Once the cause of action has been established, the law will presume both falsity of the material and damage to reputation. Accordingly, if a defendant fails either to raise an effective defence or refute the necessary elements, it then becomes a matter for the Court to assess the damages.
Damages may be:
- Non-economic (i.e. reputational only), the maximum amount awardable in respect of which in Western Australia is $478,500.00.
- Economic (e.g. loss of a business opportunity because people believe what has been said about you).
An award of damages in defamation serves three purposes:
- Compensation for injury to reputation;
- Vindication of your reputation; and,
- Redress of hurt feelings.
The Court will consider whether there are any matters that should be considered as to the mitigation of damage, including (most commonly):
- Whether an apology has been made: s. 38(1)(a).
- Whether the defendant has published a correction: s. 38(1)(b).
It is not always certain to predict your potential range of damages. A defamation lawyer will assist you by referring to previous cases involving similar circumstances or imputations to determine the range of potential amounts that you may be granted if successful.
A defamation lawyer may also assist you by identifying and implementing a course of action which places you in a strategically superior position to advance arguments in mitigation of damage.
For further information, read some of our articles.
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