Bauer still liable for aggravated damages but Rebel’s economic loss award slashed.

In Issue

  • Was it appropriate for the statutory cap on non-economic loss damages to be exceeded?
  • Was the economic loss award at first instance sustainable?

The Background

Bauer Media was found liable at first instance for defaming Rebel Wilson. She was awarded a record sum in damages, and Bauer appealed the quantum of that award to the Victorian Court of Appeal. The appeal therefore focussed on the appropriateness of the damages awarded.

The Issues on Appeal

On appeal, the court had to consider whether:

  • The trial judge’s award of $650,000 for non-economic loss, which exceeded the statutory cap for such damages, was appropriate.
  • The award of $3.9 million for economic loss was excessive.

The Decision on Appeal

Although the Court of Appeal reduced the non-economic damages award slightly from $650,000 to $600,000, it did hold that the judge, at first instance, was correct in determining that where aggravated damages should be awarded, that the statutory cap on non-economic loss damages can be exceeded.

The Court of Appeal also re-assessed the award for economic loss of $3.9 million, for loss of opportunity, and concluded that no award should be made. In short, the Court took the view that the evidence did not establish key inferences that founded the trial judge’s decision in this respect. More particularly, the Court of Appeal took the view that the evidence adduced by Ms Wilson was insufficient to establish that she lost the opportunity to obtain lead or co-lead movie roles in 2015 to 2016.

Implications for you

This decision is a good example of how, notwithstanding a defendant's liability, a Court must be sufficiently satisfied (on the balance of probabilities) that a claimant has lost something of real value before it will make an award of damages for loss of opportunity.