Date: Fri, 3 Nov 2006 17:21:28 +1100

From: Harold Luntz

Subject: Defamation and compensation for enrichment

Some random thoughts that might assist - or confuse - our Swedish colleague and amuse some of the other contributors.

First, a statement from a non-lawyer, who knew a thing or two about metaphors, even if he was unfamiliar with the modern tabloid press:

Good name in man and woman, dear my lord,
Is the immediate jewel of their souls:
Who steals my purse steals trash; ’t is something, nothing;
’T was mine, ’t is his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him
And makes me poor indeed.

Shakespeare, Othello, Act iii. Sc. 3.

Secondly, a statement in a dissenting judgment in the High Court of Australia:

Although damages are awarded to vindicate the plaintiff's reputation, damages are not awarded as compensation for the loss in value of a plaintiff's reputation as though that reputation were itself a tangible asset or a physical attribute which, once damaged, is worth less than it was before [citing Dingle v Associated Newspapers Ltd [1964] AC 371]. In order to achieve the purpose of vindicating reputation, damages for defamation are quantified by reference, inter alia, to what is needed to achieve that purpose: those damages are not quantified by reference to a depreciation in the value of a plaintiff's reputation.

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 70 per Brennan J.

Thirdly, in Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 the High Court of Australia upheld an award of damages of $250,000 for defamation of the original defendant (surgeon) in a report of the well-known medical negligence case of Rogers v Whitaker (1992) 175 CLR 479, which imputed that he had botched the operation, whereas his negligence consisted only in failing to warn of a risk. This substantial award was made though he was not actually named in the report, his practice seems not to have suffered (he proved no economic loss) and legislation in NSW prohibited exemplary or punitive damages.

Fourthly, in Borders (UK) Ltd v Commissioner of Police of the Metropolis [2005] EWCA Civ 197 (3 March 2005) the English Court of Appeal upheld an award of £100,000 exemplary damages under Lord Devlin's second category, though they could have been claimed (but were not) as compensatory damages and despite imprisonment of the defendant for selling stolen books from a market stall.

Harold Luntz
Professorial Fellow
Law School
The University of Melbourne
Vic 3010

Home address:
191 Amess St
North Carlton
Vic 3054
AUSTRALIA

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