(see Rochfort v John Fairfax & Sons Limited [1972] 1 NSWLR 16 (at 22–23)), as was explained by McColl JA in Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232, like the continuing nature of damage to reputation that may occur after the defamation, any evidence of post-publication material going directly to reputation and that is otherwise admissible should be considered to ensure that the damages awarded in accordance with s 34 of the Defamation Act accurately reflect the applicant's reputation at the time the damages are awarded (although, as noted above, any so-called Burstein use must be approached with caution and must be carefully confined (at 283–284 [246] per McColl JA, with whom Spigelman CJ, Beazley JA, McClellan CJ at CL and Bergin CJ in Eq agreed)).
1008 All in all, this is a more complex way of saying that an assessment reflecting an appropriate and rational relationship between the harm sustained and the quantum of damages does not occur "in blinkers".
M.3Mr Lehrmann's Submissions on Ordinary Damages
1009 Unsurprisingly, Mr Lehrmann asserts that the starting point for the assessment of damages should be the fact that the central allegation, that Mr Lehrmann raped Ms Higgins, is extremely serious; indeed, it is one of the most damning allegations which could be made. It is also said that the severity of the "base allegation is aggravated by the features delineated in the separate imputations pleaded by Mr Lehrmann", which I have already described.
1010 Damages should also be assessed on the basis that, even though he was not named in the Project programme, actionable publication occurred to a "wide circle" of people and the publication should not be treated as limited to a small number of people personally acquainted with Mr Lehrmann.
1011 The evidence relevant to the impact of the Project programme on Mr Lehrmann's reputation and the hurt feelings he experienced because of it are, it is submitted, devastating.
1012 It is said that even if the Court formed an adverse view about Mr Lehrmann's credit on other issues, it would accept his evidence of hurt feelings and the reaction he described in his evidence is plausible. It is submitted that it is natural that a young man accused of such a crime on national television would be extremely upset, frightened, and angry, as he described.
