The reality of the new ‘serious harm’ element in defamation cases: Newman v Whittington  NSWSC 249
There is a new “serious harm” element (section 10A) of the uniform defamation legislation in effect in all States Territories of Australia, except for Western Australia.
The “serious harm” threshold was introduced as part of the Stage 1 Defamation reforms which came into effect on 1 July 2021. Plaintiffs in those jurisdictions must now also establish that any defamatory publication made on and from 1 July 2021 causes, or is likely to cause, serious harm to their reputation (serious harm test).
The effect of this is that the onus is on the plaintiff to prove serious harm in order to bring a successful action in defamation. Thus, there is now no need for the defendant to prove that the harm was trivial. Serious harm is subjective and to be assessed on a case-by-case basis on individual circumstances.
The case of Newman v Whittington  NSWSC 249 is the first Australian case to look at the new serious harm test.
Ms Newman brought defamation proceedings against Mr Whittington regarding 27 defamatory publications made on Facebook. Some of Mr Whittington’s publications were made after 1 July 2021, when the new serious harm test became effective. Thus, Ms Newman needed to be in a position to prove that the publications (after 1 July 2021) caused, or a likely to cause, serious harm to her reputation.
Sackar J looked to the United Kingdom, in particular, the case of Lachaux v Independent Print Ltd and another  UKSC 27, where serious harm was established by the plaintiff and it was held that:
- Serious harm is to be determined by actual facts about its impact;
- The plaintiff must prove, on the balance of probabilities, that the harm caused by the defamatory publication was or will be serious.
The UK Supreme Court had regard to the scale of the defamatory publication, the gravity of the statements made in those publications and the fact that those statements had come to the attention of at least one identifiable person in the UK, which the plaintiff knew. Thus, the UK’s decision provided some guidance.
Sackar J in the present case confirmed that serious harm would normally be determined before trial, unless special circumstances suggested otherwise, including costs implication and whether determining serious harm is linked to other matters that are the subject of the trial of the proceeding.
Sackar J held that the new serious harm element in Australia requires:
- a plaintiff to prove serious harm as a necessary element of the cause of action in New South Wales since the introduction of section 10A;
- Section 10A has the effect of abolishing the common law rule that upon the publication of a defamatory action, damage is to be presumed; and
- a plaintiff is now obliged to prove serious harm as a fact in every case.
Sackar J did not consider that the pleadings sufficiently articulated how the plaintiff suffered ‘serious harm’ and struck out those pleadings. He did grant leave to Ms Newman to amend and replead the relevant paragraphs.
Ms Newman therefore failed to prove the new serious harm test. However, the case did not call for an application of all the relevant principles to establishing serious harm. This is because Ms Newman’s
case was only conducted on the pleadings, with no evidence of the actual impact of the publication on her, as occurred in the UK decision.
Thus, the UK decision sheds some light on how serious harm may need to be established by an Australian plaintiff. That is, the actual facts and its impact on them, as well as showing that the words are inherently injurious to their reputation and caused serious harm. However, the precise manner of what a plaintiff must establish in order to prove serious harm, allowing them the ability to bring defamation proceedings, still is not yet clearly established in Australia.
Elit Lawyers by McGirr & Snell has over 60 years defamation experience acting on behalf of individual plaintiffs including high profile executives, parliamentarians, sporting and public figures and companies in respect of publication published in both electronic and traditional media forums.
Do not hesitate to contact Danielle Snell or Robert McGirr in relation to your defamation concerns.