Full case report
Wilson v Ferguson
Reference  WASC 15
Court Supreme Court of Western Australia
Judge Mitchell J
Date of Judgment 16 Jan 2015
Remedies – Injunction – Equitable compensation – Compensation for embarrassment, anxiety and distress
Costs – Indemnity costs
The plaintiff (P) and defendant (D) had been in a relationship, during the course of D had acquired photographs and videos of P naked and engaged in sexual activity. The relationship between them broke down and D posted 16 of the photographs and 2 of the videos on his Facebook page together with the comment. This made the photographs and videos available to his approximately 300 Facebook friends, including P’s work colleagues. P was soon informed of this by her friends. The publication of the media, particularly to her work colleagues, caused P to feel humiliated, distressed and anxious, to the extent that she felt unable to attend work and took leave without pay for almost 3 months.
- Did D’s conduct amount to a breach of confidence?
- If so, was P entitled to an injunction?
- Further, was P entitled to equitable compensation, including (a) compensation for her emotional distress and (b) aggravated damages?
- Was P entitled to costs on an indemnity basis?
1. D’s conduct was a breach of his equitable duty of confidence towards P. The intimate images clearly had the necessary quality of confidence about them. Further, the circumstances in which D had obtained the images were such as to impose upon D an obligation of conscience to maintain their confidentiality. D appreciated that the preservation of this confidentiality was clearly a matter of substantial concern to P. D had clearly misused the images by posting them on his Facebook page, and his motive was far from innocent – it was to cause embarrassment and distress to P.
2. There was no discretionary reason to deny P the injunctive relief which she sought. The past conduct of D gave rise to a reasonable apprehension that the conduct might be repeated.
3. Equitable compensation in Australian cases had, until recently, been awarded only to compensate for economic loss. P was unquestionably entitled to an award of $13,404 for her economic loss as a result of having to take unpaid leave. However, following recent authorities, it was also appropriate to award P equitable compensation for the damage she had sustained in the form of significant embarrassment, anxiety and distress. The award would take account of the fact that the impact of the disclosure on P was aggravated by the fact that the release of the images was an act of retribution and intended to cause harm to P. The award should also take account of the fact that P had not sustained any psychiatric injury, and its amount should not be disproportionate to amounts commonly awarded for pain, suffering and loss of amenity in tortious personal injury cases. An award of $35,000 (in addition to the economic loss of $13,404) would therefore be appropriate.
4. D’s failure to make certain admissions or concede P’s claim before the action was instituted did not increase the costs of P in establishing her case, and was therefore not so unreasonable as to justify the award of costs on an indemnity basis. Costs were awarded to P on the standard basis.
This case reflects recent developments in Australian law allowing damages for embarrassment, anxiety and distress to be awarded in equitable claims for breach of confidence;.The court noted that these were consistent with the development of the law in England & Wales, under the influence of the Human Rights Act 1998. The court also noted the need for the law to respond to new technology, including the widespread use of social media, and the ease and speed with which images can be distributed.
It is also interesting that the Australian court appears to have adopted the practice of ensuring that an award is not disproportionate to amounts commonly awarded for pain, suffering and loss of amenity in personal injury cases.
In England & Wales, as well as sustaining a breach of confidence/privacy claim, “revenge pornography” may soon also be a criminal offence under clause 33 of the Criminal Justice & Courts Bill, which is currently before Parliament.
Goldsmiths Lawyers for the Claimant; No appearance for the Defendant
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