Poniatowska v Channel Seven Sydney Pty Ltd (No 2)

The Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Blue and Nicholson JJ, considered the assessment of damages in a defamation proceeding brought by Ms Poniatowska against Channel Seven Sydney Pty Ltd. The appeal concerned the quantum of damages to be awarded following findings of liability against the defendant. The trial judge had not assessed damages but had made findings relevant to their assessment, and the Full Court determined it was appropriate to assess damages on appeal rather than remit the matter.

The primary legal issues before the Full Court were the assessment of general damages for non-economic loss in defamation, including the principles governing compensation for hurt feelings, damage to reputation, and vindication of reputation. The Court also considered the application of the statutory limit on damages for non-economic loss under section 33 of the relevant Act, and whether this provision affected the availability of aggravated damages for post-publication conduct. The Court was required to determine the factual basis for the assessment, including the extent of publication and the impact on the plaintiff.

The Court applied common law principles for assessing damages in defamation, noting that such damages serve to compensate for hurt feelings, repair damage to reputation, and vindicate the plaintiff's reputation. It was established that the harm caused by a defamatory publication extends beyond the date of publication to include ongoing hurt and the need for vindication throughout the litigation. The Court also addressed the statutory cap on non-economic loss, confirming that it operates as a limit and does not alter the common law principles for assessment. The Court rejected the contention that section 33 eliminated the right to aggravated damages, finding that the provision was directed at limiting non-economic loss rather than abolishing aggravated damages, and that any such intention would require express legislative provision.

In its assessment, the Full Court had regard to the admitted viewership figures for the broadcasts and the plaintiff's pleaded case. However, it declined to consider broadcasts on other Seven Network stations for which no evidence of connection to the defendants' publication was adduced. The Court also noted the complexity surrounding internet downloads, with limited data available regarding "page views" from various locations. Ultimately, the Court found that Ms Poniatowska had not established an entitlement to aggravated damages.