Stephen Dank’s defamation claim for $10 million damages – A good press release, but what about the law

The Australian sports scientist Stephen Dank has been at the centre of recent media reports concerning his oversight of a supplements program to players at Essendon Football Club (a Melbourne AFL team). Last Sunday 10 February, his solicitors announced his plans to sue for defamation. The lawyers’ media release, reportedly entitled: “Defamation Claims for Ten Million Dollars”, foreshadowed multiple proceedings for defamation and injurious falsehood “against the media”, which would shortly commence in the NSW Supreme Court. Now that the press release has been issued, the barristers briefed and the statements of claim presumably having their final touches, one is entitled to ask, ‘where did this Ten Million Dollars’ come from?

Mr Dank’s defamation claim is said to be based on false allegations in the media that Mr Dank (and others) sold illegal drugs to sportspeople. Based on his lawyers’ press statement, it is also plain Mr Dank is looking for a record breaking win.

Ten million dollars is an awful lot of money in Australian defamation law. There is also no guarantee that if you bring multiple law suits, your financial gains will increase. A person sues for defamation because of the devastation, hurt feelings and stress caused by the publication of material likely to lower that person’s reputation in the minds of others. The aim is to ‘nail the lie’.

A defamation win will lead to compensation, but is rarely enough to put one on the BRW Rich List. This is because damages for hurt feelings are capped in Australia, and the outcome of related proceedings will be taken into account.

Last year, Mr Trkulja, an elder in the Serbian Orthodox Church in Springvale, successfully sued Google for defamation. Justice Beach upheld a jury finding that an automatic Google search result wrongly implied Mr Trkulja was a significant figure in the Melbourne criminal underworld. Mr Trkulja was awarded $200,000 which is a significant sum by defamation standards (noting his legal costs were probably a lot more). However, this was less than the $339,000 Victorian cap. The reason? Mr Trkulja had earlier sued Yahoo over the same issue, and won $225,000 on that occasion. Justice Beach decided that the earlier, Yahoo payment mitigated how much Google should also pay.

On this analysis, it would take many multiple proceedings and not much mitigation to arrive at ‘Ten Million Dollars’. Perhaps the availability of ‘aggravated damages’ is a possible path? However, this additional damages component assumes some particular misconduct by “the media”. Here, courts will often give defendants the benefit of the doubt.

It is certainly possible that the Ten Million Dollars is based on an assessment of Mr Dank’s economic loss, namely, his future employment prospects given the nature of the media attention. There is no cap on economic loss. However, it needs to be proved. One wonders how Ten Million Dollars could be calculated with such precision when the offending media attention occurred within days of the announcement to sue. For instance, economic loss might involve an estimation of the plaintiff’s lost earnings calculated over a period of time. Direct evidence of a lost business dealing or transaction as a result of the offending material can also be used to justify economic loss.

Further, within 24 hours of announcing his plans to sue, Mr Dank appeared on

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the ABC’s 7.30 television program to tell his side of the story. Whilst not strictly a ‘right of reply’ for media agencies other than the ABC, Mr Dank’s appearance may have had a neutralising effect on the offending imputations (and therefore any damages he might obtain).

It might be the case though, that Mr Dank’s lawyers will seek to justify Ten Million Dollars via their proposed claim of injurious falsehood, rather than defamation. The good news is that there is no cap on general damages for hurt feelings (assuming such damages are available at all under this head of claim). This means the need to prove economic loss will still remain, just like defamation law. To succeed under injurious falsehood, there’s also the added problem that one needs to prove more than the ‘lie’. The plaintiff must show the defendant was “actuated by malice”, which is by no means an easy task.

Whatever the case, if the matter gets to trial, the press release will have little probative value. The onus will be entirely on the plaintiff, if successful, to prove why such large dollars are justified.

As a general observation, many people have sued for defamation, later to regret it. Not because they won or lost, but because they realised months or even years afterwards that they remain locked in litigation when the public does not remember the original story anyway. It is always important to explain this at the outset to a person who is often, for complete justification, very upset by an offending publication and ready to sue. The wisdom of Dale Kerrigan from the movie The Castle makes particular sense here: “Mum said it was funny how one day you’re not famous, and the next day you are. Famous. And then you’re not again.”