Mirror Newspapers Ltd v Jools

[1985] FCA 181

Re: MIRROR NEWSPAPERS LIMITED
And: IRVING NICO JOOLS
No. ACT G329 of 1984
Damages - Defamation
5 FCR 507

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Fox(1), Gallop(2) and Spender(3) JJ.

CATCHWORDS

Damages - defamation - libel published in three newspapers - calculation of damages against one defendant - whether apportionment of damages for non-pecuniary loss was, or ought to have been made.

Defamation Act 1974 (N.S.W.) ss.13, 46, 48.

Defamation - Damages - Defamatory matter published in three newspapers - Action pending as to the other two publications - Pecuniary loss attributed to all defamations - Certain percentage attributed to defendant by trial judge - Non-pecuniary loss assessed in relation to the defendant's defamation alone - Appeal - Whether damages for non-pecuniary loss should have been discounted - Compensation for loss of reputation - Whether causing both pecuniary and non-pecuniary loss - Defamation Act 1974 (NSW), ss 13, 46, 48.

HEADNOTE

Three newspapers published the same defamatory material. The trial judge in an action against one of them attributed 30 per cent of the proven damage for pecuniary loss to the defendant, and in respect of non-pecuniary loss awarded $80,000 for loss of reputation and distress which he attributed solely to the publication by the defendant.

On appeal by the defendant on quantum of damages for non-pecuniary loss,

Held: (1) (Per curiam.) In response to the appellant's claim that loss of reputation resulted only in pecuniary loss, several possible areas of harm to the respondent over and above pecuniary loss could be enumerated including damage to his professional reputation and to his acceptance in society, injury to his health and the ordeal of litigation generally as well as aggravation of some of these factors by lack of publication of a proper correction and apology.

(2) In response to the appellant's claim that the award for non-pecuniary damages should have been discounted in similar fashion to the pecuniary damages, held that while s 48 of the Defamation Act 1974 sanctions division of damages between co-publishers in certain circumstances, the outcome of proceedings against the other publishers was too speculative and the trial judge was only obliged to be reasonably sure that the damage he awarded could be fairly attributed to the defendant solely.

Lewis v. Daily Telegraph (1964) AC 234, referred to.

HEARING

Canberra, 1985, March 20, 21; May 6. #DATE 6:5:1985
APPEAL

Appeal from a judgment of the Supreme Court of the Australian Capital Territory in which damages for defamation were awarded to the respondent against the appellant.

A. B. Shand QC and J. R. Sackar, for the appellant.

T. E. F. Hughes QC and T. K. Tobin, for the respondent.

Cur adv vult

Solicitors for the appellant: Macphillamy, Cummins and Gibson.

Solicitors for the respondent: Gallens.

GFV

ORDER

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

Appeal dismissed with costs

JUDGE1

This is an appeal from a judgment of the Supreme Court of the Australian Capital Territory (Kelly J.) in which damages for defamation were awarded to the respondent against the appellant. Although a ground of appeal raised the question whether the appellant could rely on a defence of qualified privilege, this ground, whatever it may have encompassed, has been abandoned, and the case as it has proceeded before us has concerned damages only.

The respondent was, and is, a specialist obstetrician and gynaecologist, who carried out an operation in which, due to a mistake on the part of the anaesthetist, the patient suffered a fatal deprivation of oxygen. The operation took place on 6 June 1978, the patient died on 22 November 1978 and a coronial inquiry was held in September 1979.

The action arose out of reports of the proceedings of the coronial inquiry published on 26 and 27 September. The "Sun" newspaper of 26 September, and the Sydney Morning Herald and Daily Telegraph of 27 September all misreported a part of the evidence in ways likely to be seriously injurious to the reputation of Dr. Jools. In short, from the way they reported the matter, it appeared that the respondent, Dr. Jools, had been, or may have been, responsible for the death of the deceased, he having (in terms of the accusation of her husband) "mucked up" the operation.

I set out the material part of what was published in the Daily Telegraph:

"The Coroner, Mrs. Margaret Sleeman, with a jury of six, is inquiring into the death of Mrs. Arnott-Smith, 32, of Glenview St, Gordon . . . .

In evidence yesterday, the Coroner was told that the husband of Mrs. Arnott-Smith, Mr. Brenton Arnott-Smith, said to the surgeon after the operation, 'What you're telling me is that two hours ago I had a perfectly normal wife.

You mucked it up and now I have a vegetable for a wife.'

Dr Nic Jools, of Telegraph Rd, Pymble, the surgeon who performed the operation, told the court that Mrs Arnott-Smith had been without oxygen for approximately 10 minutes during the procedure."

The evidence had been that the accusation of having "mucked it up" was made on the day of the operation by the patient's husband to the anaesthetist, and not, as the reports stated, to the surgeon, Dr. Jools. The statements reflected seriously on the latter's competence. This case concerns the misreporting in the Daily Telegraph, which the appellant publishes.

Dr. Jools was seriously upset. Letters from his solicitors were immediately sent out. A published correction and apology was sought from the appellant. What it did, in an item not nearly as prominent as the report, was to refer in its issue of 28 September to the earlier report, and state that the anaesthetist's legal representative at the inquiry had "told the inquiry" that the accusation had been directed to his client, and not to Dr. Jools. There was no correction related directly to the evidence, and no apology. The Sun newspaper for 28 September carried, in some prominence, a correction and an apology. The Sydney Morning Herald did not publish a correction or an apology. Another action has been brought against the proprietor of both papers, and is still pending.

The present action was commenced in 1980. We do not know what has accounted for the lapse of time, but the amended statement of claim was filed on 23 August 1983, and the hearing commenced on 29 August, 1983. Judgment was delivered on 30 August 1984.

The issue in question of the Daily Telegraph was published in several States and the Australian Capital Territory, but by far the greatest number of papers was sold in New South Wales. Although defences appropriate to the laws of each State, and the Territory, were filed, the case has proceeded on the basis of New South Wales law, as it would apply to papers published there. It is agreed that in assessing damages the publication of papers other than in New South Wales can for practical purposes be disregarded.

There was originally a denial of defamatory meaning, but this appears not to have been pursued. Plainly the matter was defamatory. There was not a defence of justification, but there were several other defences, including that of qualified privilege to which I have referred. It was separately pleaded that the publication was a fair and accurate report of court proceedings (or, alternatively, of an inquiry held under the authority of legislation of New South Wales). The only defence persisted in to this court was one of qualified privilege and, as I have indicated, that was abandoned at the outset of the hearing of this appeal.

A cross appeal was filed by the respondent Dr. Jools, but this too was formally abandoned at the commencement of the hearing before us.

The imputations relied upon, and accepted by the judge, have not been controverted before us:

"(a) That the plaintiff was an incompetent and/or negligent surgeon.

(b) That the plaintiff as a surgeon had acted so incompetently and/or negligently in carrying out a surgical operation that his patient suffered such serious brain damage that she was reduced to the condition of a vegetable and later died."

The learned judge arrived at the amount of damages under two heads. For damages "for loss of reputation" ("non-pecuniary loss") he awarded $80,000. It appears from what he said later in his reasons for judgment that this included an amount for "distress" to the plaintiff. It also appears that the figure arrived at under this heading was attributed solely to the article in the Daily Telegraph. As his findings in this regard have been the focus of the challenge, I set out the most relevant passage, which is also the central point of his judgment under the second head, that of pecuniary loss:

"While I have attributed damages for loss of reputation and distress caused by the publication solely to the article in the Daily Telegraph of 27 September 1979, I do not think it proper to attribute the general damages for loss of professional profits solely to that publication. I cannot ignore the other two publications. Doing the best I can, I think I should attribute 30% of the loss of professional profits to the publication complained of by the plaintiff in this action. Accordingly, I think that the appropriate amount to award under that head is $66,000."

The appellants do not point to any error of principle in what was said by his Honour, but in substance submit that the amount of $80,000 was excessive, having in mind other findings. It then becomes a question of what matters his Honour could properly have taken into account in arriving at this amount, and whether, bearing these matters in mind, the award should be disturbed. If we were to conclude that the award was affected by error, it is the desire on both sides that we should assess the damages ourselves, rather than remit the matter.

The amount of $66,000, representing what has been conveniently enough referred to as pecuniary loss (as general damages), was calculated from figures provided, up to the date of the hearing ($120,000) and for an approximate period of five years thereafter ($100,000), these being the losses attributed to all publications. His Honour said:

"For the future I estimate that the loss will continue, gradually diminishing as his skill re-establishes his reputation. Using an averaging system I estimate his future economic loss as continuing for five years from now although some loss may well continue beyond that date. It is all very much a matter of impression."

This pecuniary loss was not compensation for loss of reputation, but for some of the consequences of the loss of that reputation. The appellant submits that on the whole, in this case at least, loss of reputation resulted in pecuniary loss only and that His Honour therefore awarded an excessive amount under "loss of reputation" as a component of non-pecuniary loss. This is not in my view a tenable proposition.

It is evident that the libel could reasonably be expected to have affected Dr. Jools' reputation in many ways and in the eyes of some he may carry for the rest of his life the stigma that he unnecessarily brought about the death of a patient when operating. He may be affected to some extent in his profession, for example, by not commanding the respect, or being able to secure the standing, or the appointments he might otherwise have expected. I mention these intangible matters only as indicative of possibilities going to show that the loss of income with which his Honour was dealing is not the whole picture in relation even to professional reputation. However, too much should not be made of this aspect. His Honour found that a medical practitioner reading the subject report would probably appreciate that fault must have rested with the anaesthetist, and be concluded that it would have had "comparatively little effect upon medical practitioners". The damage (pecuniary and non-pecuniary) would largely flow, his Honour thought, from judgments reached by lay members of the public and affecting patients, and potential patients. Apart from pecuniary aspects, this could produce damage, or harm, affecting his standing and acceptance in society and related matters. It is necessary, of course, that these aspects be examined in the light of the evidence and that a realistic balance between them be reached.

The plaintiff was entitled to damages for injury to his feelings, and related effects on his health. He suffered from depression, as a result of the publication, and had to seek psychiatric advice and assistance. His Honour subsumed these matters, in the passage cited above, under the heading of "distress" but they were discussed in the course of his judgment.

It is well recognised that the absence of an adequate correction, or of an apology, can be taken into account by way of "aggravation" of damages. There was a correction, but it did not meet fully the effect of what had been stated in the defamatory material. I can understand the difficulty faced by a newspaper reporter when the content of evidence given one day is challenged on a subsequent day. A transcript of what was said may not be immediately available. Nevertheless, the mistake alleged in the present case was an important one, likely to affect seriously the career of the person upon whom it reflected. The reporter, and his superiors, should have exerted themselves to find out what the evidence was, and, depending on the result, should have fully protected the plaintiff. It should have been possible for the appellant to have presented a fully adequate correction and followed it with an apology. Its failure to do so was likely to have left readers in doubt; they were being presented with another element, namely what counsel (for the anaesthetist) had said. The form of the correction, including the absence of an apology, was not likely to mitigate substantially the harm suffered. His Honour was entitled to and did take that aspect into account when assessing damage.

The absence of a full correction, and of an apology related to two aspects, namely loss of reputation, and injury to feelings. The former is directly affected, by reason of a continuing impression left on the mind, and the latter is affected by reason of annoyance and concern suffered by the plaintiff. However, it was not open to the judge to add any amount by way of a "punitive" element, and it does not seem to me that he did so. I should set out, in this connection, the relevant part of s.46 of the Defamation Act, 1974 (N.S.W.):

"46. (1) In this section "relevant harm" means, in relation to damages for defamation-

(a) harm suffered by the person defamed; or

(b) . . .

(2) Damages for defamation shall be the damages recoverable in accordance with the common law, but limited to damages for relevant harm.

(3) In particular, damages for defamation-

(a) shall not include exemplary damages; and

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

(See hereon Andrews v. John Fairfax & Sons Ltd. (1980) 2 N.S.W.L.R. 225)

Another matter specifically relied upon against the defendant (appellant) was its persistence in maintaining defences, some of which asserted the accuracy of the report. The "vindication" of the plaintiff was thus delayed. This is again a matter best left to be considered as part of general damage under the headings of "loss of reputation" and of "injury to feelings", but avoiding any overlap. The learned judge said that before him, only one defence was persisted in, namely that under s.13:

"13. It is a defence that the circumstances of the publication of the matter complained of were such that the person defamed was not likely to suffer harm."

His Honour regarded the defence as absurd. It is well accepted that in considering damages, one looks to the conduct of the defendant up to and including the hearing. There is an apt passage in the judgment of Lord Hailsham L.C. in Cassell & Co. Ltd. v. Broome (1972) A.C.1027 at 1071:

"Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant."

No actual malice of the defendant was asserted in the present case. The reference in his Lordship's remarks to "the litigation" indicates that the judge was entitled to take into account the effect on the plaintiff of the maintenance of the defences, as well, of course, as other elements of the ordeal the hearing constituted for him.

A matter which it would seem is at the heart of the present challenge to the amount of $80,000 for non-pecuniary loss is the fact that other newspapers published closely similar libels at the same time. His Honour dealt with this matter when considering pecuniary (or "professional") damages and by reason thereof discounted the total loss of income by 70%. The submission is put by way of a paradox. It is submitted that if his Honour did not make a similar allowance when arriving at the amount of $80,000, he should have done so: if he did, this would mean that the undiscounted figure for non-pecuniary loss (which would be over $200,000) was greatly excessive.

It was submitted that s.48 of the Defamation Act applied to the assessment of non-pecuniary loss. That section is as follows:

"48. In proceedings for damages for defamation in respect of the publication of any matter, evidence is admissible on behalf of the defendant, in mitigation of damages, that the plaintiff-

(a) has already recovered damages;

(b) has brought proceedings for damages; or

(c) has received or agreed to receive compensation.

for defamation in respect of any other publication of matter to the same purport or effect as the matter complained of in the proceedings."

While the section refers only to the admissibility of evidence, it is plain that it sanctions the division or reduction of an amount of damages in the circumstances to which it refers. In the present case, there is the complication, which is probably not uncommon, that some part of the damages flows from circumstances peculiar to the particular case. In this case, other newspapers acted differently in relation to prominence of publication and in the matter of apologies. Their circulations were different. One does not know what the outcome will be of the action against them. No mathematical apportionment is possible. The best that can be done is to be reasonably sure that what is awarded can fairly be attributed to the defendant, solely. The appropriate approach was discussed by Lord Reid in Lewis v. Daily Telegraph (1964) A.C.234,261, there being a section (s.12) in the English Defamation Act, 1952, in similar terms to s.48:

"Here there were similar libels published in two national newspapers on the same day and each has to be dealt with by a different jury. If each jury were to award damages without regard to the fact that the plaintiffs are also entitled to damages against the other newspaper, the aggregate of the damages in the two actions would almost certainly be too large. Section 12 of the Defamation Act, 1952, is intended to deal with that. In effect it requires that each jury shall be told about the other action, but the question is what each jury should be told. I do not think it is sufficient merely to tell each jury to make such allowance as they may think fit. They ought, in my view, to be directed that in considering the evidence submitted to them they should consider how far the damage suffered by the plaintiffs can reasonably be attributed solely to the libel with which they are concerned and how far it ought to be regarded as the joint result of the two libels. If they think that some part of the damage is the joint result of the two libels they should bear in mind that the plaintiffs ought not to be compensated twice for the same loss. They can only deal with this matter on very broad lines and they must take it that the other jury will be given a similar direction. They must do the best they can to ensure that the sum which they award will fully compensate the plaintiffs for the damage caused by the libel with which they are concerned, but will not take into account that part of the total damage suffered by the plaintiffs which ought to enter into the other jury's assessment."

In this case his Honour found it possible to be more precise with regard to the pecuniary loss than he was with the non-pecuniary loss. So far as concerns injury to reputation, (pecuniary or non-pecuniary) I would have thought that the factors of 30%, as between the two heads of damage, would have been fairly constant. Injury to feelings is of course a different matter. The fact is, however, that his Honour was clearly of the view that the award for "loss of reputation" and "distress" should be $80,000. I am left with some disquiet arising from the relationship between the two amounts, but I am not satisfied there was error in arriving at this figure. In any event, it seems to me that the total award of $146,000 should not be disturbed.

I would therefore dismiss the appeal, with costs.

JUDGE2

I agree with the judgment of Fox J. and his reasons, and have nothing to add.

JUDGE3

I have had the opportunity of reading in draft form the reasons for judgment of Mr Justice Fox in this matter. I agree with those reasons and there is nothing I wish to add.