The $350,000 awarded to Andrew Ettingshausen is plainly over the top. Under NSW law, juries determine damages for defamation under guidance from the judge. The judge did his best, and even warned the jury that an impossibly high verdict would only be turned over on appeal. However, the jury apparently wanted to make a statement about the intrusive press and to vindicate Ettingshausen. Whatever the merit in its motives, the vehicle for expressing them _ huge damages _ was inappropriate and in the long run will achieve nothing. Ettingshausen will now have to await the inevitable appeal process, maybe years, before he sees any money.
The $350,000 will only further jaundice people’s view of the legal system. The public will be as cynical as they were over Leo McLeay’s $65,000 for falling off a bike. At least Mr McLeay suffered some permanent injury. To get $350,000 in a personal-injury case, one would have to lose a leg or suffer some very major permanent injury. The maximum amount for pain and suffering in personal injury (as distinct from loss of earnings) in NSW is about $100,000. How can the pain and suffering of a paraplegic after a car accident be compared to that of a fit man seeing a picture of himself naked? The law, however, does not permit judges or lawyers to inform juries about going rates for personal-injuries claims.
The awarding of damages must be taken out of the hands of juries and be made by judges. Juries are equally capable of awarding ridiculously low amounts. The trouble is that, in defamation in particular, they appear to respond to prejudice and personal feeling. Footballers do better than politicians. If judges award damages they can do so with accompanying words. They can express disquiet about press behaviour and a plaintiff’s good conduct in words without resort to huge damages, which is the only weapon of a jury. Huge damages awards will only result in inequities that cause the public to view the law as an ass or a lottery.
Defamation damages should be capped at, say, $10,000. The law should provide a law of privacy providing the same level of damages. That alone would discourage people hiring expensive big-name lawyers and discourage both sides from permitting cases to drag on. The law should encourage speedy corrections, not pots of gold years after the event for the lucky few willing to risk huge lawyers’ bills. This week’s verdict can only add to community concern that the law is for the rich and famous and inaccessible to the ordinary Australian.