Serious Harm – a Key Consideration in Defamation Cases

Prospective Plaintiffs seeking to vindicate their reputation in an action for defamation must now consider the threshold concept of serious harm. This ‘serious harm element’ has raised many pertinent questions. Namely, does this mean it is harder for plaintiffs to make a claim for defamation? Or is it easier for individuals spreading defamatory material to get away with it? The recent case of Zimmermann v Perkiss has brought these questions to light.

The “serious harm” test in the Australian defamation context

The “serious harm” threshold element was first introduced into the New South Wales Defamation Act 2005 (Defamation Act) as a part of a series of defamation law reforms, which took place in 2021 in most states. The new element found in 10A of the Defamation Act (and section 122A of the Civil Law (Wrongs) Act 2002 (ACT) (Civil Law (Wrongs) Act) and centres on determining whether the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person. The reform was introduced as a result of growing concerns that defamation law was increasingly being used for “trivial, spurious and vexatious backyard claims,” and that the “costs and stress of defending a defamation claim had become prohibitive for private individuals.”

Notably, at least in the ACT, defamation legislation (section 139D of the Civil Law (Wrongs) Act, now repealed) had provided the ‘Defence of triviality’ being that it was ‘a defence to the publication of a defamatory matter the defendant proves the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.’ The new “serious harm” threshold means that it is now on the plaintiff to prove that serious harm has been suffered, rather than for the defendant to prove the circumstances of the publication were trivial. In addition, the legislation provides that a judicial officer may determine if the serious harm element has been established at any time before the trial commences, or during the trial itself.

Zimmermann v Perkiss

The recent case of Zimmermann v Perkiss concerned a series of Facebook Messenger messages sent by the Defendant, Ms Perkiss, who worked at a dog salon, to the owner of a nearby canine operation, Ms McPherson. The messages related to the past conduct of McPherson’s new employee, Ms Zimmermann (the Plaintiff). In applying the serious harm test, the Court considered whether the messages had adversely effected Ms McPherson’s opinion of the Plaintiff, and thus whether her reputation had suffered serious harm as a result of the messages. Furthermore, the Judge considered the Defendant’s submission that any adverse effect was short lived, insignificant and did not cause serious harm.

The case shared similarities with a decision of the UK Supreme Court where it was determined “serious harm must be proved by evidence of the actual impact of the publication,” and thus damage is not to be presumed but proved on the facts.

The Court in Zimmermann v Perkiss found that by Ms McPherson’s response, she was undeniably concerned by the messages but “having and continuing to have, a high regard for the plaintiff as a valued employee…,” and a suspicion that the Defendant was “lashing out because the plaintiff had gone to work for her instead.” The Court found she had “not suffered any harm in Ms McPherson’s eyes at all” and was not satisfied that the Plaintiff had “established she had suffered anything, beyond the distress and anger she felt at being falsely accused of theft; however, that distress cannot be equated with evidence of serious harm, which must be to reputation.”

As a result, the Court concluded the Plaintiff had not satisfied the serious harm test under section 10A and the proceedings were dismissed, though the issue of costs was reserved.

Key takeaways

The decision in Zimmermann v Perkiss is important as one of the first cases following the 2021 defamation law reforms to bring the new serious harm consideration to life. Importantly, the decision suggests that the “serious harm” threshold may assist with the early disposal of “backyard” claims and disputes over an alleged publication of defamatory material to a limited audience, where it is evidence that there is insufficient harm to the individual’s reputation. The case, in applying the section 10A serious harm consideration, may also assist with efficiently disposing of cases which may otherwise involved low damages and disproportionately high costs at an early stage.

While it remains to be seen how Australian courts will continue to apply the “serious harm” element consideration, the Court’s application of it in Zimmermann points towards the benefits of the reform.

For further information, please do not hesitate to contact our Litigation and Dispute Resolution team for further advice on 02 6274 0999.

Join our mailing list

Get in touch