Aggravated Damages Awarded to Doctor in Herald Defamation Case

 

On 11 July 2019, McCallum J of the Supreme Court of NSW handed down her judgment in O’Neill v Fairfax Media Publications Pty Ltd (No 2) [2019] NSWSC 655. The Court held that the Sydney Morning Herald and journalist Peter FitzSimons had defamed Dr John O’Neill in two articles and awarded damages in the sum of $385,000.

The articles concerned the events of a boxing match between Mr Anthony Mundine and Mr Danny Green in Adelaide in February 2017 (the Fight). The articles claimed that Dr O’Neill should have stopped the Fight for Mr Green’s safety after Mr Green was struck in the head by Mr Mundine.

Background Facts

In the first minute of the first round of the Fight, Mr Mundine struck Mr Green with a blow to the head, which was later ruled as a foul blow. The referee called Dr O’Neill, who was the official ringside doctor for the Fight, to examine Mr Green. Dr O’Neill ruled out injury or concussion and the Fight continued. In total, it took Dr O’Neill approximately 50 seconds to form the view that Mr Green was not concussed.

After the Fight, Dr Lou Lewis, who attended the Fight with Mr Green but was not the official ringside doctor, contacted the media and voiced his views that the Fight should not have continued because Mr Green was concussed.

Mr FitzSimons of the Sydney Morning Herald published an article under the headline “Stop the fight! Please, stop the fight!” which included allegations that: ‘a bloke with a bleeding brain was allowed to continue’; ‘there was in demonstrable fact, such obvious brain damage’; and Dr Lewis had no doubts that Mr Green was concussed and wanted the Fight to be stopped. The online version of the article claimed that ‘Danny Green suffered bleeding on the brain… and yet they let the fight go on’.

On 8 September 2019, Dr Lewis publicly apologised to Dr O’Neill for defaming him and acknowledged that he did not assess Mr Green and therefore could not determine whether he was concussed.

Defamatory Imputations

Dr O’Neill claimed that Mr FitzSimons’ articles were defamatory in that they contained the imputations that: he incompetently allowed Mr Green to continue fighting despite Mr Green suffering from bleeding on the brain; he negligently endangered Mr Green’s life by allowing him to continue fighting when he had brain damage; and he was reckless in failing to stop the Fight even though Mr Green had a concussion.

Defence

The Defendants denied that that the articles conveyed the defamatory imputations. One of the arguments raised was that readers would have known that the ability to stop a fight rested with the referee and not Dr O’Neill. It was also argued that the critique in the article was directed at the boxing community generally. The Court did not accept those arguments.

Having failed to establish that the articles did not convey the defamatory imputations, the Defendants relied on the defences of honest opinion and justification.  Honest opinion is a defence to a defamatory publication if it proves three elements:

·       the matter was an expression of opinion rather than a statement of fact;

·       the opinion is related to a matter of public interest; and

·       the opinion is based on proper material.

On the first element, McCallum J found that the imputations were conveyed as fact, not opinion. On the element of public interest, there was no dispute that any opinion expressed in relation to the safety of a sport could be considered in the public’s interest. On the third element of proper material, the defence again failed, as McCallum J was satisfied that the ordinary reasonable reader would understand the assentation of Mr Green having “a bleed on the brain” to be intended by Mr FitzSimons to be part of the basis of his opinion. There was no attempt to prove either position to be true, which was considered by McCallum J to be critical in the failure to prove this element.

The Court also went on to find that the defence of justification also failed. To have been successful, the Defendants would have had to prove it to be substantially true that:

·       Mr Green had in fact ’suffered bleeding on the brain’,

·       he ‘obviously had brain damage’; and

·       he ‘obviously had a concussion’.

McCallum J considered the footage from the Fight, expert evidence, the MRI report conducted the week after the Fight, and the post-match report completed by Dr Lewis and concluded that these imputations could not be said to be substantially true.  Further, it was held that diagnosis of concussion is a clinical diagnosis and Dr O’Neill who examined Mr Green on the night, was in the best position to carry out that assessment.

Outcome

McCallum J held that Dr O’Neill was successful in establishing that he was defamed by the publications. Damages were awarded to provide consolation for hurt to feelings, compensation for damage to personal and professional reputation and vindication of Dr O’Neill’s reputation.

Her Honour accepted that the upper range of damages should be awarded for such severe accusations against a professional and their competency in their field of work. Her Honour was also satisfied that aggravated damages were warranted as the Defendants had failed to contact Dr O’Neill before publishing the article. Further, the Defendants not only failed to apologise for the ‘bleeding on the brain’ accusation which was later voluntarily removed from the articles, but also maintained the defence of justification for that imputation at trial.

Damages were awarded in the amount of $385,000. This sum was reached by awarding a sum of $350,000 in general damages, with the addition of 10% for aggravated damages.

A copy of this case can be found here.

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