1082 But despite these debates as to the underlying justification of aggravated damages, insofar as the common law of Australia is concerned, the basis of aggravated damages was explained by Hodgson JA in State of NSW v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 (later approved by Tobias AJA, with whom Meagher JA, Bergin CJ in Eq agreed in MacDougal v Mitchell [2015] NSWCA 389).
1083 In Riley, Hodgson JA noted that having assessed the appropriate level of damages, the compensatory nature of aggravated damages leaves room for the award of further compensation without incurring the risk of double counting and noted (at [131]) that the principled explanation for this is that:
[it] is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt damages neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified.
1084 His Honour added (at [133]) that there must be a justification for this approach, which he acknowledged was one of degree so that "the worse the defendant's conduct, the further from the centre of the range and towards the upper limit of the range the court may be justified in going".
1085 In the end, however, the fundamental point is that aggravated damages are compensatory damages.
1086 As with other aspects of Mr Lehrmann's case on compensatory damages, a complication arises: although he was initially extremely distressed and hurt by the conduct of the respondents in undermining his right to a fair trial, this only lasted for a short period and has had no ongoing effect. Mr Lehrmann gave evidence that it became evident soon after the speech that Ms Wilkinson, ironically, did him a favour by making the Logies speech.
1087 Although denying that the Logies speech saved him from conviction (T526.38–42), Mr Lehrmann said in the Spotlight programme that the adjournment occasioned by the Logies speech fortuitously allowed his legal team sufficient opportunity to "dig deeper … go down the rabbit holes … find the golden nuggets" with the potential result that "if they had not
