Haertsch v Channel Nine Pty Ltd

[2010] NSWSC 182

CITATION:	Haertsch v Channel Nine Pty Ltd & Ors [2010] NSWSC 182
HEARING DATE(S):	02.12.09, 03.12.09, 04.12.09
JUDGMENT DATE :	16 March 2010
JUDGMENT OF:	Nicholas J
DECISION:	Judgment for the plaintiff against the defendants in the sum of $267,919
CATCHWORDS:	DEFAMATION – assessment of damages – whether aggravated damages available – falsity of imputations – failure to apologise – persistence in defences of truth and contextual truth – defendants’ conduct of the trial – defendants’ conduct in editing the publication – whether loss of earnings available
LEGISLATION CITED:	Defamation Act 2005
CATEGORY:	Principal judgment
CASES CITED:	Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 Cassell & Co Ltd v Broome [1972] AC 1027 Clark v Ainsworth (1996) 40 NSWLR 463 Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211 Crampton v Nugawela (1996) 41 NSWLR 176 David Syme & Co Ltd v Mather [1977] VR 516 Greig v WIN Television NSW Pty Ltd [2009] NSWSC 877 Harbour Radio Pty Ltd v John Tingle [2001] NSWCA 194 Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254 Ley v Hamilton (1935) 153 LT 384 Palmer, Bruyn and Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 Reader’s Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500 Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729 Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 Ryan v Premachandran [2009] NSWSC 1186 State of New South Wales v Moss [2000] NSWCA 133 Selecta Homes and Building Co Pty Ltd v Advertiser-News Weekend Publishing Co Pty Ltd [2001] SASC 140 Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 Uren v Australian Consolidated Press Ltd [1969] 1 NSWR 745 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58
PARTIES:	Peter Anthony Haertsch - plaintiff TCN Channel Nine Pty Ltd – first defendant Nine Network Australia Pty Ltd – second defendant Kate Donnison - third defendant
FILE NUMBER(S):	SC 20353/08
COUNSEL:	S M Littlemore QC/S T Chrysanthou - plaintiff B R McClintock SC/M F Richardson - defendants
SOLICITORS:	Schrader Legal - plaintiff Johnson Winter & Slattery - defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

Nicholas J

16 March 2010

20353/08 Haertsch v Channel Nine Pty Ltd & Ors

JUDGMENT

1 His Honour: The plaintiff, Dr Peter Anthony Haertsch sues the defendants, TCN Channel Nine Pty Ltd (Channel 9), Nine Network Australia Pty Ltd (the Nine Network), and Kate Donnison for damages for defamation arising from the publication of a segment in the television programme “A Current Affair” on 1 August 2008 (the programme). The transcript of the publication is annexure A to these reasons.

2 The proceedings are under the Defamation Act 2005 (the Act). The hearing before the jury took place between 16 November and 2 December 2009. On 2 December 2009 the jury determined that the programme conveyed the following imputations which it found to be defamatory of the plaintiff:

(a) That the surgery he performed on Andrea Chia caused the plaintiff to be disgraced;

(b) That in performing surgery on Andrea Chia, the plaintiff demonstrated that he is unfit to practise as a surgeon;

(c) That the plaintiff, a plastic surgeon, was incompetent in performing surgery on Andrea Chia;

(d) That by his incompetence as a surgeon, the plaintiff had made the life of Andrea Chia a misery; and

(e) That the plaintiff was guilty of such serious misconduct as a surgeon as to warrant his being banned from practising surgery in Queensland.

3 The defendants failed to establish their defences of justification and contextual truth under s 25 and s 26 of the Act respectively. The contextual truth defence included pleading back the plaintiff’s imputations, and pleading that the programme conveyed the following additional imputations:

(i) That the plaintiff behaved reprehensibly as a surgeon by botching surgery on some patients, failing to provide adequate after care, and demonstrating a callous and uncaring attitude towards some patients;

(ii) That the plaintiff by amputating a woman’s breasts behaved reprehensibly as a surgeon;

(iii) That the plaintiff misconducted himself as a surgeon by using Pamela Noon a surgery broker, to provide aftercare to patients when she had no nursing qualifications and was unable to provide adequate aftercare; and

(iv) That the plaintiff was guilty of disgraceful conduct as a surgeon.

The jury determined that the programme did not convey these additional imputations.

4 The remaining issues, which are for me to determine, are the amount of damages that should be awarded to the plaintiff, and costs. The plaintiff claims general compensatory damages, including aggravated damages, special damages, interest, and an order for costs with interest.

Background

5 As the imputations found by the jury demonstrate, the programme made very serious criticisms of the plaintiff’s conduct and competence in performing surgery on Andrea Chia. As the jury rejected the defendants’ case that the imputations were substantially true, the court must assume that in finding for the plaintiff it made all the findings necessary to sustain its determination in his favour (Crampton v Nugawela (1996) 41 NSWLR 176, p 179). Accordingly, for the purpose of providing background facts sufficient to enable an understanding of the plaintiff’s case on damages, I have accepted his account of relevant events in which he was involved.

6 From about 1996 the plaintiff regularly carried out cosmetic surgery procedures for patients referred by the International Surgery Group (ISG), at Southport, Queensland. At relevant times the company was managed by Miss Pamela Noon. One such patient was Miss Andrea Chia who first consulted the plaintiff on 13 November 2005. She then sought a breast augmentation procedure to enlarge both breasts with silicone implants. She was then 23 years old.

7 On 5 January 2006 the plaintiff performed the procedure on Miss Chia at the Southport Surgicentre. The procedure, a bilateral sub-pectoral augmentation mammoplasty, went well, with nothing untoward. He advised her about likely post-operative development and recovery, and to contact ISG for appropriate treatment if she had any concerns.

8 On 12 January 2006 Miss Chia’s wounds began to discharge. She was referred by ISG to Dr Laurence Kelly who treated her on a number of occasions between 12 January and 27 January 2006 for discharge and wound dehiscence. She also consulted Dr Robert Boyle, a plastic surgeon, on 13 January 2006.

9 Between 11 January and 21 January 2006 the plaintiff was in the Philippines carrying out surgical procedures for the organisation, Interplast. He said that it was not until he was informed by Nurse Wilkinson of ISG on 31 January 2006 that he knew of Miss Chia’s complications. She told him that Miss Chia’s implants were about to come through the wounds. That day he saw photographs from Miss Wilkinson which verified her account. He then arranged to operate on Miss Chia on 3 February 2006 at Concord Hospital (the hospital).

10 The plaintiff attended Miss Chia on the morning of 3 February 2006 before operating. On examination, he found the wounds had broken down, but no evidence of infection. He said he explained to her two options for treatment. The first involved removal of the implants and replacement of them with new implants about four months later. The second option involved removal of the implants, cleaning the cavities and, after sterilisation, reinsertion of the implants. He said that after having stated his preference for the first, and having explained risks associated with the second, Miss Chia decided on the second option. Later that morning the plaintiff carried out the second option in which the implants were removed and reinserted. Thereafter the plaintiff saw her each day on his rounds until she was discharged from the hospital on 8 February 2006.

11 The plaintiff examined Miss Chia in Southport on 12 February and 12 March 2006. His opinion was that the outcome was excellent and soundly healed. Miss Chia was happy with it.

12 The plaintiff next examined Miss Chia in Southport on 24 September 2006. He observed one breast had swollen and was larger than the other. He found no evidence of infection or illness. He advised against any surgical intervention as it would result in loss of the implant. He advised her to see him in six months, but at any time if problems arose. He did not hear from her again.

13 On 5 December 2006 Miss Chia consulted Dr Daniel Fleming, a cosmetic surgeon. She presented with a swollen right breast with wound dehiscence imminent. On 6 December 2006 Dr Fleming removed the right breast implant. He inserted a new right implant on 12 April 2007. His last consultation with her was on 21 August 2007 when he found the wound had healed.

14 On 28 October 1999 the plaintiff carried out a double mastectomy procedure involving removal of both breasts upon a patient referred to as Anne. On the previous day he discussed with her the procedure and associated risks. She was 31 years old, single, and in good health. She said she wanted to be flat chested. The operation went well, and he was unaware of any complications. He did not refer her for psychiatric assessment as he considered he was able himself to assess whether or not she was fit to have the operation. He accepted he was wrong in failing to refer her for assessment or not giving her a cooling off period.

15 In about May 2000 Anne complained to the Health Rights Commission, Queensland that the plaintiff had performed the procedure without giving a cooling off period and for failing to refer her for psychiatric assessment. The complaint eventually led to proceedings before the Medical Board of Queensland for hearing on 5 March 2007. In about February 2007, on advice, the plaintiff pleaded guilty to a charge of unsatisfactory professional conduct for not allowing a sufficient cooling off period. At its hearing on 5 March 2007, the Medical Board found the plaintiff guilty of the charge, and imposed conditions on any future registration as a medical practitioner in Queensland. In February 2007 the plaintiff decided to withdraw his registration, and has not since applied for registration in Queensland.

The principles

16 In Ryan v Premachandran [2009] NSWSC 1186 I summarised the general principles as follows:

“114 By s 34 of the Act, the court, in determining the amount of damages to be awarded, is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

115 By s 35(1) the maximum amount for non-economic loss which may be awarded is $294,500.

116 By s 36 the court is to disregard the malice of the defendant at the time of the publication or at any other time except to the extent that the malice affects the harm sustained by the plaintiff.

117 By s 37 an award of exemplary or punitive damages is precluded.

118 The relevant principles were stated in Ali v Nationwide News Pty Ltd [2008] NSWCA 183 (pars 70-84) by Tobias JA and McColl JA. They referred to the following observations of Hayne J in Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 (par 60):

“The three purposes to be served by an award of damages for defamation are identified in the joint reasons in Carson v John Fairfax & Sons Ltd : (i) consolation for the personal distress and hurt caused to the appellant by the publication; (ii) reparation for harm done to the appellant’s personal, and in this case, professional reputation; and (iii) the vindication of the appellant’s reputation. As pointed out in Carson : the first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant; vindication looks to the attitudes of others.”

119 Hayne J, went on to point out (par 67) that assigning a money sum as sufficient to remedy personal distress, hurt and harm to reputation and to vindicate a plaintiff’s reputation translates losses which have no market value into amounts of money. He said:

“… But in neither defamation nor in other cases of non-pecuniary loss can any standard of evaluation be employed except one that is described in qualitative and therefore necessarily imprecise terms. The damages that may be awarded “are such as the jury may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man”.


120 In the assessment of compensatory damages for harm to reputation in a case such as this it is important to take into account the observations of Mahoney, ACJ in Crampton v Nugawela (1996) 41 NSWLR 176, p 193 that “… In some cases, a person’s reputation is, in a relevant sense, his whole life. The reputation of a clerk for financial honesty and of a solicitor for integrity are illustrations of this … the trustworthiness, actual or reputed of a professional colleague is a matter of a legitimate and ongoing interest”, and p 195 “In my opinion, the law should place a high value upon reputation and in particular upon the reputation of those whose work and life depend upon their honesty, integrity and judgment”. In Readers Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500, Brennan J held (p 507) that account may be taken of an especially adverse impact of the defamatory imputation upon the plaintiff’s reputation in the eyes of some group or class in the community.

121 With respect to aggravated damages it is important to keep in mind that any award of aggravated damages must be confined to what is truly compensation for the relevant harm to the plaintiff caused by the defendant’s conduct and must not include any element of punitive damages. Such conduct must be in some way unjustifiable, improper, or lacking in bona fides ( Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497).

122 In Ali (pars 79-85) courts are reminded that in awarding aggravated damages, the conduct of the defendant which will increase the harm caused by the publication of the libel, a failure to apologise, and the conduct of the defendant right up to the amount of verdict are all matters which may be taken into account.”

The plaintiff and his reputation

17 The plaintiff is a specialist plastic surgeon practising at Epping, New South Wales. He has been a medical practitioner for over 40 years. He is married with two adult children. He is the senior adult burns surgeon in Australasia, the head of the department of plastic and reconstructive surgery, and the administrator of the burns unit at the hospital. He is a visiting medical officer at Blacktown District Hospital, has operating rights at Canada Bay Private Hospital, and is an Associate Professor of the School of Surgery, University of Sydney. He is a member of professional organisations, including the Board of the New South Wales Health Clinical Advisory Group.

18 Over many years the plaintiff has undertaken voluntary work as a surgeon at home and overseas, particularly for Interplast. He has received numerous awards in appreciation of his service in countries such as Pakistan, Tanzania, and the Philippines. On 17 October 2003 he was awarded the Medal of the Order of Australia for management of the Bali bombing victims.

19 From about 1996 until August 2008, his practice included carrying out cosmetic surgery procedures for patients referred by ISG, at Southport, Queensland.

20 The following is a summary of the evidence relevant to the quality of the plaintiff’s reputation. It was unchallenged, and I accept it.

21 Dr David Gillett is a surgeon and head of surgical services at the hospital. He has known the plaintiff for over 50 years and spoke of his good reputation in medical circles as a very competent and progressive surgeon. Since August 2008 he noticed a change in the plaintiff’s personality in that he appeared withdrawn. The plaintiff had told him that he felt his reputation had been significantly damaged by the programme.

22 Dr David Pennington is the senior plastic surgeon at the Royal Prince Alfred Hospital. He has known the plaintiff for about 25 years. He spoke of his distinguished reputation in medical circles as a plastic surgeon in burns surgery, and gender reassignment surgery.

23 Dr Peter Maitz is a plastic surgeon who has known the plaintiff for about 10 years as a colleague at the hospital. He spoke of his high reputation as a competent surgeon. He saw the programme which, he said, depicted the plaintiff as incompetent. He heard people discuss the programme in hospital and social circles.

24 Mr Matthew Waugh has been a friend of the plaintiff since school days. He spoke of the plaintiff’s good reputation as a competent surgeon in the Chevalier College community and the Rotary community.

25 Dr A W Lewis is a plastic and reconstructive surgeon who has known the plaintiff for 43 years, and for a time as a colleague at the hospital. He said that the plaintiff has a reputation for surgical competence amongst his profession which has contributed to the high standing of the plastic surgery unit at the hospital.

26 Mr Daniel O’Connor is the chief executive of the Greater Western Area Health Service, Dubbo. He has known the plaintiff since appointment as General Manger of the hospital in 2004. He spoke of the plaintiff’s high reputation as a surgeon and for patient care amongst professional health carers and patients, and in government circles. He saw the programme. The plaintiff has told him that he was very hurt by the accusations in it.

27 Miss Christine Overend is a clinical nurse and runs the burns unit at the hospital. She has known the plaintiff for about 11 years as a colleague there. She spoke of his very good reputation as a competent surgeon among health professionals and patients. She observed that he appeared to be upset by the programme.

28 Miss Miranda Pye is a burns unit nurse at the hospital, who has worked with the plaintiff for about four years. She spoke of his high reputation as a burns surgeon and for gender reassignment work. She watched the programme and afterwards heard people who worked in the hospital discuss it. Since the programme she has observed that the plaintiff has become very withdrawn.

29 The above evidence established that, prior to publication of the programme, the plaintiff had a settled and high reputation in the wide medical profession as a very competent surgeon.

Impact of the programme and these proceedings

30 The plaintiff spoke of his feelings about the programme and the impact the conduct of the defendants had upon him. I accept his evidence, of which the following is a summary.

31 On 18 July 2008 the plaintiff was filmed for the programme by the first defendant’s camera crew in his rooms at Epping whilst being interviewed by the third defendant, then in Brisbane. She questioned him by a telephone connected to a loud speaker, and he responded by microphone. The transcript of this interview was Ex Q (the interview).

32 The programme was broadcast on 1 August 2008 to about two million viewers throughout the states and territories of Australia. The plaintiff did not see it then. He first learnt of it the next day whilst attending a school football match when a friend told him that he had been defamed, and should sue. During the next few days staff at the hospital spoke to him about the programme.

33 On 4 August 2008 the plaintiff was in the Eastwood Hotel. He saw two women in conversation, and heard one say: “There’s that rogue doctor who was on television the other night”. The remark was, and remains, extremely hurtful to him.

34 He first saw the programme a few days after its publication. His reaction was of humiliation, deep hurt, embarrassment, and anger. His sense of anger continues.

35 He felt that the programme had been unfairly edited in such a way as to deliberately distort and misrepresent the answers given in the interview of 18 July 2008. The effect of his evidence was that he felt deceived and used by the defendants because of their use of statements out of context, of incomplete statements, and by the omission of answers, information, or images which may have given the viewers a favourable impression of him. His evidence included (T p 108, l 25 – p 109, l 25):

“Q. Mr Haertsch, what was your reaction to the way your interview was edited?
A. My reaction was that I felt one of deception.

Q. Thank you. Did that make you angry or sad or what?
A. It made me very angry, especially that I made a point not only in the interview but in my request - when I was asked for a request I said I would quite happily deal with this provided it is balanced, and they even said things I'd denied. I was asked - they said to me, "Doctor, is it true that you've been banned in Queensland?" I said, "That is not true." And the girl said something like, "Well, I have something here in front of me, documents which say you have been banned." And I think my answer is, "That is an absolute fabrication.”

Q. And when you heard her say on the program and saw on the program that you had been banned in Queensland, your having twice denied it to her, how did you react to that in particular?
A. I was gutted.

Q. What did you think when you saw yourself depicted in black and white, moving in slow motion and grinning while they were talking about you being the surgeon who had scarred this girl for life?
A. I can't - it just revisits all those things that hurt but it was a - I was being depicted as almost like Dr Death, something like that. It was just appalling.

Q. Thank you.
A. Just felt let down. And I thought, you know, "Why me, after all the things I've done?" I believe I have a good name, I believe I have a reputation as a doctor who cares. "Why did they do this to me?"

Q. That was your feeling?
A. That was my feeling.”

36 I find the plaintiff’s reaction was entirely justified, and fully supported by a comparison of the record of his answers in the transcript of the interview (Ex Q) with the statements attributed to him in the transcript of the programme (Ex A). The programme has affected his wellbeing. He has become introverted, lost weight, does not sleep well, and is generally somewhat down. He has performed one cosmetic operation since the broadcast, and fears that it may impact adversely on his professional life, and could ruin him.

37 Dr Gillett, Miss Overend and Miss Pye spoke of their observations of the plaintiff’s reaction to the programme to the effect that it caused him to become withdrawn, upset, and depressed. The plaintiff told Dr Gillett and Mr O’Connor that he was hurt by the programme.

38 The plaintiff believed that the programme would cause viewers to think the less of him as a surgeon, and was distressed by the false allegation that he had botched the surgery on Miss Chia.

39 By letter dated 8 August 2008 to the defendants, the plaintiff’s solicitors complained that the programme conveyed several defamatory imputations concerning his conduct and competence as a surgeon. It included:

“The defamatory publication cannot be justified: our client has never been struck off the Queensland (or any) roll of medical practitioners; and your program’s editing of the two hours of interview to which he submitted down to a few seconds was unethical, tendentious, and calculated to create an entirely false impression.”

The defendants were requested to broadcast a retraction and apology, to pay the plaintiff’s costs, and to pay compensation for the hurt and injury caused by the programme, failing which proceedings would be commenced without further notice. They did not do so.

40 The plaintiff was hurt by the failure to apologise. He asserted that the imputations were false, and felt that the defences of truth, including an allegation of reprehensible conduct, were an appalling smear, and that the litigation was a hurtful process.

41 In re-examination the plaintiff told of his reaction to aspects of the defendants’ conduct in these proceedings. He said he was humiliated and very angry by assertions put to him in cross-examination by the defendants’ senior counsel that he had lied in denying he knew by 24 September 2006 that Miss Chia’s breasts were infected, and in asserting, on four occasions during the interview, that the implants were too big whilst the true explanation for the wounds was infection. He had a similar reaction to the suggestions in cross-examination that he had destroyed the photographs of Miss Chia in order to conceal that he knew her breasts were infected, and also that he had rushed into the operation on Anne for personal profit. He also said he was angered upon being informed that at a pre-trial hearing on 9 November 2009 the defendants’ senior counsel referred to Ms Noon as his henchwoman.

Aggravated damages

42 The plaintiff claims aggravated damages for the following:

(1) the plaintiff’s knowledge of the falsity of the imputations;

(2) the defendants’ failure to apologise;

(3) the defendants’ conduct of the litigation; and

(4) the defendants’ conduct in omitting from the programme as published parts of the interview with the third defendant in which she was told that the allegations made were false, and its conduct in editing the interview unfairly.

43 As to (1), the falsity of the imputations entitles the plaintiff to an award of aggravated compensatory damages (Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58, p 75; Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729, p 738). He was sharply aware of their falsity which manifestly aggravated their sting.

44 As to (2), in my opinion the failure to apologise in the circumstances of this case is not a matter of aggravation, but a factor to be taken into account as relevant to normal compensatory damages in that it contributed to the plaintiff’s hurt by keeping alive the effect of the publication. In Clark v Ainsworth (1996) 40 NSWLR 463, Sheller JA pointed out (p 469):

“… the distinction between a defendant’s failure to apologise as a factor in a claim for aggravated damages, which would require the plaintiff to particularise and prove that the failure involved or was part of a course of unjustifiable or improper conduct by the defendant, and the failure to apologise as contributing to the plaintiff’s hurt caused by the persistence in and continued spread of the matter published.”

45 In this case the demand for the apology was made on 8 August 2008. To the statement of claim filed 20 August 2008, amended on 13 October 2008, was filed the defence on 21 November 2008 in which defences of truth and contextual truth were pleaded. I infer that the explanation for not publishing an apology was that the defendants proposed to defend the publication on grounds that it did not convey the imputations alleged, and that the imputations were true. As the plaintiff did not establish that the failure to apologise was improper or unjustifiable, his claim on this ground is rejected.

46 As to ground (3) regarding the defendants’ conduct of the litigation until the end of the hearing, the plaintiff submitted that the following matters justified an award of aggravated damages:

(i) reliance on defences of truth and contextual truth throughout;

(ii) pleaded denials of publication, the imputations, and damages, as pleaded in pars 4, 5, and 6 respectively in the further amended statement of claim. During his final address to the jury, the defendants’ senior counsel accepted that imputations (c), (d), and (e) were conveyed and, if found, that all imputations were defamatory;

(iii) the issuing of over 30 subpoenae to bodies such as hospitals, insurers, and regulatory bodies, and the service of over 15 expert reports which, ultimately, were not relied on;

(iv) the pleading, and abandonment shortly before trial, of particulars of justification concerning former patients Corbell, Collings, Minehan, and Manning;

(v) the failure to inform plaintiff’s counsel prior to Dr Fleming being called to give evidence that his report and evidence in relation to the patient Anne would not be relied on;

(vi) the making of false and offensive allegations about the plaintiff in court during the trial. These were the assertions of lying put to the plaintiff in cross-examination, and the other matters referred to in par 41 above; and

(vii) the defendants’ submissions to the court on 1 December 2009 that the plaintiff had lied.

47 In deciding this component of the plaintiff’s claim for aggravated damages it is to be kept in mind that normal compensatory damages will include a component for continuing harm occasioned by, for example, the defendants’ persistence in a plea of justification which has the effect of prolonging, or keeping alive, the effects of the injury caused by the publication. The authorities referred to below establish that a defendant’s conduct in defending a claim and the conduct of its case at the trial cannot be held to aggravate the harm unless it is shown that, in the circumstances, it was not bona fide, or was unjustifiable or improper. In David Syme & Co Ltd v Mather [1977] VR 516, Lush J said (p 526):

“… one is entitled to conclude that aggravated compensatory damages may be awarded in defamation if the defendant's conduct aggravates the subjective hurt to the plaintiff. They cannot be awarded merely for reasons of indignation felt by the jury, but only if the evidence points to the conclusion that the blow to the plaintiff's pride, however it may be called, has been or must have been worsened by what was done. Further, if these requirements are satisfied, there will remain some areas in which the defendant may be able to justify what he has done and escape the payment of increased damages.”

48 In Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211 Toohey J said (p 237):

“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 …”

and (p 238):

“… 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.”

to which McHugh J, in a separate judgment, added (p 241):

“Triggell v Pheeney (1951) 82 CLR 497 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 ever 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 who would thereafter read it, might extend its vitality and capability of causing injury to the plaintiff”: The Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254, at 263.”

49 With respect to counsel’s conduct, forceful advocacy within appropriate limits, of itself, is not a matter of aggravation (Harbour Radio Pty Ltd v John Tingle [2001] NSWCA 194, par 26). To justify aggravation the misconduct of counsel must be grave and weighty (Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at p 368).

50 In Rigby Walsh JA said (p 740):

“I think the question is not whether what was done was “legitimate”, in the sense of not infringing either the rules of evidence or the ethical standards of advocacy. The question is rather whether, in the end and in all the circumstances of the case as found by the jury, the conduct of the case was capable of being regarded by them as not “bona fide” or not “justifiable” on the part of the appellant, in its resistance to the claim of the respondent. This does not mean that, if a particular line of defence is taken but is, in the end, rejected by the jury, it is always within the province of the jury to increase the damages for that reason. But a line of attack on a plaintiff may be followed out in such a way and to such a degree that it may in the end be open to a jury, upon finding that in fact it had no substance, to regard it as not being justifiable as between the parties, and as increasing the hurt done to the plaintiff.”

51 Similarly, for a plaintiff to establish a claim for aggravated damages arising from matters pleaded in the defence it is necessary to show not only that the pleading was improper or unjustifiable, but also that it increased the hurt to the plaintiff’s pride. In David Syme Kaye J said (p 535):

“The bona fide use by a defendant of court procedure in the conduct of litigation for the purpose of defending a claim made against him ought not to be exploited by a plaintiff for the purpose of enhancing the damages to which he might be entitled …
A false plea, being a defence raised with reckless indifference to its truth or falsity, however, is a proper circumstance to be considered in assessing damages because it might revive the libel and extend its tendency to cause injury to the plaintiff: The Herald and Weekly Times Ltd v McGregor (1928), 41 C.L.R. 254, at pp. 262-3; (1928), 34 A.L.R. 377, at p. 384. But a bona fide defence, raised properly or justifiably in the circumstances of the case as known to the defendant and evidence led by him in support of it, cannot be taken into account in assessing damages: Triggell v Pheeney (1951), 82 C.L.R. 497, at p. 514.”

52 Where there are no circumstances connected with the defences as pleaded, whether negative pleas or positive assertions, which show the pleas were not legitimately made for the purposes of the defendant’s protection the claim must fail. It will also be necessary to show that the contents of the defence were capable of causing the plaintiff additional grievance or annoyance (David Syme p 536, 537).

53 Finally, a concise summary of the principles as to the basis upon which a plaintiff in an action for defamation is entitled to aggravated damages by reason of the defendant’s conduct was provided by Hunt J in Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474. His Honour said (p 497):

“To be taken into account in aggravation, the defendant's conduct never had to be malicious (as was recently confirmed in Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, at pp 250, 265). But it must be conduct which is in some way unjustifiable, improper or lacking in bona fides notwithstanding that the conduct may cause distress to the plaintiff: Uren v Australian Consolidated Press Ltd (1965) 66 SR (NSW) 271, at p 302; 83 WN (Pt 2) 229, at p 258; Rigby v Associated Newspapers Ltd (No 2) [1969] 1 NSWR 729, at pp 739, 740; David Syme & Co Ltd v Mather [1977] VR 516, at pp 530, 535. The court in each of these three cases was considering conduct relevant to an award of aggravated not punitive damages. Each relied upon the limitations imposed upon the type of conduct which could be taken into account for that purpose as laid down by the High Court in Triggell v Pheeney (1951) 82 CLR 497, at p 514. It is clear that in each case the court proceeded with a proper appreciation of the distinction between compensatory and punitive damages. The relevant limitations imposed by the High Court in Triggell v Pheeney must therefore have been recognized as being appropriate to aggravated compensatory damages properly so understood. It is true that each of the three cases was concerned with the conduct of the defendant of the litigation based upon the publication of the matter complained of. But there is no reason in logic or principle why the defendant's conduct of the litigation should be treated any differently to his conduct in the publication itself or otherwise outside the litigation …”

54 With regard to the authorities I deal in turn with the components of the claim in respect of the conduct of the litigation.

(i) In my opinion, it has not been established that the continued persistence in the defence of truth and contextual truth was improper or unjustified. The issues as to whether the programme conveyed the plaintiff’s imputations and the contextual imputations, and whether the imputations found were matters of substantial truth were left to the jury to decide. In doing so, it was accepted that the defendants had mounted an arguable case that all of the imputations as found were substantially true. Under the Act it is for the jury to decide whether any defence has been established, and for the judge to determine the amount of damages. Thus I find it difficult to recognise that before the judge on the issue of damages it is open to a plaintiff to contend that the defendants’ conduct in maintaining a defence was unjustified or improper by reason of the lack of evidentiary support having earlier accepted there was sufficient evidence to entitle a defendant to have the defence issues decided by the jury. The jury’s rejection of the defences in this case provides no basis for a finding that the defendants’ conduct in maintaining them renders the defendants liable for increased damages. It is, however, a factor relevant to normal compensatory damages.

(ii) The pleadings of which the plaintiff complains are pars 4, 5 and 6 of the amended defence to the further amended statement of claim. Their combined effect is to not admit publication of the programme on the occasion and, to the extent alleged, to deny its capacity to convey the imputations, and generally the claim for relief. In my opinion there was no basis for a finding that the pleading was not made legitimately in the interests of the defendants. There was nothing improper or unjustified in putting the plaintiff to proof of his claim. There was no evidence capable of establishing that these negative defences probably caused the plaintiff additional hurt. In my opinion these pleadings should not be taken into account in aggravation of damages.

(iii) As to the defendants’ conduct in issuing numerous subpoenae and serving experts’ reports ultimately not relied upon, there was no evidence to support a finding it lacked bona fides, or was unjustified or improper. Absent evidence otherwise, I infer these matters were undertaken as integral to the litigation. I would assume that the defendants may be liable for any costs incurred by the plaintiff in respect of them. In my opinion this conduct is not a matter of aggravation.

(iv) As to the conduct in pleading and, shortly before trial, abandoning, particulars of justification concerning former patients Corbell, Collings, Minehan and Manning, I am unpersuaded it is of the quality for aggravation. The pleadings of the parties were amended on several occasions since the statement of claim was filed on 20 August 2008. The particulars concerning patients Collings, Manning and Minehan were included in the defence to the further amended statement of claim filed 22 October 2009. The amended defence to the further amended statement of claim filed 3 November 2009 did not include the particulars concerning patients Collings, Manning and Minehan. The case referable to Mr Corbell was abandoned at the trial. There is no basis for a finding that the pleading and abandonment of these particulars were not legitimately made for the purposes of the trial. Furthermore, I am unable to find that the steps taken by the defendants caused, or were likely to cause, additional hurt to the plaintiff. In my view, these matters were part and parcel of the defendants’ conduct of the proceedings relevant to normal compensatory damages.

(v) The claim for the failure to inform plaintiff’s counsel prior to Dr Fleming being called to give evidence that his report and evidence in relation to the patient Anne would not be relied on should be rejected as a component for aggravation. It smacks only of indignation on the part of plaintiff’s counsel.

(vi) The conduct of the defendants’ senior counsel during the trial for which aggravation is claimed is detailed in par 41 above. In these proceedings the veracity of the plaintiff was vigorously challenged on several matters. With the exception of the assertion in cross-examination to the effect that the plaintiff destroyed the photographs of Miss Chia to conceal that he knew her breasts were infected prior to 31 January 2006, and that he had rushed into the operation on Anne for personal profit, in my opinion the conduct complained of fell short of what is necessary to establish a claim for aggravated damages. Although I accept that the plaintiff was hurt by the assertions I am not persuaded that the conduct in making them was unjustified having regard to the issues and the evidence available to support the cross-examination. The advocacy was forceful and within appropriate limits in the circumstances ( Harbour Radio par 26).

However, in my opinion, the line was crossed in making the assertions about the photographs, and about the patient Anne in that each was without support, gratuitous, and calculated to insult.

The assertion about the photographs sprang from the plaintiff’s evidence in chief (T p 66) that on 31 January 2006 he received from ISG by either email or facsimile photographs showing Miss Chia’s wounds. In cross-examination he said he was unable to say what actually happened to the photographs (T p 180), and upon receiving them he immediately arranged for surgery on 3 February 2006. He denied Miss Noon had told him of the dehiscence on 24 January 2006. In this context, the cross-examination proceeded (T p 253, l 46):
“Q. I see. Doctor, I asked you yesterday about the photographs that you said you received from Pamela Noon and you indicated that you no longer had those photographs and perhaps may have screwed them up and thrown them away. That's right, isn't it?
A. Yes.”
and (T p 254, l 27 – T p 255, l 7)
“Q. … What I want to suggest to you, Doctor, is that you in fact deliberately destroyed the photographs that you received of Andrea Chia?
A. That is absolutely--

LITTLEMORE: Your Honour, my friend can only put a question like that on instructions.

HIS HONOUR: Well, we don't know what his instructions are. I would assume, Mr Littlemore, that that is the case.

LITTLEMORE: Yes.

HIS HONOUR: I can't go behind that. Nor, with respect, can you. Next question?

McCLINTOCK

Q. Doctor, the reason why you destroyed those photographs is that you know and you know full well that they reveal with crystal clarity that Andrea Chia was suffering from a serious infection in her breast pockets and you wanted to cover that up--

LITTLEMORE: I object to the question. There is no evidence that he destroyed the photographs.

McCLINTOCK: Yes, there is.

Q. That's right, isn't it, Doctor?
A. A photograph would not show me evidence of infection.”
In re-examination the plaintiff said he was angered by the allegation and found it repugnant. Nevertheless, in closing submissions, senior counsel put (T p 755, l 35 – l 46):
“At that point there is something very puzzling about the evidence in this case. The plaintiff has not produced any email or any document from Pamela Noon. He said in one point that he may have just used the word "scrunched up" or "crumpled up" or whatever and thrown them away or something like that. But there was an email and it did contain the photographs and as you know about emails it would have had the date that it was sent and received on it. Where has it gone? Why hasn't it been produced by the plaintiff? Why as it is open to you to infer as indeed he said to you he destroyed it. Why? Why? A lot of this small but important issue in this case could be very easily resolved, this is when he found out, if he had kept the document, that document he received from Pamela Noon. Why didn't he? You can assume when people destroy documents that they are doing so to cover up what they show.”
With respect to Anne, the relevant cross-examination was (T p 138, l 42 – T p 139, l 4):

“Q. Before I leave Anne though, you don't need the notes for this, what did you charge her for cutting her breasts off?
A. I didn't charge her anything.

Q. Well, what was she paying, what did she pay that ended up in your pocket for her breast surgery?

LITTLEMORE: I object.

HIS HONOUR: What is the relevance of that.

McCLINTOCK: I won't press it, your Honour.”
Unsurprisingly, the plaintiff was angered and upset by these propositions. They are properly matters of aggravation.

(vi) The claim in respect of the reference to Miss Noon during the pre-trial hearing on 9 November 2009 must be rejected as de minimis. In my opinion, the comment was at most flippant, but not so grave and weighty as to warrant a finding that the advocate’s conduct was improper or unjustified. With respect to the defendants’ submissions to the court on 1 December 2009 that the plaintiff had lied, the claim must also be rejected. Given that the plaintiff’s credit was legitimately and vigorously challenged during the trial, it cannot be said that in making the submissions complained of defendants’ senior counsel had improperly exceeded his duty.

55 As to ground (4) the claim is based on the defendants’ conduct in the composition, editing, and presentation of the programme, including the omission of matter from the plaintiff’s interview on 18 July 2008 with the third defendant being matter favourable to him and/or which contradicted the allegations published about him.

56 I have earlier referred to the plaintiff’s reaction to these matters (pars 34, 35, 36). The defendants gave no evidence in justification of the conduct complained of.

57 As Ex Q shows, the plaintiff provided the third defendant with much information in response to questions concerning, inter alia, the operation on Miss Chia, and his treatment of her complications, his relationship with Miss Noon and ISG, and the outcome of proceedings before the Medical Board of Queensland. As Ex A shows, the plaintiff’s utterances included in the programme were taken from Ex Q. An analysis of each transcript establishes that not only were the published statements of the plaintiff taken out of context, but his version of events was ignored. It is self-evident, and I find, that the section of material taken from the interview for inclusion in the programme and the omission of material from the interview which qualified or provided context for his statements, were deliberate, and for the purpose of composing the programme so as to discredit the plaintiff’s competence as a surgeon, his fitness to practise, and his personal integrity. I am satisfied that in crafting the programme as they did, the defendants proceeded in the knowledge that it would be seriously defamatory of him and, on the material available, that the allegations about him were false. As examples, it is sufficient for present purposes to refer only to the material from the interview about Miss Noon, and the Medical Board.

58 In the interview the plaintiff stated he was not aware that Miss Noon provided any medical assistance to Miss Chia. He said (p 5):

“Well, Pamela is not medically trained, and Pamela would only do as I have asked her to do and that is, in the event of there being some issue, have asked her to see the general practitioner and I believe in fact happened [sic].”

and (p 12):

“I am not aware, I am not aware of what Pamela did in terms of her wounds, but I can tell you quite categorically that I have told Pamela on many occasions she is not a medical person, and she is not in a position to be giving medical advice; and I think she understands that.”

He also said (p 13) he knew nothing about the way she ran her business.

59 Nevertheless, in support of the imputations of unfitness and incompetence, the programme implied in clear terms that the plaintiff had failed Miss Chia in leaving her in Miss Noon’s hands.

60 As for the outcome of the Queensland Medical Board proceedings, in the interview the plaintiff unequivocally stated (p 14, 15) that it was false to assert that he had been deregistered. He explained the actual finding of the Medical Board and the circumstances in which he withdrew his registration in Queensland. He said that at the time he operated on Miss Chia he was a registered medical practitioner in Queensland and New South Wales, and remains registered in New South Wales.

61 In the teeth of this information the programme was so concocted that it conveyed imputation (a) to the effect that he was disgraced, and imputation (e) to the effect that he had been, or deserved to be, banned from practising surgery in Queensland. The third defendant spoke of him (par 9) as the “… disgraced plastic surgeon”, and (par 36) as “… the same plastic surgeon who was banned from operating in the State of Queensland after the removal of another woman’s breasts”.

62 Taken overall, I find that the plaintiff’s claim on this ground is entirely justified. His reaction to this piece of gutter journalism would surprise nobody. The defendants’ conduct manifestly lacked bona fides, was improper and unjustified in the circumstances. It attracts an award of aggravated damages.

Economic loss

63 After abandoning reliance on the expert report of Furzer Crestani Services, chartered accountants, (Ex AQ), the plaintiff’s claim became one for damages for lost cosmetic procedures for patients referred by ISG on the ground that the broadcast of the programme caused the cessation of those referrals.

64 It was put that the plaintiff had carried out those procedures over two days each month at an average fee of about $2,500 for each procedure, but since the broadcast there have been no referrals. His claim is for compensation for what he has lost, and what he will lose for these non-earning days which would otherwise have come through ISG. The plaintiff was born on 20 March 1945. As it was his intention to continue cosmetic surgery until he reached the age of 70, his claim is for damages at the rate of about $94,500 per year for the next five years.

65 The plaintiff’s evidence was that 90 per cent of his cosmetic practice was on referral from ISG. The relationship began in 1996. Between 1996 and 2007 he would carry out the work in Southport, usually for two days each month. Following withdrawal of his Queensland registration in February 2007, he carried out this work at Tweed Heads. Whilst there he also undertook extra surgery on head and neck cancer patients referred by local practitioners.

66 Exhibit AP was a summary of consultations and procedures referred by ISG, and the income derived from them for the period July 2005 to July 2008 on a monthly basis. It shows:

Consultations	Procedures	Gross fees	Net fees
Y/E 30.06.06
60	105	$323,866	$309,780
Y/E 30.06.07
38	66	$206,750	$194,364
Y/E 31.07.08
23	31	$99,288	$94,573

67 The plaintiff’s tax returns, and profit and loss statement (Ex 35) disclosed the following gross hospital and private practice income:

Year ending 30.06.06	$1,269,817
Year ending 30.06.07	$1,207,054
Year ending 30.06.08	$1,332,412
Year ending 30.06.09	$1,271,558.20

68 The plaintiff attributed the downward trend in work from ISG from about February 2007 to the fact that thereafter he was not doing surgery in Queensland. As he said in the interview of 18 July 2008, he had not been associated with Miss Noon a great deal for the previous 12 months. He did not accept that he had any business relationship with her.

69 On 13 August 2008 the plaintiff had a telephone conversation with Miss Noon in which she told him three patients whom he had seen had cancelled their surgery, and patients were still coming to her but asked not to be referred to him. (This evidence was admitted as relevant to hurt feelings, not to economic loss (T p 103). It establishes the fact of the conversation.)

70 On 6 November 2008 the plaintiff wrote to the Medical Board of Queensland seeking a review of the orders made on 5 March 2007. The letter included:

“The financial consequences are also incalculable. Patients do not wish to go near a surgeon who has conditions placed on his practice, considering him to be a rogue and unsuitable, and the Motor Accidents Authority will no longer refer matters to me as a panel expert on scarring and upper limb impairment. The conditions are viewed as though I have committed some gross error and, in short, I believe that those conditions that have been placed upon my practice as a result of possibly being naive seem to me to be overly punitive.”

71 The plaintiff said that since August 2008 he has not done any cosmetic surgery on referral, and has not replaced the work referred by ISG with other cosmetic surgery work. In accepting that as the income from ISG went down, his income from other sources has gone up, the plaintiff said (T p 268) “… I now have half a day a week off, where I never had before. I used to go up to the Gold Coast for two days a week”.

72 The plaintiff submitted that it was reasonable to assume, but for the programme, that the plaintiff’s income from cosmetic procedures would have continued at least at the same level as the year ending 30 June 2008 until he retired in about five years time. It was put that the plaintiff’s increased income from non-cosmetic work did not replace the income gained from the two days per month previously spent on the more remunerative cosmetic procedures, with the result that the increase would have been greater had the referrals continued.

73 For the defendants it was submitted that the claim should be rejected. It was put that the plaintiff’s income tax returns disclose no loss post publication. As Ex AP showed, there was a marked deterioration in referrals and related income from February 2007 to July 2008 whilst the plaintiff’s professional income increased. It was put that the financial records show that, in fact, the plaintiff has replaced and improved upon the declining income stream from ISG. It was further submitted that the history of decline, particularly between January and July 2008, precluded an assumption that referrals would have continued had there been no broadcast on 1 August 2008.

74 The defendants also submitted that there was no evidence that the severance of the relationship was caused by the broadcast. It was put that the probable causes were the effect of the order of the Medical Tribunal as described in the plaintiff’s letter of 6 November 2008, and the broadcast of an earlier programme of “A Current Affair” which referred to Miss Noon and resulted in the cancellation of a procedure.

Consideration

75 In my opinion the plaintiff’s claim, properly described, is one for compensation for loss of the chance or opportunity to earn income from patients referred by ISG post publication. The onus is on the plaintiff to prove the monetary amount of the loss, and that it was caused by the broadcast of the programme. As for causation, it is sufficient to establish that the publication of the defamatory imputations was a cause or materially contributed to the loss (Selecta Homes and Building Co Pty Ltd v Advertiser-News Weekend Publishing Co Pty Ltd [2001] SASC 140, pars 142, 143).

76 In my opinion the plaintiff’s evidence that Miss Noon severed the relationship soon after the broadcast of the libel is sufficient for the finding, which I make, that the programme was a cause of, or materially contributed to, the cessation of referrals from ISG in August 2008. At the time of the broadcast the relationship was in decline for a number of reasons and, in my opinion, probably would have come to an end anyway within a relatively short time. The effect of the programme was a cause of it ending earlier than it otherwise would. Accordingly, the resultant loss is compensable.

77 The paucity of evidence to support the claim makes quantification almost impossible. Neither Miss Noon nor anyone else on behalf of ISG were called. There was neither evidence as to the probability of the relationship continuing, nor evidence which explored the probability of continued referrals to the plaintiff and, if so, the probable number of patients and types of procedures. There were no forecasts or projections of future prospects.

78 Assessment of this component of the claim involves the exercise of a wide discretion. The court is not constrained by narrow limitations and is required to do the best it can despite the paucity of specific evidence. Assistance is to be had from the analysis of the cases by Heydon JA in State of New South Wales v Moss [2000] NSWCA 133, pars 67-87, from which his Honour concluded (par 87):

“The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility”.

79 Allowing for contingencies, the evidence suggests there would have been some referrals after the programme. With loose regard to the information in Ex AP as to the numbers of consultations and procedures between February and July 2008, noting that there were none in June 2008, I estimate the relationship would have ended within the next 12 months, during which the plaintiff would have attended to six referrals. Taking the average fee per patient to be $2,500, I assess damages for economic loss in the amount of $15,000 which is to be included in the overall compensatory award.

Assessment

80 In summary, the plaintiff’s claim is for compensatory damages for harm to reputation, for injury to feelings, for the purpose of vindication, for aggravated damages on a number of counts, and for loss resulting from the cessation of referrals from ISG.

81 I have found that at the time of publication the plaintiff had a settled and high reputation in the wide medical profession as a very competent surgeon. The imputations were grave allegations of incompetence, unfitness to practise as a surgeon, and guilt of serious professional misconduct.

82 The programme was broadcast Australia-wide to about two million viewers. Damage to reputation is presumed. Although witnesses gave evidence of the plaintiff’s reputation, none said that as a result of the broadcast they thought the less of him, or that his reputation was actually diminished in the circles in which he moved. Nevertheless, I do not doubt that the imputations conveyed by the programme would result in significant injury to his reputation. I am also satisfied that, given the nature of the accusations published, it would be natural and probable that there would be discussion about them as the evidence of Dr Maitz, Miss Pye, and the plaintiff himself demonstrated. Thus some allowance should be made for the “grapevine” effect as explained by Gummow J in Palmer, Bruyn and Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 (pars 88-89) in assessing the award.

83 The plaintiff is entitled to compensation for damages done to his reputation and for hurt to feelings. The award must be sufficient to enable him to point to it as a vindication of his reputation and to mark the baselessness of the defamation (Cassell & Co Ltd v Broome [1972] AC 1027; Ley v Hamilton (1935) 153 LT 384). The assessment requires an estimate of the likely duration of reputational damage. I consider it likely that the substantial portion of reputational harm occurred in the weeks immediately following publication with the overall impact on reputation gradually diminishing in the months thereafter.

84 As to the hurt to the plaintiff’s feelings, I have earlier set out the evidence and my findings. I accept the plaintiff’s evidence that he was gravely upset, distressed and angered by the programme, and by the need to undergo the ordeal of these proceedings to obtain an award for his public vindication. In my assessment the significant component of the award should be for compensation for hurt to feelings.

85 Factors to be taken into account also include the continuing harm occasioned by the failure to apologise, the defendants’ persistence in the plea of justification, and the strain occasioned by the proceedings.

86 I have already held that the plaintiff is entitled to aggravated damages for the falsity of the imputations; the conduct of defendants’ senior counsel in asserting in cross-examination that the plaintiff had improperly destroyed photographs of Miss Chia, and had rushed into the operation on Anne for personal profit; and for the defendants’ conduct in the composition, editing and presentation of the programme. Taken together these matters justify a significant increase in the award of compensatory damages.

87 In assessing the amount of damages to be awarded to the plaintiff I have been guided by the relevant principles which emphasise its compensatory, not punitive, purpose and require there be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount awarded.

88 I assess damages for non-economic loss in the amount of $240,000.

89 The plaintiff claims interest from the date of publication, 1 August 2008 at the rate of four per cent per annum. In Greig v WIN Television NSW Pty Ltd [2009] NSWSC 877 McClellan CJ at CL (par 5) said:

“5 It is commonly accepted that the primary damage to a plaintiff’s reputation and injury to feelings is occasioned at the time of publication and shortly thereafter with both elements diminishing over time. For that reason, it is common to award interest at a rate which allows for the diminishing impact of the published libel. This, of course, is different to the circumstances where a plaintiff is pt [sic] out of money or damages with constant injury occurring by reason of the harm occasioned by the defendant’s actions or a failure in a defendant to meet a monetary obligation which existed in the plaintiff.”

90 In my assessment the greater part of compensable harm referable to reputation and hurt to feelings occurred at the time of publication. However, as earlier indicated, I find that the major component of harm resulting from the publication was the hurt to the plaintiff’s feelings which has persisted from the date of publication to the date of this judgment. There was no delay by the plaintiff in commencing and prosecuting these proceedings. The award compensates for loss and harm spread throughout the period from date of publication to trial. In my opinion, in all the circumstances of this case, the award of interest which is fair to both parties should be interest at the rate of three per cent per annum. That calculation produces the sum of $11,700.

91 Accordingly there will be an award of damages for non-economic loss in the total sum of $251,700.

92 I have assessed damages for economic loss in the amount of $15,000. The amount is for compensation for the loss of referrals during the year following publication. Accordingly, in my opinion the fair rate of interest for this component is five per cent per annum. That calculation produces the sum, rounded off, of $1,219.

93 Accordingly there will a total award in respect of economic loss in the sum of $16,219.

94 It follows that there will be judgment for the plaintiff against the defendants in the total sum of $267,919.

95 The question of costs remains outstanding. Failing agreement, arrangements should be made with my associate 4pm 19 March 2010 to list the matter for argument.

**********

Annexure A

A Current Affair

1 August 2008

1.	Tracey Grimshaw (TG)	Last month we brought you the story of cosmetic surgery spruiker Pamela Noon and her controversial offer of free breast implants. Tonight, a young mum and former Meter Maid who claims her career is ruined after botched surgery. Surgery Pamela Noon acted AC an agent for.
2.	Andrea Chia (AC)	I was so upset… about everything that they’ve done to me…
3.	Interviewer (IN)	Andrea Chia was a popular Gold Coast Meter Maid. Today her career is over; her body scarred for life.
4.	AC	I just sit and I just cry, like, because you know I’ve let someone just basically do that to me
5.	IN	And this is that someone.
6.	Peter Haertsch (PH)	Her breasts were fine, except that the implants were exposed.
7.	IN	How can you say her breasts were fine?
8.	PH	Well, look, it’s a matter of perception
9.	IN	This is disgraced plastic surgeon Dr Peter Haertsch and this is the cosmetic surgery agent who led Andrea into his operating theatre. When are you going to stop doing this? Pamela Noon is shameless:
10.	PN	This has been good for promotion and thank you very much for covering it for us.
11.	IN	A Current Affair has been campaigning to make her accountable for over a decade. Now finally, instead of running, she fronted up to face our cameras
12.	PN	I just don’t know what happened with Andrea.
13.	IN	Are you preying on young women?
14.	PN	No.
15.	IN	You don’t prey upon people that don’t have the money to fix the problems
16.	PN	No of course not.
17.	AC	I don’t even know how she sleeps at night
18.	IN	Unhappy with her breasts following the birth of her two children, the 24 year old mum signed up for one of Pamela Noon’s promotion
19.	AC	They just made it sound really great and stuff, but I just had to take action straight away.
20.	IN	Sound familiar? Well, here’s why. Earlier this month our hidden camera investigation exposed her latest stunt – free breast implants, well, that’s what she was spruiking
21.	Footage:	PM: The promotion runs out at the end of this month IN: Women’s bodies shouldn‘t be a supermarket special
22.	IN	Andrea was told that her special deal at the time was a saving of $2,000, for the discount price of $8,000, Pamela Noon’s International Surgery Group sent her to Dr Peter Haertsch
23.	PH	You know, nothing’s perfect in this world.
24.	IN	First, Andrea’s stitches burst.
25.	AC	Later on in that day, both sides went.
26.	IN	You must have been beside yourself at this point
27.	AC	That was just something of a horror story
28.	IN	But, it gets worse. Andrea’s implants actually began to fall out of her breasts.
29.	PH	In retrospect, I believe that the implants were too big for that girl.
30.	IN	Hindsight isn’t going to help her now, though, is it?
31.	PH	Except that this was an unintended consequence.
32.	IN	And, remember, Andrea’s only income was AC a Gold Coast Meter Maid, her uniform a little bikini.
33.	AC	I did miss out on a lot of work such AC, you know, all the photo shoots and a lot of promotional things they had going on, um, they got given to the other girls ‘cause I just simply could not do it … during this whole time I didn’t even see the surgeon.
34.	IN	What part did Pamela Noon play in your medical care?
35.	AC	She bandaged me up herself.
36.	IN	In this secret recording, Pamela Noon is recommending Dr Peter Haertsch, the same plastic surgeon now being investigated for disfiguring Andrea. And the same plastic surgeon who was banned from operating in the State of Queensland after the removal of another woman’s breast. Yes, Pamela Noon is still pushing him onto her clients.
37.	Footage	PN: If I don’t like their work in one particular procedure, I just don’t recommend them.
38.	CM	I don’t support the concept of a surgery broker.
39.	IN	Dr Chris Moss is a member of the Australian Society of Plastic Surgeons. He’s performed breast augmentation on nearly 1,000 patients without complications.
40.	CM	After-care needs to be provided by credited and well-trained nursing staff.
41.	IN	But, Pamela Noon’s after-care comes at a price.
42.	AC	The sister came to me with this document and said, you know, Pamela would like you to sign this.
43.	IN	And this is that document. A gag order to shut Andrea up.
44.	PN	That’s just a standard disclaimer
45.	IN	So, it’s standard to ask a young woman to waive her legal rights
46.	PN	It’s a standard thing to do if we’re going to be doing a revision of any kind.
47.	PH	No, I don’t know about that.
48.	AC	It’s like a massive cover-up all the time.
49.	TG	And Andrea is now considering legal action against Pamela Noon. We’ll let you know the outcome.