The Queensland Court of Appeal has provided guidance concerning the liability of several concurrent tortfeasors in defamation.
- Whether a trial judge erred by assessing damages severally against two “camps” of defendants in a defamation action arising out of a television broadcast.
The four plaintiffs (the respondents on appeal) were the subject of a Channel Nine 60 Minutes program aired on 24 March 2015 (the program) about the inundation of Grantham in the 2011 Queensland floods, in which 12 people tragically lost their lives. The plaintiffs commenced a defamation action against the defendants (the appellants on appeal), who comprised various companies involved in the broadcast of the program (the broadcasters), and Nick Cater, a journalist who was interviewed in the program. The plaintiffs alleged the program led people to believe that they were responsible for the disaster at Grantham due to the collapse of a wall at a nearby quarry they owned. In October 2015 the Grantham Flood Commission of Inquiry released a report that exonerated the plaintiffs.
The decision at trial
The trial was heard in the Supreme Court before a judge and jury. The jury found the broadcasters and Mr Cater had defamed the plaintiffs by publishing an imputation to the effect that they caused the flooding at Grantham. The jury also found that the broadcasters had separately published several other defamatory imputations. The trial judge took oral and written submissions from the parties concerning the assessment of the plaintiffs’ damages. The trial judge then initialled a draft order that indicated the broadcasters were to pay $600,000 in damages (including $200,000 in aggravated damages) plus interest to each plaintiff, and Mr Cater was to pay each plaintiff $300,000 in damages (including an unspecified amount of aggravated damages) plus interest.
The issues on appeal
The appeal related to the assessment of damages, the main issue being whether the trial judge erred in assessing damages severally against each of the broadcasters on the one hand and Mr Cater on the other.
The Court also dealt with several arguments from the appellants to the effect that the trial judge’s assessment of damages was excessive. It suffices to say the Court rejected those arguments and left the total amounts of each judgment undisturbed.
The Decision on appeal
The Court unanimously allowed the appeal in part, with Jackson J writing the leading judgment. Jackson J began by characterising the relationship between the broadcasters and Mr Cater in the harm done to the plaintiffs. Because the interview with Mr Cater formed part of the program, the broadcasters and Mr Cater were “several concurrent tortfeasors” (that is, they engaged in different conduct that combined to cause the same, indivisible harm to the plaintiffs). Although the interview with Mr Cater gave rise to defamatory imputations published by both Mr Cater and the broadcasters, the program also contained other imputations for which Mr Cater was not responsible.
As Mr Cater and the broadcasters were several concurrent tortfeasors, Jackson J considered an issue of “double recovery” arose. That was because the draft orders against the broadcasters on the one hand, and Mr Cater on the other, included damages relating to the same harm. In other words, if the plaintiffs collected the full amount of each judgment, they would have recovered twice for the harm caused by the interview with Mr Cater. As the draft order did not specify the amount of aggravated damages awarded against Mr Cater (for which the broadcasters were not responsible), the defendants could not ascertain the amount of ordinary damages awarded against Mr Cater (which related to the indivisible harm caused by him and the broadcasters) and could not prevent a double recovery.
After dealing with (and rejecting) an argument that the defendants were precluded from objecting to the form of the judgment, Jackson J then considered what the Court should do to avoid a double recovery. In his Honour’s view, as long as the judgments distinguished between the ordinary and aggravated damages awarded against the defendants, the defendants could rely on the general rule against double recovery to prevent any excessive collection of the judgments by the plaintiffs. As the trial judge awarded aggravated damages against the broadcasters in a ratio of 1:2 with ordinary damages, applying the same ratio to the judgment against Mr Cater resulted in aggravated damages of $100,000. It was not necessary to remit the matter to the trial judge to re-assess damages against Mr Cater.
Implications for you
The Court of Appeal has clarified that a plaintiff is unable to recover damages twice for harm done by several concurrent tortfeasors in defamation. This might arise in a situation where one defendant re-publishes comments made by another (as occurred with the interview segment of the program).