Damages in Defamation Claims
Damages in defamation claims are monetary awards intended to compensate a plaintiff for harm to their reputation caused by a defamatory publication.
At common law, the principle of restitution in integrum applies. That is, damages in defamation claims aim to restore the plaintiff, as far as money can do, to the position they would have been in had the defamation not occurred.
In defamation proceedings, courts award damages “at large”, meaning the sum is not limited to provable financial loss.
Rather, damages in defamation claims may include amounts for hurt feelings, damage to reputation, and vindication of the plaintiff’s standing in the community: Cassell & Co Ltd v Broome [1972] AC 1027 per Lord Hailsham, who said:
It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways, as a vindication of the plaintiff to the public, and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.
This discretionary process is inherently subjective and not capable of being reduced to any formula: Carson v John Fairfax & Sons Ltd & Slee [1993] HCA 31 at 44 per McHugh J, who said:
No doubt the rough-and-ready process by which juries assess damages in a defamation action is not one which appeals to the many sophisticated minds of the spreadsheet generation. It does not, as the speech of Lord Shaw makes plain, purport to be a scientific, or even a pseudo-scientific, process. There are no columns and rows into which the components of the verdict can be conveniently placed, no relationships which can be made the subject of mathematical formulas.
The award is assessed once and for all. As observed in Lim Poh Choo v Camden & Islington Area Health Authority [1980] AC 174, and adopted in Todorovic v Waller [1981] HCA 72, who said at [12]:
There is really only one certainty: the future will prove the award to be either too high or too low.
In this article, our expert defamation lawyers explain damages in defamation claims.
Why Damages Matter in Defamation Law
Damages in defamation claims serve several important functions in defamation cases.
First, they provide consolation for hurt feelings; second, they offer reparation for damage to reputation; and third, they serve as vindication in the eyes of the public: Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 from [4747].
These goals underpin the common assertion that reputational harm is often “irreparable,” warranting significant compensation.
Notably, even in the absence of actual reputational loss, compensation may still be awarded if the plaintiff had a previously settled reputation: Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1367]:
My findings are that the plaintiff enjoyed a good settled reputation established over the whole of his life: it was founded in many areas both public and personal. It was a good settled reputation in respect of which the false charges captured in the several imputations of such gravity were damaging in the highest degree.
As stated in Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40 at [10], the award is not for the damage to reputation per se, but for the invasion of the plaintiff’s legal rights, where the Court said:
… it is the function of the civil law to permit an award of damages by way of punishment. The first of these is, as we have seen, limited to the “oppressive or arbitrary” invasion of another’s rights …
Moreover, as observed in Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [150], a plaintiff does not need to prove specific reputational harm; it is sufficient that they were publicly defamed. The Court said:
A person who is defamed does not get compensation for his or her damaged reputation, but receives damages because s/he was injured in his or her reputation, that is simply because s/he was publicly defamed. For this reason, compensation by damages operates in two ways – as a vindication of the plaintiff to the public and as consolation to him or her for a wrong done.
The seriousness of the imputation, the breadth of its dissemination, and the defendant’s conduct are all critical factors in assessing quantum.
The Role of the Defamation Act 2005
The Defamation Act 2005, enacted across all Australian states and territories, significantly reshaped the legal landscape of damages in defamation claims.
Section 10A, introduced in 2021, is a key reform. It now requires plaintiffs to prove that a defamatory publication “has caused, or is likely to cause, serious harm” to their reputation.
This provision overrides the previous common law presumption of damage.
Further, section 35(1) of the Act imposes a cap on non-economic loss, which is updated annually. The section says:
The maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250,000 or any other amount adjusted in accordance with this section from time to time (the “maximum damages amount” ) that is applicable at the time damages are awarded.
In the Queensland Government Gazette dated Friday 6 June 2025, the amount was set for non-economic loss as $500,000.00. It says:
I, Deb Frecklington, Attorney-General and Minister for Justice and Minister for Integrity, declare, in accordance with section 35(3) of the Defamation Act 2005, that on and from 1 July 2025, the maximum amount of damages that may be awarded for non-economic loss in defamation proceedings is $500,000.
However, if aggravated damages are justified, the cap may be exceeded: Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [672], where the Court said:
Section 35(2) of the Defamation Act provides that the cap may be exceeded “if, and only if, the [C]ourt is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.
Under section 22(3), judges, not juries, determine the amount of damages in defamation claims. Unlike juries, judges must provide reasons for their decisions.
As the High Court explained in Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [89], appellate courts may only intervene if the trial judge applied an incorrect principle or exercised discretion in a manifestly unreasonable way. The Court said:
An appellate court may interfere with an award of damages for defamation if it appears that the trial judge proceeded upon a wrong principle in fixing the amount of damages, or if the court can infer from the amount adopted by the trial judge, or otherwise, that in some way the discretion to award damages must have miscarried.
In summary, the Defamation Act 2005 creates a statutory framework that balances the right to reputation with freedom of expression, while also ensuring that awards for non-economic loss are principled, proportionate, and subject to judicial oversight.
General Principles of Damages in Defamation Claims
Defamation damages are grounded in the principle of restitutio in integrum, aiming to restore the plaintiff to the position they would have occupied absent the defamation.
Courts assess compensation on a “once and for all” basis, without scope for future adjustments. At common law, reputational harm from defamatory publication is presumed without requiring proof of actual loss.
However, the introduction of section 10A has replaced this presumption with a statutory requirement to prove that the defamation caused, or is likely to cause, serious harm.
This reform introduces a threshold test that limits claims to those involving substantive reputational injury.
Restitutio in Integrum and the “Once and for All” Rule
A fundamental principle underpinning the award of damages in defamation claims is restitutio in integrum, that is, restoring the plaintiff, as far as money can do, to the position they would have been in if the defamation had not occurred.
This was authoritatively expressed in Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at [39], where Lord Blackburn stated:
… the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.
This principle was endorsed by the High Court in Haines v Bendall [1991] HCA 15 at [63] where Mason C.J., Dawson, Toohey and Gaudron JJ said:
The settled principle governing the assessment of compensatory damages, whether in actions of tort or contract, is that the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed.
Damages in defamation claims are assessed on a “once and for all” basis. As explained in Todorovic v Waller [1981] HCA 72, a plaintiff receives a single award to cover past, present, and future losses, without future adjustment.
Damage to Reputation: Presumption at Common Law
At common law, harm to reputation is presumed from the publication of defamatory material.
A plaintiff need not prove actual reputational damage. This position was set out in Ratcliffe v Evans [1892] 2 QB 524, and adopted by the High Court in Readers Digest Services Pty Ltd v Lamb [1982] HCA 4 at 11, where Brennan J said:
When the libel is proved, some general damage is presumed but there is no reason in principle why evidence should not be admitted to show the gravity of the damage done to a plaintiff’s reputation by the making of a defamatory imputation independently established.
In Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40 at 150, Windeyer J clarified that:
The injury done to a man’s reputation by a defamatory publication is not to be estimated solely by the interest which others may take in it … The damage may lie in the fact that the man’s right to his reputation has been unlawfully invaded.
The New South Wales Court of Appeal in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1367] reinforced that a plaintiff is entitled to damages merely for having been publicly defamed, provided that they had a settled reputation prior to the publication.
In Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [150], it was further clarified:
A person who is defamed does not get compensation for his or her damaged reputation, but receives damages because s/he was injured in his or her reputation, that is simply because s/he was publicly defamed. For this reason, compensation by damages operates in two ways – as a vindication of the plaintiff to the public and as consolation to him or her for a wrong done.
This approach reflects the principle that defamation law protects a right rather than compensating for measurable economic loss.
Serious Harm Requirement under Section 10A
The introduction of section 10A into the uniform defamation laws imposes a new threshold requirement for plaintiffs to prove that the publication has caused, or is likely to cause, serious harm to their reputation.
This provision represents a significant shift from the previous common law presumption of harm.
Unlike the presumption that arises under common law, section 10A creates a positive onus of proof.
Plaintiffs must now lead evidence demonstrating actual or probable reputational harm that is serious in nature.
This aligns Australian law more closely with recent developments in comparable jurisdictions that require a seriousness threshold to prevent trivial claims from proceeding.
The provision’s effect is to filter out minor or technical infringements that do not result in genuine reputational loss, thereby preserving the balance between free speech and reputation.
Read our complete guide here – Serious Harm Threshold in Defamation
Categories of Damages in Defamation Claims
Australian defamation law recognises distinct categories of damages in defamation claims, each serving a different compensatory or deterrent purpose.
These include general damages for non-economic loss, special damages for financial loss, aggravated damages in response to conduct, and exemplary damages in rare cases.
Courts apply these principles to reflect the seriousness of reputational harm and to ensure vindication for plaintiffs.
General Damages (Non-Economic Loss)
General damages in defamation claims compensate for hurt feelings, loss of reputation, and the need for vindication.
These are awarded “at large” and are not limited to specific pecuniary loss.
The process is not mathematical but inherently subjective. As stated by Lord Hailsham in Cassell & Co Ltd v Broome [1972] AC 1027 at [17]:
In actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element.
In Carson v John Fairfax & Sons Ltd & Slee [1993] HCA 31 at 115, McHugh J described the assessment as a matter that:
The assessment depends upon nothing more than the good sense and sound instincts of jurors as to what is a fair and reasonable award, having regard to all the circumstances of the case. That is why the damages are said to be “at large”.
Though juries once assessed general damages in defamation claims, modern defamation law in Australia requires that judges determine the award and provide reasons, even in jury trials: see Defamation Act 2005 s 22(3).
The High Court noted in Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [69] that:
Of course no two cases are exactly alike … One award is never really a precedent for another case. But we would I think be ignoring facts if we were to say that judges when asked to consider whether a particular verdict is beyond the bounds of reason – either excessive or inadequate – are unmindful of what was done in other cases, similar or dissimilar.
Damages may include components for:
- injury to feelings.
- reputational loss; and
- vindication in the eyes of the public.
In Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496, the Federal Court emphasised the importance of vindication, awarding Geoffrey Rush $850,000 for non-economic loss, separate from his substantial special damages.
Special Damages (Economic Loss)
Special damages in defamation claims are awarded where the plaintiff suffers actual financial loss as a result of the defamatory publication.
Unlike general damages, special damages must be strictly pleaded and proven.
This can include lost employment, cancelled contracts, or measurable income disruption.
The Federal Court in Rayney v State of Western Australia (No 3) [2022] WASCA 44 awarded special damages in defamation claims in addition to $600,000 in general damages, recognising a further $1.77 million loss stemming from the defamatory accusations that he murdered his wife.
Likewise, in Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496, special damages of $1.92 million were awarded for loss of professional opportunities and income caused by defamatory imputations of sexual misconduct.
In Oskouie v Maddox [2019] NSWSC 428, the court recognised reputational damage caused via defamatory content online and added $450,000 in special damages, reflecting actual financial loss due to the dissemination.
To succeed on a claim for special damages, plaintiffs must show that the defamatory matter was the material cause of the financial loss.
An unrelated novus actus interveniens must not break the causal chain.
Aggravated Damages in Defamation Claims
Aggravated damages may be awarded where the defendant’s conduct has exacerbated the harm suffered by the plaintiff.
This includes conduct that is insulting, malicious, or lacking remorse, either before or during the litigation.
The High Court in Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40 stated that:
… aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done.
In Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510, the plaintiff was initially denied aggravated damages as he did not give personal evidence of psychiatric harm.
However, on appeal, the New South Wales Court of Appeal held in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 that aggravated damages in defamation claims should have been awarded due to the repeated, serious, and unremorseful publication of paedophilia allegations.
The key elements justifying aggravated damages in defamation claims include:
- malicious or high-handed conduct.
- refusal to retract.
- cross-examination that humiliates the plaintiff.
- persistence in the defamation despite legal warnings.
In the Marsden case, the appeal court observed that the scale and repetition of the publication warranted reconsideration of both aggravated and exemplary damages.
Falsely accused of being a paedophile. Read our article here – False Sexual Allegations & Defamation Claims
Exemplary (Punitive) Damages
Exemplary damages, also called punitive damages, are awarded not to compensate, but to punish and deter especially egregious conduct.
They are rarely awarded in defamation but may be appropriate where the defendant has shown conscious disregard for the plaintiff’s rights, and where compensatory damages alone are inadequate.
In Rookes v Barnard [1964] UKHL 1 at [38], the court emphasised that exemplary damages in defamation claims serve:
In a case in which exemplary damages are appropriate, a jury should be directed that if, but only if, the sum which they have in mind to award as compensation (which may of course be a sum aggravated by the way in which the Defendant has behaved to the Plaintiff) is inadequate to punish him for his outrageous conduct, to mark their disapproval of such conduct and to deter him from repeating it, then it can award some larger sum.
In Australian law, exemplary damages in defamation claims are only awarded where permitted by statute or where the conduct justifies departure from compensatory principles.
In Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510, the trial judge declined to award exemplary damages, saying at [5263]:
Thus, it can be seen that the plaintiff’s award of damages will include no component for exemplary damages, aggravated damages, or damages for psychiatric injury.
However, the Court of Appeal held that such an award could be justified for conduct outside New South Wales.
The criteria for exemplary damages include:
- conduct involving conscious wrongdoing in contumelious disregard of the plaintiff’s rights.
- improper motive such as profit or malice.
- persistence in falsehoods despite knowledge of their falsity.
Exemplary damages are additional to general and aggravated damages in defamation claims but must not overlap or result in double compensation.
Key Factors Affecting the Assessment of Damages
The assessment of damages in defamation claims is not based on a formulaic approach.
Instead, it involves a holistic evaluation of numerous factors that determine the seriousness of the harm suffered and the appropriate level of compensation or vindication.
Courts consistently consider the gravity of the imputation, the extent of the publication, the defendant’s conduct, evidence of harm, and the need for vindication.
Gravity of the Imputation
The seriousness of the defamatory accusation is a central factor in the assessment of damages in defamation claims.
Courts consider how seriously the imputation affects the plaintiff’s moral standing, professional integrity, or personal character.
In Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510, imputations accused the plaintiff of paedophilia.
The court considered these the “worst kind” of defamatory imputations at [5266], and awarded substantial damages:
The gravity of the false imputations, which I consider to be the worst kind, is taken into account.”
In Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496, the imputation that Geoffrey Rush was a “sexual predator” was deemed especially serious because it attacked both his professional and personal reputation.
The court awarded $850,000 in general damages in defamation claims, finding at [787], that:
The relevant defamatory imputations in this case were unquestionably extremely serious. That almost is self-evident and requires no elaboration.
The more damaging the imputation to the plaintiff’s honour or profession, the higher the award of damages will likely be.
Read our article here on False Sexual Allegations & Defamation Claims
Extent of Publication and Reach
The broader the dissemination of the defamatory material, the greater the likely harm to the plaintiff’s reputation.
Courts assess the number of recipients, the medium used, and the reputational damage in relevant circles (e.g. the plaintiff’s profession or community).
In Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510, the publication occurred on widely broadcast television programs with large viewing audiences. The trial judge specifically acknowledged at [5266]:
The extent of the publication in each case was very great in terms of the viewing audiences and the perpetuation of the libels by reason of the issues litigated; this component, I stress, is on an ordinary compensatory basis.
In Barilaro v Google LLC [2022] FCA 650, the defamatory material was disseminated via YouTube, reaching hundreds of thousands of viewers.
The widespread nature of the publication contributed to an award of $675,000 in general damages in defamation claims.
The mode and reach of the defamatory communication—particularly in the digital era—greatly influence the award of damages.
Read our article here – Social Media Defamation – Complete Guide
Conduct of the Defendant Before, During and After Publication
The defendant’s behaviour throughout the defamation matter, before, during, and following publication, is a crucial factor.
Courts consider whether the defendant acted maliciously, refused to apologise, repeated the imputation, or aggravated the plaintiff’s injury during litigation.
In Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510, the trial judge noted that the defendant repeated similar imputations more than a year after the original broadcast.
Despite an application for an injunction, they proceeded with another broadcast. The court stated at [5266]:
The extent of the publication in each case was very great in terms of the viewing audiences and the perpetuation of the libels by reason of the issues litigated; this component, I stress, is on an ordinary compensatory basis.On appeal, the Court of Appeal found that the trial judge erred in not awarding aggravated damages given the defendant’s conduct.
In Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, the court held that damages in defamation claims should reflect the conduct of a publisher who persisted in defamatory publication without contrition.
Malicious or indifferent behaviour by a defendant can escalate an ordinary compensatory award and support additional aggravated or even exemplary damages.
Vindication and Public Perception
The goal of vindication plays a critical role in defamation damages.
The award serves not just to compensate, but also to publicly affirm the plaintiff’s innocence and restore their standing.
This is particularly important when the imputation touches upon integrity, morality, or professionalism.
As the court stated in Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510:
The gravity of the false imputations, which I consider to be the worst kind, is taken into account and (e), accordingly, the requirement for vindication is high indeed. It is important that no element of punishment intrude and that account be taken of the value of money. In the end, in this case, the plaintiff having been injured in his good name, vindication as a purpose of the award, predominates.
Similarly, in Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496, the court held at [788]:
The award of damages must be sufficiently high to vindicate Mr Rush’s reputation.
If the defamatory matter has been widely published, then a higher award may be required to ensure that the plaintiff’s name is properly cleared in the same public arena where it was tarnished.
Limitations and Caps on Damages in Defamation Claims
In modern Australian defamation law, damages—particularly for non-economic loss—are not entirely at large.
The Defamation Act 2005 introduced statutory limitations to restrain excessive awards and ensure consistency across jurisdictions.
The cap applies to general damages (for hurt feelings and reputational harm), while special, aggravated, and exemplary damages remain subject to judicial discretion.
Statutory Caps on Non-Economic Loss (s 35 Defamation Act)
Section 35(1) of the Defamation Act 2005 sets a maximum cap on damages for non-economic loss. It says:
The maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250,000 or any other amount adjusted in accordance with this section from time to time (the “maximum damages amount” ) that is applicable at the time damages are awarded.
In the Queensland Government Gazette dated Friday, 6 June 2025, the amount was set for non-economic loss as $500,000.00.
This means that even if a defamatory imputation is severe, the amount awarded for general damages is limited to a statutory ceiling unless aggravated damages justify an uplift beyond the cap.
For example, in Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [488], the court discussed the distinction between capped general damages and uncapped aggravated components:
The Defamation Act 2005 (NSW) includes a “cap” for damages. That cap is currently just shy of $400,000 [$500k now]. The cap does not, however, apply where an applicant establishes that he or she is entitled to aggravated damages.
The legislation recognises that damages for hurt feelings and loss of reputation, although awarded at large, must be kept within a principled framework.
The statutory cap provides a reference point to maintain proportionality across defamation cases and promote predictability.
Adjustments and Indexation of the Cap
The statutory cap on general damages in defamation claims is indexed annually, typically in line with changes to average weekly earnings or other economic indicators.
This ensures that the maximum amount retains its real value over time.
In the Queensland Government Gazette dated Friday, 6 June 2025, the amount was set for non-economic loss as $500,000.00.
This indexed cap aligns defamation awards more closely with those under personal injury legislation.
Judicial Guidance vs Jury Awards
Historically, juries assessed defamation damages, leading to highly variable and often excessive awards. This practice has largely been abolished.
Today, judges determine the amount of damages in defamation claims and must provide written reasons. This approach promotes consistency, transparency and accountability.
As observed in Carson v John Fairfax & Sons Ltd & Slee [1993] HCA 31 at [44], McHugh J famously remarked on the unpredictability of jury awards:
No doubt the rough-and-ready process by which juries assess damages in a defamation action is not one which appeals to the many sophisticated minds of the spreadsheet generation.
He continued, noting that:
There are no columns and rows into which the components of the verdict can be conveniently placed… The assessment depends upon nothing more than the good sense and sound instincts of jurors.
The problems with jury assessments became apparent in several high-profile cases.
In Carson, the initial jury awarded $600,000, but the NSW Court of Appeal set this aside.
A second jury awarded $1.3 million, which again prompted concern about proportionality.
Today, even in jurisdictions where juries remain for liability determinations, section 22(3) of the Defamation Act 2005 provides that only the judge may determine the amount of damages.
In Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [89], the court confirmed that appellate review of a judge’s damages award is only permitted where:
it appears that the trial judge proceeded upon a wrong principle in fixing the amount of damages, or if the court can infer from the amount adopted by the trial judge, or otherwise, that in some way the discretion to award damages must have miscarried.
The shift from jury-based to judge-determined damages has improved doctrinal clarity and facilitated appellate supervision of awards, aligning the practice of defamation law with broader civil litigation standards.
Reducing or Increasing Damages in Defamation Claims
The assessment of damages in defamation claims is influenced by both mitigating and aggravating factors.
The defendant’s conduct – before, during, and after publication—can significantly increase the award, especially if it exacerbates harm.
Conversely, responsible conduct or remedial action may reduce liability.
The plaintiff’s failure to provide evidence of actual harm may also constrain the amount awarded.
Mitigation by Defendant (e.g. Apology, Correction)
Courts consider whether the defendant took steps to reduce the harm caused by the publication.
A prompt apology, correction, or withdrawal of the defamatory material can demonstrate contrition and lead to a reduction in damages in defamation claims.
This principle aligns with the broader common law doctrine of mitigation, where a defendant may limit liability by showing they attempted to remedy the damage caused.
This logic is supported by analogy with negligence cases, where a subsequent event can break the chain of causation if it is “a new and independent cause.”
In negligence law, this principle is articulated as novus actus interveniens, where a new event interrupts the causal chain.
This concept is relevant when evaluating whether a defendant’s mitigating action (such as issuing an apology) has meaningfully reduced the damage done to reputation.
In practice, courts will examine:
- Whether the apology was timely and genuine.
- Whether the correction was prominently published.
- Whether the defendant ceased repeating the defamatory matter.
An effective and early apology may indicate that the harm was not aggravated and can serve as a key mitigating factor in reducing damages.
Aggravation by Defendant’s Conduct
Conversely, the defendant’s conduct can increase the award of damages in defamation claims where it adds insult to injury or exacerbates the harm suffered by the plaintiff. This includes behaviour such as:
- Repeating the defamatory statement.
- Failing to apologise or retract.
- Pursuing a malicious defence.
- Conducting humiliating cross-examination.
In Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510, the defendant broadcast a second defamatory program after the plaintiff sought an injunction. The court noted:
The gravity of the false imputations … the extent of the publication … and the perpetuation of the libels … [are] taken into account.
Despite this, the trial judge declined to award aggravated damages, largely because the plaintiff (Marsden) did not provide personal evidence of psychiatric harm.
However, the NSW Court of Appeal later found this to be an error in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419. The court held that:
- Aggravated damages should have been awarded due to the deliberate repetition of serious allegations.
- The absence of remorse and the timing of the second publication increased the plaintiff’s harm.
This appeal judgment confirmed that aggravated damages are appropriate when the defendant’s conduct displays conscious disregard for the plaintiff’s rights or worsens the reputational harm.
Absence of Mitigating Evidence by Plaintiff
While general damages in defamation are awarded “at large”, courts still assess the evidentiary foundation of the claim.
If a plaintiff fails to present evidence of emotional or reputational harm, the damages may be reduced accordingly.
In Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510, the trial judge expressly stated at [5266]:
A sum for injury to feelings … is to be modest in the absence of subjective evidence from the plaintiff.
Although other witnesses testified to Marsden’s suffering, his decision not to give evidence personally led the court to limit the amount awarded for emotional distress.
The judgment also declined to include psychiatric damages, as the claim was not sufficiently supported.
The judgment illustrates that even in serious cases, damages can be curtailed where the plaintiff does not properly substantiate the nature and extent of the harm. Courts consider:
- The plaintiff’s testimony (or lack thereof).
- Any expert medical evidence (such as psychiatric reports).
- Corroborating witnesses regarding loss of reputation or social standing.
Ultimately, the absence of subjective and clinical evidence can diminish the persuasive force of the claim and constrain the compensatory amount.
Leading Case Studies and Benchmark Awards
Australian courts have awarded significant damages in defamation claims, particularly where serious reputational harm, wide dissemination, or aggravating conduct is proven.
Recent decisions reflect the evolving nature of defamation in the digital age, with social media, online platforms, and traditional media all being scrutinised for the extent of their role in reputational harm.
Highest Defamation Damages Awards in Australia
The highest general damages awards in Australia under the Defamation Act 2005 reflect findings of grave imputations, usually involving allegations of sexual misconduct, criminality, or professional negligence.
In Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496: $850,000 general damages were awarded to actor Geoffrey Rush for allegations portraying him as a sexual predator. This was in addition to special damages of $1.92 million.
The defamatory meaning was found to be “an extremely damaging attack” on his character, with general damages in defamation claims reflecting the gravity of the imputation and the need for vindication.
In Wagner v Harbour Radio Pty Ltd [2018] QSC 201 a Queensland businessman received $850,000 in general damages for accusations that he was responsible for deaths during the Grantham flood and had engaged in a cover-up. The court noted the serious and baseless nature of the imputations.
In Barilaro v Google LLC [2022] FCA 650 a former NSW Deputy Premier John Barilaro was awarded $675,000 in general damages for YouTube videos that accused him of corruption and perjury. The material was published widely and remained accessible despite complaints.
The courts consistently assess:
- the reach of the content.
- the repetition and longevity of publication, and
- the degree of malice or recklessness involved.
For instance, in Barilaro v Google LLC [2022] FCA 650, the defendant continued to publish offensive content after formal legal notice, which contributed to the size of the award.
Media Outlet Case Outcomes and Trends
Mainstream media defendants—including television, newspapers, and radio—continue to attract significant liability for defamatory content, particularly where allegations are untrue, unverified, or recklessly published.
Comprehensive Defamation Damages Table
Strategic Considerations for Plaintiffs
In the modern Australian defamation landscape—especially following the introduction of the serious harm threshold under section 10A of the Defamation Act 2005—plaintiffs must adopt a strategic, evidence-based approach to maximise their prospects of success.
From the outset, it is vital to assess the seriousness of the alleged defamatory material, gather corroborative evidence, and be prepared to demonstrate reputational and emotional harm.
The following are essential strategic considerations for any prospective defamation claimant.
Proving Serious Harm Post-Reform
The introduction of section 10A imposes a threshold requirement that plaintiffs must prove that the defamatory publication has caused, or is likely to cause, serious harm to their reputation.
This reform replaces the former presumption of harm under common law and now requires positive proof of a reputational impact.
This shifts the burden significantly. No longer can plaintiffs simply rely on the defamatory nature of the statement itself—they must now provide affirmative evidence of actual or probable harm. This may include:
- Evidence of public reaction or community perception.
- Social, professional, or personal consequences.
- Demonstrable decline in esteem or standing.
This change makes strategic evidence gathering essential from the outset, as courts will scrutinise whether the harm is “serious” rather than “trivial or technical”.
As clarified in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, while serious imputations such as allegations of paedophilia may inherently suggest harm, a court must still consider the plaintiff’s actual standing prior to publication and any real-world impacts resulting from the publication.
Best Practices in Evidence Gathering
To succeed in a defamation claim post-reform, plaintiffs must assemble a comprehensive evidentiary foundation that supports both liability and quantum.
Courts now require more than general assertions of damage—they expect supporting material that substantiates reputational loss, emotional injury, and the extent of dissemination.
Best practices include:
- Personal testimony.
- Corroborating witnesses.
- Medical evidence.
- Professional consequences.
- Media monitoring.
We will explain in more detail below.
Personal testimony
The plaintiff should give direct evidence of emotional distress, embarrassment, humiliation, or social stigma. In Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510, the trial judge noted the absence of subjective evidence from the plaintiff and awarded damages more conservatively:
“A sum for injury to feelings … is to be modest in the absence of subjective evidence from the plaintiff.”
Corroborating witnesses
Statements from colleagues, family, clients, or members of the community who can confirm the plaintiff’s decline in reputation or emotional well-being are critical.
Courts give weight to such third-party evidence in gauging real-world impact.
Medical evidence
Psychiatric or psychological reports that document distress, anxiety, depression, or trauma may justify a higher award and possibly aggravate damages in defamation claims .
Professional consequences
Proof of lost clients, cancelled contracts, or income disruption can justify special damages in defamation claims.
In Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496, the Federal Court awarded $1.98 million in special damages supported by expert actuarial and accounting evidence on lost film opportunities.
Media monitoring
Where applicable, plaintiffs should track the extent of publication, including views, shares, republication, and social media dissemination, especially in cases involving online defamation.
High reach will support the claim of widespread reputational harm.
Without such documentation, plaintiffs risk reduced awards or outright failure to meet the section 10A threshold.
Valuation of Reputational Loss
Valuing reputational loss is inherently complex because it lacks a direct monetary equivalent.
However, courts evaluate a range of qualitative and quantitative factors to arrive at a fair amount for general damages. These include:
- The gravity of the imputation.
- The reach and duration of publication.
- The plaintiff’s standing in the community or profession.
- The emotional impact and the need for vindication.
In Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [472]–[488], the court awarded $850,000 for general damages in defamation claims, observing that the imputation “conveyed an extremely damaging attack on Mr Rush’s character” and that “vindication” required a sum of that magnitude.
Importantly, a plaintiff’s existing reputation can either amplify or attenuate the impact of the defamatory material.
In Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, the Court noted that a plaintiff “with a known and settled reputation” is more vulnerable to reputational damage than someone with a history of controversy.
In light of these principles, plaintiffs should carefully consider:
- Whether their reputation was established and positive prior to the publication.
- How much exposure the defamatory content received.
- Whether the harm is serious, provable, and supported by real-world consequences.
Appellate Review and Damages Adjustment
Appellate courts in Australia play a critical role in maintaining consistency, proportionality, and legal principle in defamation awards.
While trial judges have broad discretion in assessing damages in defamation claims, that discretion is not absolute.
Where awards are excessive, inadequate, or based on errors of law or principle, appellate intervention is not only permissible but necessary to uphold the integrity of the judicial process.
Grounds for Appeal on Damages
Damages awards in defamation may be appealed on two principal grounds:
- Error of legal principle or fact—where the judge has misunderstood the law or misapplied the facts; and
- Miscarriage of discretion—where the amount awarded is so manifestly excessive or inadequate that it indicates a failure to exercise judicial discretion appropriately.
In Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [89], the New South Wales Court of Appeal confirmed:
The award of damages may only be disturbed on appeal if the appellant demonstrates that the trial judge acted on a wrong principle, or that the amount awarded is so large or so small that it can be inferred that the discretion has miscarried.
This test reflects a reluctance to disturb findings of fact and a presumption of judicial competence, but also provides a safety valve where an award departs from accepted norms.
The High Court in House v R [1936] HCA 40 at 505 famously stated that a discretionary judgment may be set aside when:
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so..
In defamation law, appellate courts apply these principles to ensure that damages in defamation claims reflect the gravity of the imputation, the nature of publication, and the evidence presented.
Miscarriage of Discretion vs Quantum Disputes
It is critical to distinguish between a miscarriage of discretion and a mere disagreement about quantum.
Appellate courts do not reweigh the evidence simply because a different figure may have been chosen.
Rather, they intervene where the award is “so excessive” or “so inadequate” that it suggests a fundamental legal or evaluative error.
In Carson v John Fairfax & Sons Ltd & Slee [1993] HCA 31, the trial judge awarded $600,000 in general damages, which the Court of Appeal set aside. A second jury awarded $1.3 million, which was again appealed.
The case illustrated the unreliable nature of jury-based assessments, with the High Court expressing concern about the lack of principled reasoning behind such high figures.
McHugh J, at 115, observed:
There are no columns and rows into which the components of the verdict can be conveniently placed. The assessment depends upon nothing more than the good sense and sound instincts of jurors as to what is a fair and reasonable award.
Because juries do not give reasons, appellate courts were left to speculate whether the award reflected actual reputational damage or emotion-driven punishment.
This reasoning contributed to reforms removing jury awards for damages and assigning that role to judges.
In contrast, judge-alone determinations—as now required by Defamation Act 2005 s 22(3)—permit appellate courts to evaluate whether the discretion has miscarried based on reasoning and findings.
For example, in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, the Court of Appeal found that the trial judge had erred by failing to award aggravated damages, despite serious and repeated defamatory allegations and unremorseful conduct by the defendant:
The trial judge erred in holding that in the absence of evidence of injury to feelings from the respondent he could not award aggravated damages for injury to feelings.
Thus, appellate courts will adjust awards where there is a demonstrable error in principle, or where the judge fails to give proper weight to material aggravating or mitigating factors.
Key Appeals in Australian Defamation Law
Several leading appellate decisions in Australia have clarified the permissible scope of damages and the role of the appeal courts in adjusting them. Notable cases include:
Carson v John Fairfax & Sons Ltd & Slee [1993] HCA 31
The High Court considered two successive jury awards—$600,000 and $1.3 million—and ultimately supported the view that appellate courts may intervene where damages are manifestly excessive.
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
The Court of Appeal overturned the trial judge’s refusal to award aggravated damages, finding that the defendant’s post-publication conduct warranted additional damages. This case is key in demonstrating how errors of omission can amount to miscarriages of discretion.
Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Reaffirmed the principles under House v The King and clarified that appellate courts will not substitute their own assessment of damages unless there is a clear failure to exercise judicial discretion properly.
Wilson v Bauer Media Pty Ltd [2018] VSCA 154
On appeal, the Victorian Court of Appeal reduced Rebel Wilson’s general damages from $650,000 to $600,000 and completely overturned her special damages of $3.9 million due to insufficient causation and speculative evidence. The judgment affirmed the need for concrete proof of economic loss, especially where the plaintiff is a celebrity.
Wagner v Nine Network Australia Pty Ltd [2019] QSC 284
Although not reversed on appeal, this case remains a benchmark in Queensland. It involved substantial general damages ($600,000) where the imputations involved grave misconduct and wide publication.
Rayney v State of Western Australia (No 3) [2022] WASCA 44
On appeal, the Western Australian Court of Appeal upheld $600,000 in general damages and confirmed the trial judge’s findings that murder imputations had devastating reputational consequences, justifying the high award.
These cases show that while appellate courts defer to trial-level discretion, they do so within clearly defined legal boundaries.
Where judges fail to apply the correct principles, or where awards are out of step with precedent and proportionality, the courts will act to recalibrate the outcome.
Key Takeaways – Damages in Defamation Claims
Damages in defamation law have undergone significant reform and clarification in recent years, especially following the Defamation Act 2005 and subsequent amendments.
The emergence of the serious harm requirement, the introduction of statutory caps on non-economic loss, and increasing judicial scrutiny on aggravating and mitigating factors have redefined how damages are assessed, argued, and awarded.
Historically, defamation law permitted large jury-based awards with minimal judicial guidance. That approach is now largely obsolete.
Courts today adopt a principled and structured method to quantifying damage, emphasising:
- The gravity of the imputation.
- The scope and reach of publication.
- The plaintiff’s standing and actual reputational harm.
- The conduct of the defendant, both before and after publication.
- The need for vindication and deterrence.
Judicial commentary reflects these changes. In Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496, Wigney J noted that general damages must:
reflect the fact that “the law should place a high value upon reputation and in particular upon the reputation of those whose work and life depend upon their honesty, integrity and judgment.
The High Court’s analysis in Carson v John Fairfax & Sons Ltd & Slee [1993] HCA 31 also remains relevant, particularly in highlighting the importance of reasoned judicial awards over emotion-driven jury assessments.
Courts now align defamation damages with modern values of fairness, proportionality, and evidence-based adjudication.
That alignment is seen in appeals like Ali v Nationwide News Pty Ltd [2008] NSWCA 183, where the Court reinforced that damages can be adjusted only when:
It appears the trial judge acted on a wrong principle or the award is so large or small that discretion must have miscarried.
In essence, the law has shifted from reactive to regulated, from symbolic to strategic.
Practical Tips for Litigants and Legal Professionals
For plaintiffs, lawyers, and publishers navigating defamation law today, strategic decision-making is crucial from the moment a potential claim arises.
Whether prosecuting or defending a claim, the following practical tips are essential.
Establish Serious Harm from the Outset
Since the introduction of section 10A, plaintiffs must prove that the publication has caused or is likely to cause serious harm to their reputation.
General allegations will not suffice. To satisfy this threshold, plaintiffs should prepare early evidence, such as witness statements, employer communications, loss of business, or social isolation.
Send a Good Concerns Notice
Sending a well-drafted concerns notice and encouraging a genuine offer to make amends can significantly influence the outcome of a defamation claim, particularly in relation to damages.
A clear and specific concerns notice allows the publisher to respond constructively before litigation, potentially leading to a timely apology, retraction, or correction.
If the publisher makes a reasonable offer to make amends, this may limit or even eliminate liability for damages if the offer is not accepted without justification.
Conversely, the court can use a failure to make or accept such an offer to adjust any damages awarded, especially aggravated damages, based on the parties’ conduct.
In this way, pre-litigation resolution efforts encourage efficient dispute resolution and strategically position a claimant to either resolve the matter early or strengthen their case for higher damages.
Substantiate Emotional and Reputational Loss
Courts expect subjective evidence of emotional injury and community impact.
Clients must be prepared to give evidence personally and support it with corroborating testimony and, where applicable, expert psychiatric reports.
Anticipate and Document Aggravation
Aggravated damages remain a powerful remedy when defendants conduct themselves with malice, recklessness, or indifference.
In Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, the Court increased damages due to repeated defamatory broadcasts and lack of remorse.
Practitioners should gather:
- Post-publication conduct.
- Refusal to apologise.
- Cross-examination tactics that aggravate harm.
Understand the Role of Vindication
Beyond compensation, defamation actions seek public vindication. Awards must be sufficient to restore the reputation.
In Barilaro v Google LLC [2022] FCA 650, $675,000 was awarded because the material was broadcast to a global audience and remained accessible:
The award must be sufficient to vindicate the plaintiff’s reputation in the eyes of the public.
Benchmark Against Comparable Cases
Use previous awards to calibrate expectations. For example:
- Rush: $850,000 general + $1.98 million special damages.
- Wagner: $850,000 general damages.
- Tavakoli: $530,000 general damages for online reviews.
- Wilson v Bauer Media: General damages reduced to $600,000 on appeal.
These cases provide context and help prevent overreaching claims or speculative pleadings that might be reduced on appeal.
Prepare for Appellate Scrutiny
Plaintiffs and defendants alike should expect appellate oversight. In Ali v Nationwide News Pty Ltd [2008] NSWCA 183, the court made clear that any award must be based on sound principle, not just emotion:
Only if discretion has miscarried will the award be overturned.
This reinforces the need for trial counsel to build a coherent evidentiary narrative, supported by law and fact, from day one.
Defamation damages are no longer wild terrain—they are governed by structure, evidence, and proportionality.
With a disciplined legal strategy, plaintiffs can obtain just compensation and meaningful vindication—while defendants, through timely mitigation, may limit liability.
Understanding this landscape is no longer optional—it’s the difference between winning and losing a defamation case in modern Australia.
Damages in Defamation Claims – FAQ
If you’ve been defamed or accused of defamation, understanding how damages are assessed is crucial.
This FAQ section answers common questions about compensation in Australian defamation cases, including how courts calculate damages, the types available, and recent legal changes.
Whether you’re a claimant or defendant, these answers offer clear, concise guidance on what to expect from a defamation damages award.
What are damages in a defamation claim?
Damages in a defamation claim compensate a person for harm to their reputation, hurt feelings, and any financial loss suffered. They aim to restore the injured party to the position they were in before the defamatory publication, known in law as restitutio in integrum. Damages may include general, aggravated, and special damages, depending on the circumstances.
What is the purpose of awarding damages in defamation cases?
The purpose of awarding damages in defamation is to vindicate the plaintiff’s reputation, offer consolation for distress, and deter the defendant and others from publishing similar defamatory material. The damages awarded reflect the seriousness of the defamatory statements and their impact on the plaintiff’s standing in the community.
Are damages in defamation presumed at common law?
Yes, at common law, damage is presumed once defamation is proven, meaning the plaintiff does not need to show actual loss. However, under modern Australian defamation law, this presumption is limited by statutory reforms like the serious harm threshold in section 10A of the Defamation Act 2005.
What is the “once and for all” rule in defamation damages?
The “once and for all” rule means a plaintiff must claim all their past and future loss from the defamatory publication in a single court proceeding. They cannot return later to claim more damages arising from the same publication. Courts calculate all foreseeable loss in one final award.
What are general damages in defamation?
General damages are awarded to compensate for non-economic harm, including loss of reputation, emotional distress, and hurt feelings. These damages are assessed by the court without requiring specific proof of loss and are capped by statute unless aggravated damages are justified.
What are aggravated damages in a defamation claim?
Aggravated damages may be awarded if the defendant’s conduct worsened the harm suffered by the plaintiff—for example, acting with malice, refusing to apologise, or conducting a hostile defence. These damages go beyond compensation and reflect the added insult or injury caused by the defendant’s behaviour.
What are special damages in defamation?
Special damages refer to specific, quantifiable financial losses suffered as a result of the defamatory statement, such as loss of business, employment, or contracts. These must be precisely pleaded and supported by evidence, such as tax records or profit and loss statements.
Are exemplary or punitive damages available in defamation?
Exemplary or punitive damages are rarely awarded in defamation cases in Australia. They are only granted in exceptional circumstances where the defendant’s conduct is so outrageous that it warrants punishment beyond compensation. Most jurisdictions discourage such awards unless permitted by statute.
Is there a cap on defamation damages in Australia?
Yes, under section 35 of the Defamation Act 2005, general damages for non-economic loss are capped. As of 2024, the statutory cap exceeds $450,000 but is adjusted annually. The cap does not apply where aggravated damages are awarded due to the defendant’s egregious conduct.
Can the damages cap be exceeded?
Yes, if the plaintiff proves they are entitled to aggravated damages—due to malice or hostile conduct—the statutory cap on general damages can be exceeded. The court will assess compensation based on the aggravated harm caused by the defendant’s actions.
What is the serious harm threshold in section 10A?
Section 10A of the Defamation Act 2005 requires the plaintiff to prove that the defamatory statement caused, or is likely to cause, serious harm to their reputation. This threshold must be met before any damages can be awarded and replaces the former presumption of harm.
How do courts assess general damages in defamation?
Courts assess general damages by considering factors such as the seriousness of the defamation, the size of the publication’s audience, the plaintiff’s reputation, the extent of publication, and the impact on the plaintiff’s personal and professional life. Awards must be proportionate to the harm caused.
Can an apology reduce defamation damages?
Yes, a genuine and timely apology may mitigate damages by demonstrating the defendant’s remorse and willingness to restore the plaintiff’s reputation. Courts may reduce the award of damages if an apology is offered early and sincerely.
Can refusing to apologise increase defamation damages?
Yes, refusing to apologise or showing hostility during litigation may increase damages by justifying aggravated damages. The court may see such conduct as compounding the original harm and seek to deter this type of behaviour through a higher award.
Can a defamation claimant receive compensation for emotional distress?
Yes, emotional distress is a core component of general damages in defamation. Plaintiffs may receive compensation for humiliation, hurt feelings, embarrassment, and anxiety caused by the defamatory publication.
Can corporations claim damages for defamation?
In most Australian states, corporations with ten or more employees cannot sue for defamation unless they are not-for-profit or can prove actual financial loss. If eligible, they may claim general and special damages, but not damages for hurt feelings.
Are damages different for online defamation?
While the legal principles are the same, online defamation often involves wider and faster publication, which may justify higher damages. Courts consider virality, permanence, and audience reach when awarding damages for defamatory material published on the internet or social media.
Is there a difference between damages for libel and slander?
Modern Australian law treats libel (written defamation) and slander (spoken defamation) the same. Both can attract damages if the serious harm threshold is met. Historically, slander required proof of special damage, but this distinction no longer applies under the Defamation Act 2005.
Can defamation damages be appealed?
Yes, defamation damages can be appealed if they are manifestly excessive or manifestly inadequate. Appellate courts apply principles from House v The King, intervening only when the trial judge’s discretion has miscarried. Appeals may also address legal errors in applying statutory caps or aggravating factors.
How do Australian defamation damages compare internationally?
Australian defamation damages tend to be higher than in the UK but lower than some US jurisdictions. Caps on general damages, the serious harm threshold, and the limitation on exemplary damages keep awards proportionate, although some high-profile Australian cases have attracted significant damages.
