Marsden v Amalgamated Television Services Pty Limited

HIS HONOUR: I can rule on this aspect immediately: aggravated damages. Interrogatories 63 (a) and (b), in the 1996 action, insofar as the tender is sought to evidence the failure to apologise and thus go to proof of the case on aggravated damages, it is rejected for the reasons as I have stated in my earlier ruling (DLJT: 73)

The plaintiff has also tendered them in support of his case on ordinary compensatory damages and I will hear Mr Nicholas on that.

AT THE CONCLUSION OF MR NICHOLAS' SUBMISSIONS:

The interrogatories to which I have referred in the previous ruling, as I indicated, were tendered also in support of the plaintiff's case for general compensatory damages. That they were tendered on that basis arose from remarks I made as to the existence of the decision of the Court of Appeal in Clark v Ainsworth , on appeal from myself (1996) 40 NSWLR 463, in which it was held, briefly stated (in the headnote) that in proceedings for defamation a refusal or failure to apologise is relevant to general compensatory damages. It is capable of being included as a component of such damages and can, therefore, be the subject of interrogatories.

In the Court of Appeal the principal judgment was that of Abadee AJA in which Sheller JA concurred, and in which Simos AJA also concurred. Their Honours referred to Rantzen v Mirror Newspapers (1994) QB, 670 and inter alia Coyne v Citizen Finance Limited (1991) 172 CLR 211.

As to whether or not Clark v Ainsworth , with the utmost respect to their Honours, can be regarded as correctly decided, is not presently to the point and no submission has been made by the defendant in a formal way that it was not. The submission is made by the defendant that even assuming what their Honours say is correct, there is still a requirement in a plaintiff to give evidence as to what I have earlier described as the subjective condition induced in him, in this instance by the mere failure to apologise (general compensatory damages), as distinct from an improper failure to apologise (aggravated damages).

At page 467B it is said; "In assessing normal compensatory damages the jury may properly take account the extent of the hurt to the plaintiff's feelings which flows from the absence of apology."

Sheller JA then goes on to refer to what was said by McHugh J in Coyne . Conformably with the view I have expressed in my two earlier rulings, absent evidence from the plaintiff himself, the evidence constituted by the interrogatory and its answer, for the reasons I have stated, still is inadmissible. The relevant interrogatories will be marked MFI 49.