Section 10(c) of the Workers Compensation Act. Refer back to Section 10(1) multiply it out. Yep. That’s the result. If a worker, in an accident at work, losses the lot, both testicles and his penis, he gets a maximum of. wait for it. $41,860.46. So, what’s all this about a footballer in Sydney getting $350,000 last week for just having a photograph of his vital parts in a magazine? They weren’t chopped off or anything. Just a photograph of them.
There’s something seriously wrong here. A worker with his vitals gone forever gets $41,860 yet a star football player with just a photograph of his in a magazine which virtually nobody had heard of until this case gets $350,000.
The law is an ass and a lottery. It’s enough to turn anyone into a socialist: one law for the workers and another for the famous football stars. And it’s not as if the footballer has to go to any great deal of proof to get his damages. He only has to prove publication (hold up the magazine or ask the publisher how many copies he sold) and suggest the publication hurt his reputation. He does not have to prove it actually did hurt his reputation. Indeed, many people came along to court say what a jollly chap he was.
Even the footballer himself was flabbergasted by the result, judging from his comment outside the court: “”I’m trying to gather my wits.” That’s more than the jury did that gave him the award. Have they no idea of the value of money.
They awarded him 12 years’ worth of average weekly earnings, just for having a photograph of himself in the nick in a magazine. I tell you what, for $350,000 I would gladly have my photo full frontal nude in the Woman’s Weekly. I doubt if there would be a male in the country (other than the odd millionaire or bishop) who would refuse.
None the less it was a fabulous verdict for one thing: it held the defamation law up to the hatred, ridicule and contempt it deserves.
However, in the great debate about balancing the public’s right to know against the individual’s right to reputation, the Ettingshausen case doesn’t matter a fig leaf. He was only a footballer; and the public’s right to know about his private parts and private life is negligible. They pay to see him perform on the field, not elsewhere.
The issue is privacy. Ettingshausen was lucky to draw a jury of four who must have felt strongly about the press intruding into private lives. For the jury it was a chance in a lifetime to express their outrage. The law, very stupidly, does not permit them to make a statement about why and how they came to their verdict, thus they could only speak through the size of the verdict.
A sensible government would grab this verdict and do something about privacy and defamation. Money is the wrong remedy, especially when it is paid years after the event. Courts should be able to force the publication of corrections and apologies, for both defamation and invasions of privacy. Once they can do that, the need for large damages falls away. They could be capped at, say, $10,000 and judges would make the assessment. Once you did that, the big-name lawyers would flee the defamation game and there would be fewer very costly drawn out cases in the Supreme Court.
At present, juries feel they need to award high damages on occasions to make a point. The point should be made in strong words widely published. That is a more appropriate remedy because publication goes to the heart of reputation and goes the heart of repairing anger and hurt caused by invasions of privacy. The trouble with the present system of making high damages the vehicle for expressions of outrage at press misconduct, is that it warps the public’s view of other areas of the law and erodes the public’s confidence in the law. Rightly or wrongly, the public sees big defamation damages as a statement that there is one law for the rich and famous and another for everyone else. And there is, too.
The other point about high defamation damages is that ultimately they (and the even-larger accompanying legal costs) get passed on to the long-suffering public in the form of higher cover prices and advertising rates (about 2 cents per copy sold, I estimate). The publication of corrections and apologies dishes out humiliation to the editors and journalists who make the error. The humiliation is a form of both punishment, deterrent and education that will do more to improve press conduct than high damages, which only leave feelings of aggrieved outrage.