OTIS CAREY IS SUING NATHAN MYERS AND SURFING LIFE

Portrait by Richard Freeman

Otis Carey is a talented surfer, a brilliant representative for Indigenous Australian culture and a lovely man.He is succinctly in tune with his heritage and wears it with pride. He is also human, and humans must sometimes make choices. Otis recently made a choice with much gravitas.

Via legal backing, Otis has notified writer Nathan Myers and Surfing Life magazine that he has levied a lawsuit against them for defamation of character.

The amount he is seeking for emotional damages is $200,000.

Let’s back up a minute. In case you’re unaware of this whole bad trip, it all started when Myers wrote the following description of Otis in the March issue of Surfing Life:

“With his apeish face and cowering hair-curtains, I expect little more than Cro-Magnon grunts from his mouth. I am caught off guard by the clarity and eloquence of his speech.”

Otis was devastated by the description, having taken it as racially insensitive. “At this stage we don’t want to talk about it,” said Otis’ father, Chris, at the time. “Our concern is Otis’s wellbeing. We just have to support him.”

Surfing Life issued a formal apology, which can be read in full here.

It was reported that Otis spoke with Sydney Swans Player, Australian of The Year and all-round legendary Indigenous Australian representative, Adam Goodes. Goodes was called an ‘Ape’ by a crowd member during a football match last year. It was a young girl. She screamed it right at him from the crowd, he a player on the opposition team and her the ignorant child with intent to cause insult.

Intent.

We must ask what Nathan Myers’ intent was. Was it to simply describe his impressions, with no racial connotations? Or to cause harm to Otis’ character? Myers used the term ‘apeish’, a comparison that’s historically derogatory. The term was insensitive to Otis’ heritage, regardless of whether or not Myers intended it to be. But we must consider that perhaps Myers used it with no derogatory intent in mind.

After maintaining silence through the initial tabloid party, Myers recently penned an open letter to Otis on The Inertia, offering another apology, but also reminding Otis that he believed the word ‘apeish’ was a singularly poor choice in an otherwise complimentary article. And, let’s keep this in perspective: This is truly all about the word ‘apeish’, without which, there’d be no issue.

So, now it’s a legal matter. I spoke with a lawyer pal to try and find a little clarity in the claim of $200,000, an amount I initially felt was overwhelming large. What I discovered was that, in this case, the amount can’t be easily quantified. It’s an area called unliquidated damages. So, stay with me here…

It’s now hard to determine whether there are grounds for compensatory damages. The nature of quantifying compensatory damages would involve the plucking of a number from the ether, according to how hurt or wronged Otis feels. The question will involve a number of factors, like whether Otis has lost any contracts or directly lost money because of harm to his rep in this case. And, importantly, whether the remark: is likely to injure the reputation of Otis by exposing him to hatred, contempt or ridicule; would tend to make Otis be shunned or avoided; or has a tendency to lower Otis in the estimation of others.

There’s little to suggest a claim for aggravated damages. They’re usually linked with the maker of the statement (Myers and SL) conducting themselves in a poor fashion following the statement (like, failing to apologise, or failing to remove the remark from publication). Given that both Myers and SL have apologised repeatedly, profusely, and unreservedly, with the latter removing the line from their digital issue and website, it’ll be interesting to see where Otis’ lawyers take things.

Legally, and if it makes it so far, what it comes down to is a judge deciding on an amount that they feel compensates Otis for the remark being made.

$200k. That’s a real big hit for Surfing Life. That could ruin Myers’ life, and the life of his family. But, and forgive the brutality, those repercussions should have no bearing whatsoever on the outcome here. What it comes down to is whether Nathan Myers using a poorly-chosen word, and Surfing Life publishing it, and Otis Carey being offended by that word, is worth Otis receiving $200k. 

Otis, tail whipped in Wollongong beneath an energy conversion unit. Photo: Ian Bird