1017 But in considering what relevance any adverse findings have to the assessment of a proportionate award, those findings must be considered in context of the very serious nature of the defamation and the resultant high need for vindication. Once that is recognised, it is submitted the reduction on account of such findings should be "relatively small".
1018 Presciently, Mr Lehrmann's submissions deal expressly with what is described as the:
maximal findings which could in theory be made, short of upholding the justification defence–that intercourse probably happened in Senator Reynolds' suite, and that Ms Higgins was not capable of consenting to it because of her state of intoxication, but that Mr Lehrmann did not have knowledge of her inability to consent.
1019 As I have explained, I am proceeding to assess damages on this basis, and Mr Lehrmann's contention is that should still lead to an award of damages which is substantial given that the distinction between findings of this kind "and a finding that rape occurred (particularly in the manner described in the [Project programme]) is real and significant" and where the allegation is so serious, the distinction "should not be elided by a low award of damages which signals that what was published was 'close enough'".
1020 More specifically, it is further accepted that if it was found: (a) Mr Lehrmann did have intercourse with Ms Higgins; (b) he did it despite being in a relationship; and (c) that he told a lie about it to the AFP, these matters would be relevant to the assessment of damages, as would the termination of his employment for a security breach. However, apart from the telling of a lie to the AFP, it is submitted that these matters would have no significant effect on the assessment of damages.
1021 It is said that "infidelity in a monogamous relationship is a question of personal morality" and that "many people would regard it with indifference when it did not concern a person to whom they were close". Similarly, if Mr Lehrmann left Ms Higgins drunk and naked on the couch it is accepted (with considerable understatement) that this "was certainly ungentlemanly, but not much more could be said about it than that" and it could not make any meaningful difference to the huge reputational damage caused by the publication of the untrue allegation of rape.
1022 Finally, it is contended that the "mitigatory effect" of the News Life and ABC settlements would only be small, because the payments were characterised publicly as contributions to costs only and there was no apology, admission of liability, or entry of judgment, those settlements did not and could not do anything to vindicate the damage to Mr Lehrmann's
