: Humphries v TWT Ltd; (1993) 120 ALR 693. The Court (Gallop, Davies and von Doussa JJ) implicitly approved (at 706) Miles CJ’s statement that the particular sensitivities of the plaintiff were relevant to the award of damages. They concluded (at 706) that “the award made by the trial judge was so low that it failed to provide compensation appropriate to the injury to the appellant’s feelings as found by him, and failed to provide a sum that, even in conjunction with the correction and apology, was sufficient to nail the falsity of the imputations”.[26]
[25] [2008] NSWCA 183.
[26] At [77]-[78].
There is a body of intermediate appellate authority that hurt and distress suffered during the litigation and in particular the trial as a result of the litigation process,[27] a lack of apology[28] and persistence by the defendant with the defence of justification[29] can be taken into account as part of the harm caused to the plaintiff by the defamation. I am effectively bound by those decisions unless I think they are plainly wrong or contrary to High Court authority.[30]
[27] Humphries v TWT Ltd (1993) 120 ALR 693 at 706 per Gallop, Davies and von Doussa JJ.
[28] Clark v Ainsworth(1996) 40 NSWLR 463 at 468 per Sheller JA (with whom Simos AJA agreed) and 471-474 per Abadee AJA (with whom Simos AJA agreed); Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [75]-[76] per Tobias and McColl JJA; Jeffrey and Curnow v Giles; Giles v Jeffrey and Curnow [2015] VSCA 70 at [26]-[27] per Warren CJ and Tate JA.
[29] Clark v Ainsworth(1996) 40 NSWLR 463 at 468 per Sheller JA (with whom Simos AJA agreed) and 471-474 per Abadee AJA (with whom Amos AJA agreed); Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [75]-[76] per Tobias and McColl JJA; Jeffrey and Curnow v Giles; Giles v Jeffrey and Curnow [2015] VSCA 70 at [26][27] per Warren CJ and Tate JA.
[30] Farah Constructions Pty Ltd v Say-Dee Pty Ltd(2007) 230 CLR 89 at [135] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
In Herald and Weekly Times Limited v McGregor,[31] Knox CJ, Gavan Duffy and Starke JJ said:
In point of law, the learned trial Judge would have been right if he had instructed the jury that in assessing damages they were entitled to take into consideration the mode and extent of the publication, that the defamatory statement was never retracted, that no apology was ever offered to the respondent, and that the statement had been persisted in to the end; because all these circumstances might in the opinion of the jury increase the area of publication and the effect of the libel on those who had read it or who would thereafter read it, might extend its vitality and capability of causing injury to the plaintiff... [32]
[31] (1928) 41 CLR 254.
[32] At 263.
In Triggell v Pheeney,[33] Dixon, Williams, Webb and Kitto JJ said:
It is no doubt true that the jury cannot take into consideration as a ground for giving or increasing damages, whether exemplary or compensatory, conduct of the defendant which was not merely bona fide but was justifiable or proper. 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 for such a purpose. But the decision of the majority in Herald and Weekly Times v McGregor must mean that the conduct of the defence may be taken into consideration not only as evidencing malice at the time of publication or afterwards, as, for instance, in filing a plea, but also 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.[34]
[33] (1951) 82 CLR 497.
[34] At 514.
In Broome v Cassell & Co,[35] Lord Diplock said:
Again the harm done by the publication, for which damages are recoverable under head (1) does not come to an end when the publication is made. As Lord Atkins said in Ley v Hamilton “It is impossible to track the scandal, to know what quarters the poison may reach.” So long as its withdrawal is not communicated to all those whom it has reached it may continue to spread. I venture to think that this is the rationale of the undoubted rule that persistence by the defendant in a plea of justification or a repetition of the original libel by him at the trial can increase the damages. By doing so he prolongs the period in which the damage from the original publication continues to spread and by giving to it further publicity at the trial, as in Ley v Hamilton, extends the quarters that the poison reaches. The defendant's conduct between the date of publication and the conclusion of the trial may thus increase the damages under head (1). In this sense it may be said to “aggravate” the damages recoverable as, conversely, the publication of an apology may “mitigate” them. But this is not “aggravated damages” in the sense that the expression was used by Lord Devlin in head (2)...[36]
[35] [1972] AC 1027.
[36] At 1125-1126. (Citations omitted)
In Coyne v Citizen Finance Limited,[37] Toohey J (with whom Dawson and McHugh JJ agreed) said:
It is not the case that every unsuccessful defendant must face the prospect of damages being increased, simply because the defendant has elected to defend the action. It is for the jury, properly directed in the circumstances of the case, to determine whether the defendant's conduct lacks bona fides, or is improper or unjustifiable, in the sense referred to in Triggell v Pheeney. Nevertheless, persistence in a plea of justification may be relevant to the amount of compensatory damages awarded. An early withdrawal of the defamatory statement will ordinarily serve to reduce the harm suffered by the plaintiff; persistence in seeking to justify the statement may increase the scope of publication and the effect on those who read it: Herald and Weekly Times Ltd v McGregor. I take this to be the sense in which Lord Diplock suggested that `persistence by the defendant in a plea of justification or a repetition of the original libel by him at the trial can increase the damages': Broome v Cassell & Co. But compensation for continuing harm is a component of normal compensatory damages and, in the absence of at least one of the factors mentioned in Triggell v Pheeney, does not warrant an award of aggravated damages to the plaintiff.[38]
[37] (1991) 172 CLR 211.
[38] At 237-238.
Thus, the High Court has waxed, waned and waxed again on the question whether continuing harm is a component of ordinary compensatory damages. In Carson v John Fairfax and Sons Limited,[39] Mason CJ, Deane, Dawson and Gaudron JJ expressed “difficulty in understanding how the mere absence of an apology can aggravate damages”. This passage might be thought to suggest a reversion to the position adopted in Triggell. However, the Court did not suggest that Coyne, which had been decided only two years earlier, was wrongly decided and Dawson J, a member of the majority in Carson, had agreed with Toohey J in Coyne. Accordingly, the decisions of the intermediate courts of appeal are not contrary to binding High Court authority and, not being plainly wrong, should be followed. I turn to those decisions.
[39] (1993) 178 CLR 44.
In Humphries v TWT Ltd,[40] Gallop, Davies and von Doussa JJ said:
This is a case where, on the findings made by the trial judge, the initial hurt to the feelings of the applicant was considerable. He is a person of sensitivity who was outraged by the knowledge that a wholly false allegation of impropriety in the allocation of public funds had been made against him. Cause for the degree of hurt and outrage initially experienced was lessened to a considerable extent by the correction and apology, but not entirely removed. The failure of the respondent to offer any explanation for the error which was published allowed the hurt associated with the appellant's uncertainty as to the reason for the attack upon him to continue. Had the respondent in the hours which followed the publication of the material complained of given an explanation for the error, that may well have lessened the cause for ongoing hurt feelings to a substantial degree.
The injury to the appellant's feelings which attracts compensation includes the anxiety and uncertainty undergone in litigation, for it was reasonable that proceedings should be taken to vindicate his damaged reputation. There was cause for anxiety and uncertainty in this case as the respondent relied on defences that may have defeated the claim in part until trial. Whilst the appellant said in his evidence that his feelings were hurt by certain answers to interrogatories and the content of correspondence between the solicitors, like the trial judge we have difficulty understanding the basis for those feelings. But that is a matter of small moment; there must have been feelings of anxiety and uncertainty about the litigation which are properly to be reflected in compensating damages.[41]
[40] (1993) 120 ALR 693.
[41] At 706.
In Clark v Ainsworth,[42] Sheller JA (with whom Amos JA agreed) said:
The harm done by the publication for which normal compensatory damages are recoverable does not come to an end when the publication is made, even though no improper or unjustifiable conduct by the defendant may be demonstrated. In assessing normal compensatory damages the jury may properly take account of the extent of the hurt to the plaintiff's feelings which flows from the absence of apology. In Coyne (at 241), McHugh J said that Triggell v Pheeney is not to be taken as modifying in any way the principle that in a defamation action the jury are "entitled to take into consideration the mode and extent of the publication, that the defamatory statement was never retracted, that no apology was every offered to the [plaintiff], and that the statement had been persisted in to the end; because all these circumstances might in the opinion of the jury increase the area of publication and the effect of the libel on those who had read it or would thereafter read it, might extend its vitality and capability of causing injury to the plaintiff: Herald and Weekly Times Limited v McGregor (at 263)". In Carson (at 109), McHugh J said that the purpose of s 46 was to prevent the plaintiff from receiving damages which do not have a restorative effect. "Thus, damages to vindicate the plaintiff's reputation are damages for relevant harm, and so are damages for the failure to apologise. And, in some cases, aggravated compensatory damages which include an amount for punishment or deterrents are `damages recoverable in accordance with the common law ...... for relevant harm': (s46 (2))."
The passage in the majority judgment in Carson, upon which Levine J relied, … I do not understand them to have been over-ruling the principle stated in Herald and Weekly Times Limited v McGregor (at 263) and reiterated in Coyne v Citizen Finance Limited that the failure to apologise could be taken into account as something which extended the vitality and capability of the publication to cause injury to the plaintiff.[43]
[42] (1996) 40 NSWLR 463.
[43] At 468. See also per Abadee AJA at 471-472.

This approach has been followed in subsequent intermediate court of appeal decisions.[44]
[44] See for example Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [75]-[76] per Tobias and McColl JJA; Jeffrey and Curnow v Giles; Giles v Jeffrey and Curnow [2015] VSCA 70 at [26]-[27] per Warren CJ and Tate JA; Barrow v Bolt & Anor [2015] VSCA 107 at [55] per Kaye JA (with whom Ashley and McLeish JJA agreed).
Assessment
Dr Duffy gave evidence of the effect of the publication by Google of the defamatory material upon her. She said that she felt absolutely sick, mortified and humiliated when she became aware of the defamatory material and those feelings continued throughout 2010 and to the present day. She suffered extreme embarrassment and distress knowing that the defamatory material was on Google’s webpages and would be seen by anyone searching her name using Google, including personal and professional acquaintances. Her distress became worse after she notified Google in September 2009 and Google failed to remove it, as her situation felt hopeless. I accept this evidence, which was not in any event challenged in cross-examination.
The parties in their submissions addressed the imputations globally without distinguishing between the individual paragraphs on the Google website or between the two Ripoff Report webpages. Each of the Ripoff Report webpages contained the majority of the defamatory imputations and while the paragraphs containing hyperlinks to them contained only one or two, they linked to the Ripoff Report webpages which contained the majority of the defamatory imputations. While they would be serious in themselves, the paragraphs linking to the 123 People webpage are to a degree eclipsed by the Ripoff Report material.
In my reasons for judgment on liability, I referred to evidence adduced by Dr Duffy using Google’s Keyword Tool that showed that from September 2010 to August 2011 there were 210 average monthly searches for the phrase “Dr Janice Duffy”[45] and 480 average monthly searches for the phrase “Janice Duffy” (which would include the 210 searches for “Dr Janice Duffy”).[46] I found that there was no reason why the search number would have been materially different over the period from January to December 2010. I now have the benefit of evidence from Mr Chi who largely confirmed the basis on which I made those findings. In addition, Mr Chi gave evidence by his affidavit that each time a searcher moves to a new page of search results, the Keyword Tool counts the move as a new search and each time a searcher returns to the search results after clicking on a hyperlink, the Keyword Tool counts the return as a new search.[47] I therefore reassess the number of searches by Dr Duffy and others on the basis of all of the evidence now given. For clarity, I refer to a search as commonly understood as a “search” and a search as measured by Google’s Keyword Tool as a “KT click”.
[45]   There were 260 broad matches that included the words in reverse order.
[46]   There were 480 broad matches that included the words in any order.
[47]   He also said Google’s Keyword Tool counts a fresh search if the user refreshes the browser page but I find that this would be uncommon.
Google tendered at the first trial copies of searches by Dr Duffy for “Dr Janice Duffy” and “Janice Duffy” in 2010. These showed a total of 28 pages in seven searches for “Dr Janice Duffy” and 31 pages in seven searches for “Janice Duffy”. This is an average of approximately four KT clicks per search under either name. Dr Duffy said in evidence that on one occasion she searched more than 20 pages of search results. An allowance needs to be made for this and for occasions when Dr Duffy searched additional pages beyond those printed out or followed a hyperlink and returned to the search results page. Dr Duffy gave evidence that she lost some search results from mid-2010 and implicitly that she did not print out all search results. She estimated the frequency of her searches at once a fortnight or three weeks or a month.
I find that Dr Duffy’s searches for “Dr Janice Duffy” account for 250 KT clicks compared to 2,500 total KT clicks for “Dr Janice Duffy” in 2010. I find that Dr Duffy’s searches for “Dr Janice Duffy” and “Janice Duffy” account for 500 KT clicks compared to 5,700 total KT clicks for “Janice Duffy” in 2010. I find that searches by Dr Duffy’s and Google’s lawyers and others as a result of Dr Duffy’s notifications to Google and the institution of this action from September 2010 to August 2011 (being the period for which the Google Keyword Tool is available) account for an additional 100 KT clicks. This leaves the predominant searches having been undertaken by third parties.
Some external searchers will only have searched the first page of search results and their searches will be counted as one “KT click”. Others will have searched two or three pages of search results. While some will have searched more pages, this would be a relatively small percentage of all searchers. Most searchers will have clicked on a hyperlink and then returned to the search results, although some will not. I find that on average each search by an external searcher resulted in Google’s Keyword Tool recording four KT clicks. Subtracting Dr Duffy’s searches, searches by lawyers and others associated with Dr Duffy’s notifications and action, and allowing for multiple KT clicks per actual search results in approximately 500 searches in 2010 for Dr Janice Duffy and 700 searches in 2010 for “Janice Duffy” (excluding searches for Dr Janice Duffy”). Some of these searchers will have conducted multiple searches during 2010 and others will have only conducted a single search. However, each search is a separate publication even if conducted by the same person.
This is one of those cases referred to by Lord Diplock in Broome v Cassell & Co[48] and Tobias and McColl JJA in Ali v Nationwide News Pty Ltd[49] where the harm caused to the plaintiff by the publication of the defamation lies more in her own feelings, and what she thinks other people are thinking of her than in any actual change made manifest in their attitude towards her.[50] Apart from Ms Palumbo, Dr Duffy did not give evidence of any person mentioning the defamatory material to her. This does not mean that her reputation was not affected. Damages awarded must still include a component for reparation for the harm done to her reputation and must in any event be sufficient to signal to the public vindication of her reputation. However, it means that the assessment of the level of distress and hurt caused to Dr Duffy by the publication is particularly important in this case. That assessment should have regard to all relevant circumstances including the gravity of the defamation, the nature and extent of the publication, the duration of the publication, the standing and personal circumstances of Dr Duffy, the particular effect on Dr Duffy and the continuing effect of the defamation through the litigation process.
[48] [1972] AC 1027.
[49] [2008] NSWCA 183.
[50] ransposed from the quote extracted at [97] above.
As to the gravity of the defamation, the extracts from the three webpages and the two ripoffreport.com webpages contained imputations defamatory of Dr Duffy being variously that Dr Duffy:
1.stalks psychics;
2.harasses psychics by persistently and obsessively pursuing them;
3.spreads malicious lies and gossip about other people with a view to gaining sympathy for herself;
4.spreads lies about people dying;
5.spreads lies about people committing suicide;
6.has disseminated lies about psychics;
7.has engaged in criminal conduct;
8without their permission, fraudulently and/or maliciously accesses other peoples’ emails, stored electronic materials and/or electronic memberships;
9.threatens and manipulates people to further her own ends.
10.is an embarrassment to her profession;
11.is unable to function in day-to-day life;
14.has been laid off by the hospital where she works because she cannot function in day-to-day life.
These are serious and inherently damaging imputations. It is necessary to take into account the form which the publication took. As to paragraphs on the Google website itself, only snippets from external webpages were reproduced. While the literal meaning was still conveyed, a reader would to some extent discount the meaning conveyed if not clicking on the hyperlink and would to some extent suspend belief if clicking on the hyperlink until doing so. As to those readers who clicked on the hyperlink to the first or second Ripoff Report webpages, the reader would take into account the nature of reports and comments on the Ripoff Report being often the expression of subjective views and part of a debate between those holding opposing views. Nevertheless, the imputations remain serious and inherently damaging.
As to the nature and extent of publication, it lies somewhere between a mass media publication[51] and a targeted publication to individual recipients.[52] When the publication is by mass media, there are likely to be many more publishees but many will not know the plaintiff. When the publication is targeted as by email, there are likely to be much fewer publishees but they will probably know the plaintiff and it will probably be relevant to them. When considering reparation for harm to reputation, publication on an internet search engine has a blend of these characteristics: there will be fewer publishees but they will be self-selecting because they choose to search for the plaintiff’s name. In general, it may be expected that the damage to reputation will be greater when the defamatory material is published in the mass media than on an internet search engine When considering hurt to feelings however, publication on an internet search engine is more akin to mass media publication because the plaintiff does not know who the publishees are, and they potentially include anyone with access to the internet. In this sense, publication is directed to the public (whoever actually receives it) as opposed to publication by email which is directed to specific individuals.
[51] or example, Cornes v Ten Group Pty Ltd [2011] SASC 104, (2011) 114 SASR 1.
[52] or example, Tassone v Kirkham [2014] SADC 134.
The publication in the present case caused very substantial hurt to Dr Duffy and was calculated (not intended) to do so. Dr Duffy was exposed to the possibility that anyone who knew her or did not know her would search her name and become aware of the material. As noted above, the imputations were serious. The fact that the publication continued over twelve months exacerbated the hurt to feelings experienced by Dr Duffy and understandably led to feelings of helplessness and hopelessness. From Dr Duffy’s perspective (as opposed to Google’s intent), the fact that she had made her request in accordance with the strict requirements of Google, only to be told that Google could do nothing without the cooperation of the Ripoff Report’s webmaster added to her distress.
Dr Duffy was, due to her personality and history, particularly susceptible to hurt and distress. This is to be taken into account in assessing the actual hurt and distress caused by the defamatory publication because Google takes Dr Duffy as it found her.
Dr Duffy was obliged to prosecute the action to obtain vindication. As recognised by the Full Court of the Federal Court in Humphries v TWT Ltd,[53] this was a natural consequence of the defamation (a consequence that was avoidable or reducible only at the election of Google if it had chosen to admit liability or not allege justification), and the ordinary distress that would be suffered by a person in Dr Duffy’s position ought to be taken into account in assessing the hurt and distress caused by the defamatory publication.
[53] (1993) 120 ALR 693.
After delivery of my reasons for judgment on liability, Dr Duffy received posts on her blog website and tweets and comments were made about her on other blog websites, many of which were adverse. These were tendered and received de bene esse. Publicity on the delivery of reasons for judgment is an ordinary consequence of litigation for defamation and can be taken into account in assessing damages. On the other hand, Dr Duffy chose to participate in, if not seek out, publicity. She was interviewed by The Australian and her interview formed the backbone of Verity Edwards’ article in The Australian in November 2011. She operated her blog website from November 2011 to date. She was interviewed by The Project on Channel 10 shortly after delivery of my reasons for judgment. I receive the evidence of the communications but only limited weight should be given to the publicity arising from my reasons for judgment on liability.
Dr Duffy is only entitled to damages for the hurt and distress caused by the defamatory publications the subject of the action and found proved. She is not entitled to damages for the publication of the same material before 2010 nor for the publication of similar material under different URLs after 2010. She is not entitled to damages for other material published during 2010 not the subject of the action or my findings. She is not entitled to damages for the publication of similar material via searches using other search engines or directly on the Ripoff Report or 123 People websites.
Google contends that Dr Duffy would have suffered the same degree of hurt and distress if the first and second Ripoff Reports had never been published but the third to sixth Ripoff Reports had been published. This contention may largely be accepted. Dr Duffy was concerned about any publication of the Ripoff Reports and not just the first two. Dr Duffy was also concerned about all derivative websites and not just 123 People. However, it does not follow that no damages should be awarded against Google or that damages should be apportioned between the publications for which Google has been found liable (relating to the first and second Ripoff Report webpages and the 123 People webpage) and those for which it is not (relating to other webpages in respect of which Dr Duffy was not successful or did not sue).
In March v Stramare (E & MH) Pty Ltd,[54] the High Court (McHugh J dissenting) held that the “but for” test is not the test for causation at common law and is not even a necessary condition for causation where there are concurrent causes. Mason CJ (with whom Toohey and Gaudron JJ agreed) said:
The "but for" test gives rise to a well-known difficulty in cases where there are two or more acts or events which would each be sufficient to bring about the plaintiff's injury. The application of the test "gives the result, contrary to common sense, that neither is a cause". In truth, the application of the test proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff's injury. The cases demonstrate the lesson of experience, namely, that the test, applied as an exclusive criterion of causation, yields unacceptable results and that the results which it yields must be tempered by the making of value judgments and the infusion of policy consideration.[55]
and Deane J (with whom Gaudron J agreed) said:
Secondly, unqualified acceptance of the "but for" test as even a negative or exclusionary test of causation for the purposes of the law of negligence would lead to the absurd and unjust position that there was no "cause" of an injury in any case where there were present two independent and sufficient causes of the accident in which the injury was sustained.[56]
[54] (1991) 171 CLR 506.
[55] At 516. (Citations omitted)
[56] At 523.
In the circumstances of the present case, I assess damages by reference to the hurt and distress caused to Dr Duffy by the publication by Google of the defamatory material and no other material even though that other material considered in isolation might have caused hurt and distress of the same order.
Section 36(1) of the Defamation Act 2005 (SA) relevantly provides:
36—Factors in mitigation of damages
(1)Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that—
…
(c)the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or
(d)the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or
(e)the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter.
Section 36 modifies the common law. Paragraphs (c) and (e) of section 36(1) have no application. Paragraph (d) potentially has application because Dr Duffy has brought actions against Yahoo Inc in respect of the Yahoo search engine and Microsoft Inc in respect of the Bing search engine. Google tendered Dr Duffy’s statement of claim in each action. However, Google did not plead mitigation pursuant to section 36 and does not contend that damages should be reduced under section 36(1)(d). In any event, before such a defence could be entertained, evidence would have been required to enable an assessment whether Dr Duffy has a good claim against Yahoo and Microsoft. No such evidence was adduced by Google. Moreover, evidence would have been required to enable an assessment of the relative market shares of Google, Yahoo and Microsoft for searches in Australia. While Dr Duffy tendered evidence from which I could infer that Google was the predominant market leader between 2011 and 2015, that evidence does not relate to 2010 and is not sufficient to enable an apportionment such as would be required under section 36(1)(d).
Returning to common law principles, Google does not contend that Dr Duffy would have suffered the same degree of hurt and distress as a result of the conduct of Yahoo Inc and Microsoft Inc in respect of their search engines even if Google had not published the Ripoff Report-derived material. This would not have been an answer at common law to Dr Duffy’s damages claim for the reasons identified above.
Nevertheless, I accept Google’s contention that Dr Duffy is to be compensated only for loss caused by the publications in 2010 for which Google has been found liable and not the overall loss suffered by reason of all online publications over the entire period by all media.
I take into account the gravity of the imputations, the nature and extent of the publications, the duration of the publication over twelve months, the effects on Dr Duffy as described by her, the fact that she was particularly vulnerable to such effects, the ordinary distress caused by the prosecution of an action defended on justification and other grounds, the nature and content of the Ripoff Reports and Dr Duffy’s participation therein. The hurt and distress caused by the defamatory publications is a large factor in the overall damages to be awarded, but there must also be a component for reparation for the harm done to Dr Duffy’s reputation. In addition, the overall award must be sufficient to signal to the public vindication of her reputation. I must ensure that there is an appropriate and rational relationship between the harm sustained by Dr Duffy and the amount of damages awarded. I assess damages in the sum of $100,000.
Conclusion
I assess damages in the sum of $100,000. I will hear the parties as to interest and costs.