Peter Coggins, Shine Lawyers’ national Professional Negligence and Defamation practice leader, discusses the Rebel Wilson defamation case and its most recent installment: The slashing of Wilson’s damages by the Court of Appeal.
Rebel Wilson’s defamation case continues to provide eye-catching installments as it meanders its way through the court process. There was the celebrity jury trial with the celebrity witness giving evidence. Excellent television.
There was the record-breaking, eye-watering damages award of over $4 million at first instance. There was a bandwagon of media corporations attempting to embroil themselves in the appeal.
Then, more recently, we have had the slashing of Rebel’s damages by the Court of Appeal to be more in line with what some would say are contemporary standards.
And finally, we have the Trump-channelling announcement on twitter by the star herself of a possible High Court appeal. But behind these instalments, will Rebel’s case, when it reaches its conclusion, have forged a noteworthy legal precedent in Australian defamation law?
The ‘defamatory’ aspect
The “defamatory” aspect to the case has long since fallen by the wayside. The jury found the publications were defamatory. The publications about Rebel’s age and upbringing were false. They weren’t properly investigated. The findings in relation to Bauer’s knowledge of the falsity of what they were publishing and their intentional take-down campaign against Rebel all went unchallenged on appeal.
Statutory cap on damages awards for non-economic loss
The damages aspect of the case, however, will continue to give rise to a few legal talking points. As to Rebel’s damages for non-economic loss, that is the damages for the hurt feelings and humiliation caused by the publications (defamation’s traditional compensatory purview) her damages were reduced from $650,000 to $600,000.
The reduction of itself isn’t particularly significant. What is significant, however, is the Court of Appeal’s decision to uphold the trial judge’s ruling that the statutory cap on damages awards for non-economic loss can exceed the cap where circumstances of aggravation are established.
One might now question the purpose of the cap given this decision at appellate level, and this could be an area of consideration in the pending defamation law reforms. Perhaps a cap on any award over the cap, or a percentage uplift regime, might resolve the issue.
Frailties of loss of opportunity cases
Then there was the Court of Appeal’s dismissal of Rebel’s economic loss award in its entirety – from $3.9 million to zero. At a general level, the reduction to Rebel’s economic loss award highlights the frailties of loss of opportunity cases for plaintiffs.
Identifying and selling the lost opportunity as well as the causal connection between the tort and alleged damage is a very difficult and imprecise exercise. In Rebel’s case, the Court of Appeal permitted itself to conduct a “real review” of the evidence on which the trial judge came to the assessment of Rebel’s economic loss.
In this review, the Court of Appeal questioned and ultimately doubted the evidence as to Rebel’s career trajectory, the “grapevine effect” of the articles in the USA, and the veracity of Rebel’s expert evidence – including her own expert’s unawareness of the articles at material time. The reduction was essentially based on issues in relation her own evidence, and not any particular evidence of Bauer.
Conclusion
The current talk of significant defamation law reform doesn’t particularly touch on any aspects of Rebel’s case and more so relates to the area of online defamation. Any concerns that were held in relation to Rebel’s initial award of damages should have abated because the judiciary has taken to correcting that result.
The case does, however, highlight that when damages for defamation are sought beyond their tradition remit, the Courts will adhere to established principles and conduct forensic assessments of alleged loss and causation.
Peter Coggins leads Shine Lawyers’ national Professional Negligence and Defamation practices. Peter has over 12 years’ experience advising and acting for clients in contested negligence and defamation disputes. At Shine, Peter acts for consumers, retirees, professionals, corporations and not-for-profits in pursuit of their compensation claims. Contact Peter here