Dear Colleagues;

Normally the above two issues are not ones that seem to come together. But there is a very interesting discussion about the rules of causation as they apply to the tort of defamation in a recent Victorian Court of Appeal decision, Jeffrey v Giles [2015] VSCA 70 (24 April 2015) http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2015/70.html . Without going into the case too deeply, it was a case of defamation over the internet resulting from a dispute between two neighbours. In awarding damages the trial judge had acknowledged that hurt and distress had been caused by the offending article, but he said he needed to “distentangle” that from the hurt and distress caused by the other circumstances of the dispute between the parties, and he discounted the award of damages to exclude that “non-defamation” distress.

The CA said he had taken the wrong approach. See the following quote from [42]:

42 Jeffrey and Curnow submit, and we agree, that the judge erroneously applied a requirement that it was necessary for the defamatory statements to be the sole cause of any harm for which compensation would be awarded. Where causation is in issue, it is only necessary that the tortious conduct be a cause of the plaintiff’s injury; it is not necessary that it be the sole cause. { March v E & MH Stramare Pty Ltd [1991] HCA 12;  (1991) 171 CLR 506, 509, 521-3, 530, Rigby v Mirror Newspapers Ltd [1964] NSWR 868.} Once that is established, the plaintiffs are entitled to general damages that have an appropriate and rational relationship to the harm they have sustained. Having found that the defamatory statements causally contributed to the harm suffered by Jeffrey and Curnow, the judge erred by impliedly discounting their entitlement to damages because he found there were other concurrent causes of their harm. This accounts for, and explains, the inappropriately low level of damages he awarded. In effect the judge reduced the damages to which Jeffrey and Curnow were entitled by eliminating from his assessment any harm for which there was a concurrent cause. This was the wrong test and he erred in applying it.

neil foster