Wyss v Dobson - [2001] WASC 93

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WYSS -v- DOBSON & ORS [2001] WASC 93

CORAM: MASTER SANDERSON

HEARD: 29 MARCH 2001

DELIVERED : 10 APRIL 2001

FILE NO/S: CIV 1781 of 1999

BETWEEN: DARREN STEVEN WYSS
Plaintiff
AND
RACHEL MARGARET DOBSON
First Defendant
ANDREW JOHN IRONMONGER
Second Defendant
CRAIG ANTHONY LAWRENCE
Third Defendant

Catchwords:

Defamation - Assessment of damage - Turns on own facts

Legislation:

Nil

Result:

Damage assessed at $10,000

Representation:

Counsel:

Plaintiff:     Ms E McCloskey
First Defendant             :     No appearance
Second Defendant         :     In person
Third Defendant           :     No appearance

Solicitors:

Plaintiff:     Brickhill Banaszak
First Defendant             :     No appearance
Second Defendant         :     In person
Third Defendant           :     No appearance

Case(s) referred to in judgment(s):

McCarey v Associated Newspapers (No 2) [1965] 2 QB 86
Pollack v Volpato (1973) 1 NSWLR 653
The Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58

Case(s) also cited:

Arnett v Roper, unreported; SCt of WA; Library No 990141; 26 March 1999
Bateman v Symons, unreported; SCt of WA; Library No 980458; 18 August 1998
Broome v Cassell [1972] AC 1027

MASTER SANDERSON: This is an action for libel which comes before me for assessment of damages after summary judgment was ordered against the second defendant. At the time summary judgment was ordered the Court ordered the assessment of damages be postponed until such time as the action against the first and third defendants was resolved. That has now occurred.
The facts of the case as against the second defendant are very simple. On the evening of 24 December 1998 the second defendant painted in red paint on the front shutter of the plaintiff's home the words "Child Moleste". The judgment ordered against the second defendant was for damages and exemplary damages: see par 2(a) of the order for judgment dated 31 January 2000. However, at the hearing on the assessment the plaintiff sought only aggravated damages and not exemplary damages.
The facts giving rise to this action are not in dispute. On the evening of 24 December 1998 the second defendant received a telephone call from the first defendant. The second defendant was told certain things by the first defendant. The second defendant had been drinking, although how much he had drunk and the extent to which he was affected by alcohol are not clear from the evidence. In any event, the second defendant went out to his back shed, found a can of red spray paint and went to the plaintiff's house. He then sprayed the words complained of on the front shutter of the plaintiff's property. The plaintiff heard the second defendant and went to investigate. He saw the second defendant run from his property, laughing as he did so. The plaintiff was horrified to see just what the second defendant had done.
The plaintiff says that he was greatly disturbed by what occurred. The allegation made against him was without foundation. He called the police who attended on his property. He says that he noticed throughout Christmas day when there were more than the usual number of people moving up and down his street that many people noticed the offensive graffiti. It was noticed and remarked upon by a number of his neighbours. Although it is the subject of some dispute in the affidavit evidence, I accept that the offending words were not removed until 26 December when the plaintiff and an acquaintance spent some hours removing the paint from the shutter.
An award of damages in a situation such as this is intended to compensate the plaintiff for injury he has suffered by reason of the defamatory publication. Once a publication is found to be defamatory the law presumes that some damage will flow in the ordinary course of events from the mere invasion of a person's right to his reputation: see McCarey v Associated Newspapers (No 2) [1965] 2 QB 86 per Diplock LJ at 108.
Factors which the court should take into account in assessing the quantum of damages to be award include the natural injury to the plaintiff's feelings, the disgrace and grief caused to him and the general disadvantage which results from the wrong done to him, including worry about the words and worry about what other people might think of him as a result of the allegations. There is some limited evidence that the plaintiff has actually been shunned, avoided and that his reputation in the area in which he lives has been negatively affected: see the plaintiff's affidavit sworn 1 March 2001 at par 7 and par 15.
The distinction between aggravated and exemplary damages and the nature of aggravated damages have been considered in a large number of cases of which perhaps the best known are Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, Pollack v Volpato (1973) 1 NSWLR 653 and Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58. In the last of these, Hunt J defined aggravated damages as follows (at 74 ‑ 75):
"Aggravated damages are more properly called aggravated compensatory damages. They are awarded where either the circumstances of the publication of the matter complained of or the defendant's conduct then or subsequently make the injury to the plaintiff worse - when the ordinary compensatory damages awarded for the publication itself may be increased. They are not awarded as a separate amount. Aggravated compensatory damages are usually awarded only in relation to the injury to the plaintiff's feelings: … They are not, however, necessarily so limited, and there may be conduct which has the effect of increasing the injury to the plaintiff's reputation as well … Conduct on the part of the defendant which is relevant to the issue of aggravated damages need not be malicious, but it must be capable of amounting to conduct which was in some way unjustifiable, improper or lacking in bona fides."
It is also relevant to note that the second defendant has not offered to the plaintiff an apology for his actions. During the course of his submissions the second defendant said that he was ready and willing to apologise and that had long been his position. It would appear that there has been correspondence between the plaintiff's solicitors and the second defendant in which the plaintiff sought an apology and a payment of damages. The second defendant was apparently ready to apologise but not to pay any sum by way of damages. Given the impasse over payment of damages the second defendant has not apologised at all. That is clearly a matter to be taken into account: see The Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254.
From the second defendant's point of view there is little to be said in the way of mitigation. I accept that the second defendant had been drinking on the evening that these events occurred and that in acting as he did he was acting out of character. I also accept as he says in his affidavit sworn 25 October 1999 and filed in opposition to the application for summary judgment, that he quickly realised his mistake. To an extent, however, these matters are offset by the fact that he has to date failed to apologise to the plaintiff for his actions. Otherwise there seems to be no matters which operate in the second defendant's favour.
I accept that this is a case which calls for aggravated damages. Taking into account all of the matters raised on behalf of the plaintiff and the matters I have mentioned in mitigation of the second defendant's conduct, I think there should be an award of damages in a sum of $10,000. I am satisfied that this is an amount which will compensate the plaintiff for the wrong done to him by the second defendant.
The second defendant ought pay the costs of the plaintiff on this assessment of damages.