From: Neil Foster <>
Date: 05/05/2015 23:41:47 UTC
Subject: ODG: Causation and defamation

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) . 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.

So this sounds a bit like the approach adopted under the doctrine of “material contribution to harm” in a physical injury case: so long as the plaintiff can show that the action of the defendant made some, non-trivial, contribution to a set of necessary causes, he or she does not need to show that the defendant’s actions were a “substantial” contribution. [I know others disagree with me over what “material contribution” means but I argue this is the best way of reading those cases.]

However, the Vic CA go on to note that in some cases there are justifications for separating out distress and upset caused by different parts of a publication, citing the decision in Trkulja v Google (No 5) [2012] VSC 533, where damages were awarded for some bits of a web publication (images) and not for other bits. But what they point out is that in awarding damages for defamation there are two aspects to be considered:not only compensation for distress and emotional harm, but also “vindication” of one’s reputation. So while one may want to discount damages where different causes of distress are identifiable ( perhaps one could view distress as being “divisible”?), the error that had been made was to not look at the final result in light of the vindication aim. As they conclude their discussion:

[46]…In awarding damages by reference to that harm which was solely caused by the defamatory statements he appears to have lost sight of the need for the damages awarded to be of a sufficient quantum to vindicate the reputation of those defamed. In our view, the judge failed to arrive at a sum which vindicated the reputations of Jeffrey and Curnow; he failed ‘to demonstrate, to the bystander, the baselessness of the allegation ... in the defamatory material’ {… Broome v Cassell & Co Ltd [1972] UKHL 3;  [1972] AC 1027, 1071 (Lord Hailsham LC)}— that is, he failed to ‘nail the lie’.

An interesting example of the different functions that awards of damages can play, and how causation may apply in different ways.


neil foster 
Associate Professor
Newcastle Law School
Faculty of Business and Law

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