HALF a decade ago Nicholas Carson wrote to the chief editorial executive of The Sydney Morning Herald and said, “”I have no wish to sue your company for defamation.”
Carson ended up suing, and his case was ruled upon in the High Court last week. He was upset over an article written by John Slee over some complicated litigation by Leszek Rajski involving some computer wizardry. Slee quoted Rajski’s accusation against Carson that Carson used some underhand legal tactics to undermine Rajski’s legal action.
Slee made a fundamental error of not giving Carson a decent right of explanation, and any solicitor reading Slee’s column would have thought that Carson was a bit of a sleaze for acting the way he did, when in fact there was no foundation for that.
Carson, quite reasonably, wanted an apology. The Sydney Morning Herald gave him an apology, but a mealy-mouthed one, and very silly anyway because if you are going to grovel you may as well grovel properly.
So Carson sued. The whole thing got lawyerised and blown out of proportion. The jury awarded Carson $600,000. The amount was plainly manic. To show how out of touch the legal system is in Australia, three of four High Court judges thought it was a proper verdict.
Let’s face it, $600,000 would provide someone with an indexed annuity of more than the average wage enough to compensate the ordinary Australian for a lifetime’s wrecked earning capacity. As far as I’m concerned John Slee can devote a full column to denouncing me as a child rapist for $600,000, and I’d take the money. If he just wanted to say I was an underhand journalist who used dirty tactics to get a story, I’d say that was worth about five thousand bucks, though I’d prefer a correction.
But if you wanted to smash up my legs so I couldn’t go skiing any more I’d want a million bucks. Seriously, I wouldn’t have my legs smashed up so I couldn’t go skiing for any amount of money. But if some chattering legal columnist wants to have a go, he can say what he likes, it doesn’t make much difference. People who know and respect you don’t listen to such rubbish and if they do they are not worth knowing and their respect is not worth having.
The comparison with personal injury became a central issue before the High Court. Four of the seven judges put the sensible view that defamation verdicts must bear some proportion to damages for personal injury. It has taken some years coming. Humans, unlike lawyers, do not put things into neat categories where the twain shall not meet. They get outraged if a paraplegic gets $50,000 for a lifetime’s pain and suffering (aside from any damages for loss of earnings) yet a solicitor gets $600,000 because The Sydney Morning Herald wrongly accused him of sleazy conduct.
Politicians, federal and state, have been given decades of opportunity to fix this idiocy; and they haven’t. Politicians were given decades to repair the dispossession of Aboriginal people and did nothing. Well, thanks heavens for the High Court. It cannot, however, fix things in the comprehensive way that a legislature does. The Mabo and Carson cases will take a long time to feed through the system. But at least the High Court can put a bit of a rocket under the legislature.
However, the High Court cannot address a more fundamental reform. Without legislation it cannot order publication of corrections. Justice Michael McHugh, in the minority, has made much of insisting the defendant be forced to pay damages high enough to give the plaintiff sufficient solatium for his hurt. This is just a sophisticated way of saying the defendant must be punished.
That solatium would be better provided through publication of court-ordered corrections than huge damages, which only harm the public interest because they ultimately come out of editorial budgets and reduce a newspaper’s capacity to provide the public with better information.
The High Court has taken the first step in insisting defamation damages bear some resemblance to personal injury damages. It is now for the legislature to bring further sense into the area by providing for court-ordered corrections. If we are dealing in reputation, humiliation is a more appropriate redress against sloppy journalism and serves the public interest better than windfall loot for a few lucky plaintiffs.