M.6Conclusions on Aggravated Damages
1077 I have found one aspect of the respondents' conduct to be improper and unjustifiable. Insofar as Network Ten is concerned, its conduct in relation to the Logies speech given by Ms Wilkinson was egregious.
1078 But it does not follow axiomatically that this conclusion leads to an augmentation of the damages to be paid to Mr Lehrmann.
1079 Justice Brennan in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 (at 471) explained that an award of exemplary damages "is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter him from committing like conduct again". I am, however, prevented from making an award of exemplary damages by dint of s 37 of the Defamation Act. Punishment for the wrongful conduct of Network Ten and notions of specific deterrence are inconsistent with a compensatory award and, as Hunt J explained in Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474 (at 496):
The distinction between compensatory damages and punitive damages cannot be overemphasized. Compensatory damages are given to compensate the plaintiff for the harm done to him by the publication of the matter complained of; aggravated compensatory damages (which are also known as merely "aggravated damages") are given to compensate him when that harm has been aggravated by the defendant's conduct. Punitive damages, on the other hand, are given to punish the defendant and relate only to the defendant's conduct; they do not depend upon any effect of that conduct on the harm of the plaintiff.
1080 Mr Lehrmann is not automatically entitled to an award of aggravated damages even though a necessary condition for the making of such an award has been satisfied. He must still prove that his harm has been exacerbated by the respondents' improper and unjustified conduct.
1081 There has been some debate as to the precise justification for aggravated damages at common law. The Law Commission of England and Wales in its report, Aggravated, Exemplary and Restitutionary Damages, Law Com No 247 (1997) (at [1.9]) suggested the label "damages for mental distress" should be used instead of the misleading phrase "aggravated damages" and remarked that once it is appreciated that aggravated damages are concerned with circumstances in which the victim of a civil wrong may obtain compensation for mental distress, a more coherent perception, and so development of, the law on damages for mental distress should be possible.
