David Mcnicol v Australian Capital Territory Health Authority [1988] ACTSC 55 (23 September 1988)

SUPREME COURT OF THE ACT

DAVID McNICOL v. AUSTRALIAN CAPITAL TERRITORY HEALTH AUTHORITY
S.C. No. 945 of 1986
Defamation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Defamation - Plaintiff paediatric orthopaedic surgeon - Imputations of callousness and preference for self-interest - Defences of qualified privilege and justification - Malice - Falsity of material published - Assessment of damages - Damage to reputation.

Gorton v. Australian Broadcasting Commission (1973) 1 ACTR 6.

Readers Digest Services Pty Limited v. Lamb [1982] HCA 4; (1982) 150 CLR 500.

Jenoure v. Delmege (1891) AC 73.

Toogood v. Spyring (1834) 1 CM&R 181: 149 ER 1044.

Howe v. Lees [1910] HCA 67; (1910) 11 CLR 361.

Coward v. Wellington (1836) 7 C&P 531: 173 ER 234.

Mowlds v. Fergusson [1940] HCA 38; (1946) 64 CLR 206.

Adam v. Ward (1917) AC 309.

Horrocks v. Lowe (1975) AC 135.

Ratcliffe v. Evans (1892) 2 QB 524.

Gatley on Libel and Slander, 8th Edn.

HEARING

CANBERRA
23:9:1988

ORDER

There be judgment for the plaintiff in the sum of $52,600.

The defendant pay the plaintiff's costs of and incidental to the action, those costs to be taxed.

DECISION

This is an action for damages for defamation. The plaintiff is and was at all material times an orthopaedic surgeon specialising in paediatric orthopaedics. The defendant (the Authority) is a body corporate established under the Health Authority Ordinance 1985. Part of s.6(1) of that Ordinance provides:-
"The functions of the Authority are -

(a) to provide and conduct health services;
(b) to provide, in accordance with
agreements entered into by the
Authority, financial or other assistance
to persons or bodies, being persons or
bodies approved by the Authority for the
provision or conduct by such persons or
bodies of health services, including
financial assistance for the provision
and maintenance of buildings, equipment
and facilities used, or to be used, in
connection with the provision or conduct
of health services;"

2. The Authority publishes a Staff Bulletin. On 6 March 1986 it published Issue No.9/86 of that Bulletin (the staff bulletin). On p 3 appeared an article (the article) under the heading "ADAM COLLINS' OPERATION". It read:-

1. "A Health Authority spokesman, Mr Maurice
Sexton, said that although Royal Canberra
Hospital has a limited amount of elective
surgery at present, the opportunity is there
for the private specialist concerned to
arrange surgery for Adam Collins (Canberra
Times, 20 February 1986) five weeks earlier
than 11 April.
2. The situation is that nurse staffing
shortages and a high number of emergency
admissions have meant that the hospital has
had to cancel most elective surgery next
week.
3. 'The specialist who is to operate on Adam
Collins then chose to cancel Adam's surgery,
in preference to others on his list for that
day, and to not reschedule it until 11
April,' said Mr Sexton.
4. 'That surgeon, who is employed on a
fee-for-service basis, has a regular number
of theatre sessions at the hospital. In
booking patients into these sessions the
hospital normally agrees to follow his
instructions for each patient.
5. In this particular case, the specialist
completed the request for admission form on
28 November 1985, asking for the patient to
be treated as an elective admission and to be
booked in on 28 February.
6. The hospital, because of its staffing
situation was unable to meet this request as
beds at present are limited and theatre
bookings are made only about a week in
advance,' Mr Sexton said.
7. 'Consequently, the specialist was informed on
Monday morning (17 February) that of the
three people - one adult and two children -
he wished to operate on, on 28 February, the
hospital could only accept the adult and one
child.
8. According to hospital practise (sic) it was
left to the specialist to decide which case
should have priority. He later advised that
Adam Collins' surgery would not go ahead and
that Adam would wait until 11 April.
9. Normally, when surgery is cancelled it is
hospital practise (sic) to reschedule it in
the next available session. In this case
that is on 7 March,' said Mr Sexton.
10. He added that it was not until 19 February
that the hospital even became aware of this
patient's particular circumstances.
'Presumably these circumstances would have
been known to the doctor.
11. After learning of these circumstances, the
hospital sought advice from the surgeon to
see whether he thought this case was more
urgent than other waiting cases. He has not
responded.'"

The numbers shown beside the paragraphs did not appear in the article and have been placed there for identification purposes only.

3. The article was a copy, slightly edited, of a media release (the press release) which the Authority had issued on 20 February 1986. It differed in the 1st, 10th and 11th paragraphs from the press release. Those paragraphs read originally as follows:-

"A Health Authority spokesman, Mr Maurice
Sexton, said today that although Royal
Canberra Hospital has a limited amount of
elective surgery at present, the opportunity
is there for the private specialist concerned
to arrange surgery for Adam Collins (Canberra
Times, 20 February 1986) five weeks earlier
than 11 April."
"He added that it was not until yesterday
that the hospital even became aware of this
patient's particular circumstances.
'Presumably these circumstances would have
been known to the doctor.
After learning of these circumstances, the
hospital sought advice yesterday from the
surgeon to see whether he thought this case
was more urgent than other waiting cases. He
has not responded."

The differences are underlined.

4. It will be seen that the attempts at editing, obviously designed to ensure that the article should speak as at the date of its publication rather than as at the date of the press release, failed in the 10th and 11th paragraphs since those paragraphs could only be understood to mean, having regard to the date of publication of the article, that it was not until 5 March 1986 that the hospital became aware of the patient's circumstances and that thereafter, on the same day, the hospital sought advice from the surgeon to see whether he thought the case of Adam Collins was more urgent than other waiting cases.

5. The plaintiff was, as the Authority admitted, the surgeon concerned. On 16 June 1986 he commenced his action by writ of summons. He contended initially that the following imputations arose from the natural and ordinary meaning of the article:-

(a) that he, as a specialist medical practitioner, was
callous and/or insensitive to the needs of his
patients;
(b) that he was prepared to cause and/or permit
sufferings by his patients to make a political
point; and
(c) that he, in cancelling the surgery for the patient
referred to in the matter complained of, acted out
of material self-interest rather than in the
interests of the patient.

6. He subsequently amended his particulars of imputations to allege only the following:-

(a) that he, as a specialist medical practitioner, was
callous and/or insensitive to the needs of his
patient;
(b) that he, in cancelling the surgery for the patient
referred to in the matter complained of, acted out
of material self-interest rather than in the
interests of the patient.

7. By its defence as amended pursuant to leave granted on 1 March 1988, the Authority:-

(a) denied that the matter complained of had any
defamatory meaning,
(b) raised the defence of fair comment (it was
abandoned at the trial),
(c) pleaded qualified privilege, alleging that the
matter complained of was published pursuant to a
duty owed to the persons to whom it was published
to publish it, those persons having an interest in
receiving it, or pursuant to a common interest
with the persons to whom it had been published,
(d) pleaded justification.

8. The plaintiff gave evidence that he had been a doctor since 1969 and had practised as an orthopaedic surgeon since approximately 1978. He specialises in paediatric orthopaedic surgery, caring for children who have intellectual and physical handicaps and in spinal surgery, a lot of which involves similar children. The majority of his patients come from the Australian Capital Territory and its immediate environs.

9. He was educated at Canberra Grammar School and completed his secondary education there. His family reside in the Territory. He is now aged 43, is married and has three children. His curriculum vitae shows him to be a distinguished surgeon deeply and widely involved in the affairs of his profession. He graduated from Adelaide University Medical School in 1968, passed the primary examination for Fellowship of the Royal College of Surgeons in June 1973, and was an orthopaedic registrar in Adelaide between February 1975 and February 1978 in which latter month he was admitted to Fellowship of the Royal Australian College of Surgeons. In November 1979 he received the degree of Master of Science from McGill University.

10. Between 1982 and 1984 he was an elected member of the New South Wales State Council of the Australian Orthopaedic Association. In 1983 he was elected National Secretary of the Australian Society of Orthopaedic Surgeons. Between 1982 and 1986 he was an elected council member of the Australian Capital Territory group of the Australian Medical Association. Between 1984 and 1986 he was elected to the Executive of the Australian Orthopaedic Association. In 1985 he was elected to the Federal Council of the Australian Association of Surgeons. In 1987 he was President of the Australian Capital Territory group of the Australian Medical Association and in 1987 was elected Junior Vice President of the Australian Association of Surgeons. He has published many learned papers and engaged in a good deal of research.

11. Although what I have already said indicates that he is a member of a number of learned societies, it is convenient to set out a list of his memberships. He is -

(a) A Fellow of the Royal Australian College of
Surgeons;
(b) A Fellow of the Australian Orthopaedic
Association;
(c) A member of the Orthopaedic Research Society;
(d) A member of the Connective Tissue Society of
Australia and New Zealand;
(e) A member of the Facet Club;
(f) A member of the Australian Society of Orthopaedic
Surgeons;
(g) A member of the Australian Medical Association;
(h) A member of the Australian Association of
Surgeons;
(i) An associate member of the Australian Rheumatism
Association.

12. Dr Brendan Dooley, who, at the time of giving evidence, held the position of President of the Australian Orthopaedic Association, was a member of the Council of the Royal Australasian College of Surgeons of which he was Deputy Censor in Chief, responsible for the accreditation and examination of surgeons in all specialties throughout Australia, and had been, between 1980 and 1984, Censor-in-Chief of the Australian Orthopaedic Association, was asked whether he had become aware of the reputation which the plaintiff bore among his fellow professionals. He replied:-

"They hold him in very high regard. He is an
outstanding orthopaedic surgeon and in fact I
would place him amongst probably the upper
six in the forty to fifty plus age group of
which there would be at least 200 to 250
orthopaedic surgeons in Australia. So, he is
an outstanding person and I think Canberra,
in actual fact, is very fortunate to have had
his services in practising here because often
a smaller city's experience throughout the
world is that they do not attract necessarily
the best orthopaedic surgeons. As in any
profession they tend to go to the bigger
cities where the experience is wider."

13. He also said that, because of the plaintiff's activities at conferences and preparation of papers, theses and research work, he had become well-known throughout the whole of Australia as a leading orthopaedic surgeon. He described the plaintiff's work as a member of the committee of the Australian Orthopaedic Association as follows:-

"I think it is in the past four years that I
have had also experience with him on
committee work which furthers the academic
standards of orthopaedic surgery throughout
the country . . . we have a close relationship
with the other countries of the world, in
particular, the United States, Canada, New
Zealand, South Africa, Great Britain and
Ireland. . . . we have a very close
international relationship which we value
very highly and it has maintained high
standards here."

He described the Association as being purely an academic body although it was impossible to separate the political from it always because through political moves standards might be effected. He said:-

"We hold standards above all. We are a
charitable body, in other words, an academic
body."

14. The plaintiff holds appointments at Royal Canberra Hospital, Calvary Hospital and the John James Memorial Hospital. He provides additional services at the Hartley Street Centre for Physically Handicapped Children and, again, additional services in and around the schools of the Australian Capital Territory, conducting a school screening programme for scoliosis. He provides services in his own private rooms. His practice deals with Medicare patients as well as those who are privately insured.

15. He has operated at the Royal Canberra Hospital on a Friday morning for most weeks since roughly late 1980.

16. Annette Elizabeth Baker who, in March 1986, was a senior physiotherapist at the Hartley Street Medical Centre attached to the Hartley Street School for Handicapped Children was asked what was the plaintiff's general reputation as an orthopaedic surgeon in March 1986. She replied:-

"Much the same as it has been since he has
come to Canberra. I think he is a very
competent, he is a very caring, he is a very
organised gentleman."

Major-General Rodgers, surgeon-general for the Australian Defence Forces, gave evidence that the plaintiff is held in high respect throughout the medical community for his dedication, loyalty and competence and is of the very highest reputation.

17. There can be no doubt, and I find, that Dr McNicol's reputation for competence, skill and caring (in the sense in which that word has come to be commonly used as broadly equivalent to compassion) was of the highest.

18. The plaintiff described the system in operation for the booking in of his patients for surgery as follows:-

"Normally we would, having determined that a
patient needed an operation, select an
operative date which would then be put on to
the application for admission form we would
forward to the hospital. The hospital, of
course, always had the final say, always had
to approve it and had the final veto, but
that is the way we have tended to do it."

He said it could be that there would be a two, three, or even four month delay depending on a patient's classification and such delays might be brought about because the operative schedules had been fully booked. He classified those needing surgery as coming within categories described as urgent, semi-urgent or elective. An urgent admission would be one requiring admission usually within a matter of hours, a semi-urgent admission one requiring admission within a few days or perhaps a week or two for surgery while an elective admission would be for the next available operating time. In classifying patients for surgery in the categories "urgent" or "semi-urgent" he would have to decide whether they fell into either of those categories and needed his attention rapidly. He described an elective admission as one where, if the matter were not dealt with for some time, the patient would not come to any harm. Where the condition from which the patient suffered was a life threatening one it would clearly be a case for urgent admission. Pain could be a factor and the degree of pain might result in a patient's case being categorised either as urgent or semi-urgent. I am satisfied that decisions as to categories are and should be taken on non-emotional grounds.

19. Dr McNicol's practice was to assign a date on the admission form when he hoped that the surgery, the subject of the form, might be carried out. There could be a two, three or even four months delay depending on the patient's classification.

20. In November 1986, one of the plaintiff's patients was a six year old boy called Adam Collins who was suffering from Reye's syndrome and from epilepsy. Reye's syndrome is a post-viral syndrome which leads to degenerative change within the central nervous system and results most frequently in significant deformity developing because of muscle spasticity and imbalance in the limbs. Epilepsy has a consequential connection with it because the damage which the syndrome causes is to the central nervous system including the brain and it is not unusual for children suffering from the syndrome to suffer from epilepsy also. Reye's syndrome is potentially fatal because of the problems that a child suffering from it might have over many years but epilepsy is unlikely to be fatal unless it should happen to be uncontrollable.

21. In November 1985 the child's short medium term prognosis was good. On a long term basis it was clear to the plaintiff that he was going to have ongoing problems but none that could be predicted as life threatening at that stage.

22. The provisional diagnosis of the condition which gave rise to the need for surgery was that of a subluxing right hip. The hip joint was showing signs that, due to muscle imbalance, it might, if left untreated, eventually dislocate after a prolonged period. It was this possibility which the proposed surgery was designed to obviate. The plaintiff did not consider the boy to be in pain, certainly not from the subluxing right hip. He said that a patient suffering from Reye's syndrome may get pain due to muscle spasm and, he suspected, in the longer term as a complication of the unbalanced muscle activity about the joints which would become painful over many years. But, having considered the matter, he reached the conclusion that the child was not suffering from pain. He knew that the boy was severely intellectually handicapped and that it was not possible to communicate with him. He considered that the child's capacity to feel pain would not have been affected by the conditions from which he was suffering.

23. The operation he proposed was a right adductor myotomy, a division of the adductor muscles in the groin designed to alter the muscle balance about the hip. More specifically it was designed to slow the rate of hip subluxation or dislocation by a simple soft tissue release which can, in children suffering as the child was or similarly, prevent the hip dislocating. He also recommended a procedure called iliopsoas recession, the division of the main hip flexor muscle, the iliopsoas, and its suturing to the front of the capsule of the hip joint. This procedure would also remove a deforming force. If successful the surgical procedures proposed would have resulted in the child's looking more normal in shape and posture although it would not have improved his ambulatory capacity or his ability to get about.

24. The plaintiff completed a Royal Canberra Hospital request for admission form in respect of the child on what appears to have been 28 November 1985. The planned date of operation shown on the form was 28 February 1986. The provisional diagnosis of a subluxing right hip was noted. The operation proposed was described as an "adductor myotomy etc.". Three boxes marked respectively "urgent", "semi-urgent", and "elective" appeared on the form. The plaintiff ticked that marked "elective". There was, therefore, a gap of three months between the planned date for the operation and the date when the plaintiff signed the request for admission form.

25. Incorporated in the form was a consent for operation and anaesthetics. It was signed by Gladys May Collins, the child's grandmother, and described the operation more fully as "adductor myotomy plus iliopsoas recession". The form was apparently received by the Royal Canberra Hospital on 12 December 1985. No one appears to have suggested at that time that the date chosen for the operation was unsuitable so far as the hospital was concerned. The date planned might therefore be taken by the plaintiff to be acceptable and would have been available in the normal course in accordance with the practice which had grown up between him and the hospital, subject to the hospital's right to cancel the surgery so planned.

26. A diary kept by or on behalf of the plaintiff showed in the entry for 28 February 1986 the following (I omit details of the proposed surgery recorded):-

"O.T. R.C.H. A.M.
Collins Adam
Ritchie Slana
Tsakalos John
Topich Simon."

27. Subsequently, two of the entries were struck out. That relating to Adam Collins had noted above and below the line striking it out the words "cancelled by hospital (our choice of patient)" while the second entry, that relating to Alana Ritchie, had noted near the line striking it out the words "cancelled by hospital".

28. The plaintiff then gave evidence that on Wednesday, 19 February 1986, some news from the hospital about the planned operation for Adam Collins was transmitted to him. I am satisfied that that took place on Wednesday, 19 February 1986. His secretary, Ms Karen Ann Hutchinson, informed him that she had received a telephone call from Ms Betty Williams, the surgical booking clerk at the Royal Canberra Hospital, advising that one of the operations in respect of the two children which were planned for 28 February 1986 would have to be cancelled.

29. The plaintiff immediately telephoned the Deputy Clinical Superintendent of the hospital, Dr David Dumbrell, to ask that the decision be reversed. Dr Dumbrell said to him that a patient had to be cancelled because of an expected shortage of beds. Remonstration by the plaintiff failed to sway Dr Dumbrell but he did say, "Dr McNicol, as you have bothered to call, you may choose which patient is to be cancelled". Before the election was made the plaintiff had told Dr Dumbrell that one of the children had muscular dystrophy and one Reye's syndrome and that the case of the child with muscular dystrophy was the more urgent. He needed surgery on both heel cords to remain ambulant for another year or two before becoming permanently wheelchair bound. The plaintiff also pointed out that the operation planned for him had already been cancelled from one operating list of the plaintiff at another hospital. He pressed the inappropriateness of the delay in respect of the surgery planned for Adam Collins, pointing out that he was profoundly intellectually and physically handicapped but, as I have indicated, he failed to move Dr Dumbrell. He did not describe Adam Collins' condition except in the terms just referred to.

30. The plaintiff then told his secretary of the net effect of the conversation with Dr Dumbrell and asked her to contact the Collins family to inform them that the surgery would not go ahead on 28 February 1986. The plaintiff told his secretary that she should give the next available date to the Collins family for Adam's surgery. The conversations just referred to had taken place during the morning. During the afternoon the plaintiff operated from 1 p.m. to approximately 5 p.m. at Calvary Hospital in Canberra. He played no part in the selection of that date. When he left for Calvary Hospital that afternoon he had no idea what date had been selected. He learnt in due course that it was 11 April 1986. The source of his knowledge was a newspaper report in the issue of the Canberra Times published on 20 February 1986.

31. The report, inter alia, quoted Mrs Collins as saying:-

"I've been crying all day. . . . I got a phone
call this morning to tell me that Adam's hip
operation had been cancelled. I rang
elective surgery and they told me that they
didn't have the nursing staff to cope."

The report then went on:-

"Adam was to have gone into hospital on
February 28 and Gladys had arranged
alternative care for 'Nanna' and her father.
'The hospital just doesn't realise what
cancelling Adam's operation means.'
Adam's tortured muscles have strained further
and further back - 'he is bent backwards like
a banana' - and, about three months ago, his
hip pulled out of its socket. He needs an
operation to fix the hip and free the
muscles.'
'He is in constant pain. . . . It is so bad
that he has fits.'
But Adam's case is not urgent (according to
medical classification) and because the
Collins family is not privately insured
against medical costs he must wait. His name
has been put on an operating list for April
11 but no guarantees have been given. If the
April operation goes ahead Adam will have had
a dislocated hip for almost six months.
. . .
'It is just stupid red tape, the stupid
Health Authority and Government stinginess
that is mucking our lives up.'
What did she think about an ACT Health
Authority statement yesterday that reports
about extended waiting lists for elective
surgery at Canberra hospitals were
'exaggerated and misleading'?
. . .
'I feel like getting a cricket bat and going
and breaking (the chairman of the authority)
Mr Bissett's hip and letting him see what it
feels like. Maybe if Mr Bissett had a child
like Adam he would be a bit more
sympathetic. . . . The thing that hurst me the
most is that that baby has suffered since he
was four months of age and he's suffering
unnecessary pain now. . . . It's a pain that I
consider is unnecessary.
'We were given the date for the operation
three months ago. I was horrified then at
the wait but I decided there was not much I
could do. I thought, Gladys, sit there and
wait it out. But it's a bit much when it's
just a phone call. . . . They just blow your
life apart with a phone call. They tell you
that you have to wait another couple of
months and then you might have to wait
another couple of months on top of that.
'That baby in there, he is all that we've got
left of our son. . . . that and his South
Sydney football mirror. It's important to
us. I feel like going into the hospital with
the baby and saying, here he is, I refuse to
take him home.
'Or maybe I should say "you come out to my
house and you take over for a week - you
watch him fitting and you watch him going
through the pain". They don't really care.
If they did care they would do something
about it. But it's not happening to their
relatives so they don't give a damn, they
don't get out of their offices long enough to
see anything like this.'"

32. What I have quoted from the article is sufficient to show its general thrust as an attack upon the Authority for its failure to take account of the pain which Mrs Collins claimed her grandson was suffering because of the delay in the surgery planned for his hip.

33. I am satisfied that neither Adam Collins nor the child upon whom the plaintiff elected to operate when he was forced to choose between the two was privately insured against medical cost. Each was a Medicare patient. I am satisfied, too, that when the plaintiff elected to postpone the surgery planned for Adam Collins it had nothing whatever to do with the fact that he was a Medicare patient.

34. After the plaintiff had read the article on 20 February 1986 he was told by a television journalist, during the course of that day, that the member for Canberra in the House of Representatives, Ms Ros Kelly, intended to attack him that evening in the Parliament. After several attempts to make contact with her, he finally spoke to her about the Adam Collins case and during the course of his conversation with her told her that he was prepared to operate on the boy at any time. Shortly after he spoke to her he had a further conversation with Dr Dumbrell and told him, too, that he was prepared to proceed at any time to operate on Adam Collins. He also had a similar discussion with the reporter from the Canberra Times whose byline appeared above the article published on 20 February 1986.

35. On 21 February 1986 a further article appeared in the Canberra Times. It included the following:-

"Unless his operation is again cancelled,
Adam will now have his operation done on
April 11.
The ACT Health Authority said yesterday that
the private orthopaedic surgeon 'chose to
cancel Adam's surgery, in preference to
others on his list for that day'.
Dr David McNicol, the specialist referred to
by the Authority, said yesterday that he had
been instructed by Royal Canberra Hospital to
cancel either the operation on Adam or that
scheduled for another child booked in for
surgery on February 20 (sic).
Dr McNicol, who specialises in treating
handicapped children, said 'the choice was
not easy'. The child he decided to operate
upon suffers muscular distrophy (sic) and is
dying. The operation that Dr McNicol will
perform on him will allow him to 'stay out of
a wheelchair for just a little bit longer'.
'The decision to cancel one of the operations
was beyond my control', he said. 'I was
ordered to cancel one and decided to help the
muscular-distrophy (sic) patient to have a
slightly better life for a little bit
longer. I did it in consultation with the
clinical superintendent at Royal Canberra
Hospital'.
Dr McNicol said that both patients were
covered only by Medicare.
A spokesman for the health authority, Mr
Maurice Sexton, said that Dr McNicol had not
rescheduled the operation to March 7, which
was the next available date for surgery. The
Royal Canberra Hospital had 'sought advice'
from Dr McNicol yesterday to 'see whether he
thought this case was more urgent than other
waiting cases'."

36. On 6 March 1986, as one of the members of a group known as the Orthopaedic Unit, he and two other orthopaedic surgeons, Dr Geoffrey Stubbs, the head of the Unit, and Dr William Coyle, attended a meeting at the premises of the Authority where elective surgery and orthopaedic services in the Territory were to be discussed with the executive of the Authority. The General Manager of the Authority, Mr John Bissett, its Deputy General Manager of the Hospital Services Division, Mr Alan Hicks, and the Medical Superintendent, Dr Janet Mould, were present at the meeting.

37. Dr Stubbs brought to Mr Bissett's attention the Unit's concern regarding the publicity which had affected the plaintiff. At that meeting Dr Stubbs said, and I accept his evidence, that the orthopaedic surgeons were upset at the way Adam Collins' cancelled operation had been reported in the press and that they believed that the statements of the Authority spokesman had been quite wrong and misleading. He said that Mr Bissett said, "I don't quite know what you're talking about".

38. Dr McNicol then told Mr Bissett that it concerned a boy who had been booked to have surgery in February and in respect of whom he had been telephoned by the superintendent at Royal Canberra Hospital to be told that he had to cancel one of the two children on his operating list. After discussing the matter with the superintendent he had agreed to have Adam Collins' operation cancelled as being the less urgent of the two. Mr Bissett then said:-

"I don't understand why this came out in the
press in that way. Normally all press
releases that are given out by the Health
Authority are cleared with me first."

He was reminded by Dr Mould that he had been absent in Sydney at the time.

39. I also accept the plaintiff's evidence that he had said to Mr Bissett:-

"Mr Bissett, I am both outraged and angry
about the story as covered in the newspapers
on those dates."

I am satisfied that Mr Bissett then said:-

"The facts were incorrect, I apologise to
you. I hope that is where the matter will
end and I will endeavour to make sure this
does not happen again"

or words to the same effect. That apology was accepted by the plaintiff.

40. I am also satisfied that during the discussion reference was made to the possibility that reports of the kind under consideration would not encourage orthopaedic surgeons to come to Canberra.

41. In accepting the evidence just referred to I have taken into account my assessment of the three doctors who gave evidence concerning the conversations. It is true that there were discrepancies between them but I do not think that they were major. I accepted them as witnesses of truth doing the best they could to recollect what had been said. I do not think that Mr Bissett, who gave a somewhat different account of the conversation, was being deliberately untruthful but I think he was mistaken. If it were a question only of probabilities and not of my impression of the witnesses I think I would still come to the same conclusion as to which version is to be preferred. I do not doubt that the plaintiff was very angry and that Mr Bissett, faced with what must have been a degree of righteous indignation, would have been concerned to mollify that anger when it was plain that the three doctors and the plaintiff in particular had something to be angry about. In addition, there is in evidence a minute dated 20 June 1986 from Mr M.R. Sexton, then the Authority's Assistant General Manager in respect of administrative policy and support services, which includes the following:-

"The problem is that the publication of the
media release in the Staff Bulletin took
place after Dr McNicol had been identified as
the surgeon concerned, after he had taken
action to arrange for Adam Collins to be
operated on and after the General Manager had
met with him and apologised for the publicity
given to this case."

42. Mr Bissett denied that he had told Mr Sexton that he had apologised to Dr McNicol for the publicity given to the case. He said that he had only expressed regret for that publicity and had not apologised for it. I find that evidence hard to accept in the face of the statement made in the minute, Exhibit F. It is also to be noted that Dr McNicol seems to have instituted no proceedings in respect of the material published in the Canberra Times which might have been held to be defamatory of him and it seems to me that the obvious explanation for his proceeding against the Authority for the defamatory material complained of is his indignation at its publication after he had received an apology and an assurance that what had happened would not be repeated.

43. A good deal of evidence was devoted to the question of whether the child was in fact suffering pain from the subluxation of his hip, the condition with which the proposed surgery was intended to deal.

44. During the course of his closing address senior counsel for the Authority said, "We do not say that the boy was in pain". By that, I took him to mean that the Authority conceded that at all relevant times the subluxation of the hip was not causing pain to the child. The evidence satisfied me that this was so and I think the concession was rightly made.

45. The plaintiff's secretary gave evidence of receipt of a telephone call on 19 February from the surgical booking clerk at Royal Canberra Hospital, Ms Betty Williams, who told her that one child would have to be taken off the plaintiff's operating list for 28 February 1986. The plaintiff was engaged in his consulting room. When he was free she went in, taking the operations diary with her, to tell him of the cancellation.

46. She overheard him telephone Dr Dumbrell and, after argument, finally make the decision to operate on the child suffering from muscular dystrophy. After that conversation the plaintiff told her to book Adam Collins for the next available time. He completed his consultations that morning and then went to Calvary Hospital where he was operating in the afternoon. She checked to see what was the next available date and found it to be 11 April 1986. She chose this date by assessing the earliest possible date where she could reschedule the child's surgery with enough time (she thought about an hour) when the plaintiff could fit the child into his schedule. Thereafter she telephoned Mrs Collins to tell her that the hospital had cancelled Adam's surgery and of the date for the rescheduled operation. Mrs Collins was upset at the news and Ms Hutchison said she would talk to the plaintiff about it. She made a note in a message book kept in the plaintiff's consulting rooms which read "19.2.86. Could you please speak with me about Adam Collins' surgery."

47. She was unable to speak to him further on that day because of his operating commitments. The following day he was operating during the morning and had a fracture clinic in the afternoon. Eventually, fairly late in the day, probably in the early evening, she spoke to the plaintiff and of her promise to Mrs Collins to speak to him about the operating date because she had been so upset. She also showed him the newspaper article which had appeared in the Canberra Times that day, 20 February 1986. Later in the evening the plaintiff told her to bring Adam Collins' operation forward to the earliest possible time. Next morning she went through the operating diary to investigate the entries for 7 March 1986 and noted the name of a child called Renee Heaton whose mother eventually gave evidence. An operation on that child which had been planned for 14 February 1986 had already been cancelled and a new date, 7 March 1986, fixed.

48. I am satisfied that Ms Hutchison asked Mrs Heaton whether she would be prepared to have Renee operated on at the John James Hospital, a private hospital. Mrs Heaton was not sure that her health fund would cover the cost of her daughter's operation at that hospital. Subsequently she found that the cost would be covered by her health fund and the child's name was removed from the Royal Canberra Hospital operation list for 7 March 1986 and transferred to the John James Hospital list for 13 March 1986. The transfer had the advantage that the date fixed for the operation was most unlikely to be changed.

49. On 21 February 1986 Ms Hutchison wrote another note in the message book. It read:-

"Have called Mrs Collins about Adam and
placed him on list for 7th March. Called
hospital to rebook him. They have only 10
children's beds for that week therefore it
looks as though other patients from that day
will have to be moved. - Two have already
been cancelled before."

She had, she said, discussed with Ms Williams 7 March 1986 as a suitable date for Adam Collins' operation and that date had been decided upon.

50. Ms Williams, who gave evidence on behalf of the Authority, had a different version. She said that Mrs Collins had telephoned her some time before 28 February 1986 and said she had not received a letter telling her of Adam's admission to hospital. She had replied that the date nominated had been given Mrs Collins, not by the hospital but by the doctor's rooms, and that she could not confirm the date until she was advised of the beds available for the week in question.

51. She said that after the meeting of the hospital's workload monitoring committee on Monday 17 February 1986 she received information as to the beds which would be available for the following week. She discussed with Dr Dumbrell the restriction of the plaintiff's surgery list for 28 February 1986. She said that she rang the plaintiff's surgery on the Monday or Tuesday but I am satisfied, as I have indicated, that she did not telephone the plaintiff's surgery until Wednesday, 19 February 1986. She said that she received a telephone call from Mrs Collins concerning the postponement. The call was in very much the same terms as the complaint by Mrs Collins reported in the Canberra Times on 20 February 1986 and could be described as indignant. She said that she may have, but she could not be sure that she had, told Mrs Collins that it was hospital policy that when an operation was cancelled it should be rescheduled to take its place in the relevant surgeon's operating list for the following week.

52. She said she then had a conversation with Dr Dumbrell and thereafter looked at the list of the plaintiff's patients scheduled for surgery on 7 March 1986 when he was expected to operate for seven hours. She said that she then telephoned the plaintiff's secretary on either Tuesday, 18 February or Wednesday, 19 February 1986 to tell her that she had heard from Mrs Collins that Adam's operation had been cancelled and was not going to take place until 11 April 1986. She said that she told Ms Hutchison about hospital policy, that she felt that Adam should be operated on on 7 March 1986, that she had discussed it with the clinical superintendent, that there was time on the plaintiff's list on that day and that she had asked Ms Hutchison to discuss the matter with the plaintiff.

53. I am satisfied that the plaintiff, having given instructions to Ms Hutchison that the next available date should be fixed for Adam Collins' surgery, played no further part in making the arrangements for that date until the evening of 20 February 1986. Unfortunately, the diary for 1986 which was kept in the plaintiff's rooms to record commitments for surgery cannot be found. It may be that reference to that diary would show that, as at 19 February 1986, it was obvious, or should have been obvious, that there was time available on 28 February 1986 for the plaintiff to operate on Adam Collins on that date. What I am unable to accept is that Ms Hutchison was told by Ms Williams that there was time available on 7 March 1986 for the operation and that, in apparent defiance of her employer's instructions that she should fix the next available date for the operation, she decided to do nothing about changing the date she had already fixed. The matter was entirely in her hands. She impressed me as an intelligent, conscientious and truthful woman. I am unable to accept either that she would have found it necessary on 19 February 1986 to ask the plaintiff to discuss Adam Collins' operation with her or that she would not have told him on the evening of 20 February 1986 that Ms Williams had told her that 7 March 1986 was available for the operation. That information would clearly have been of vital importance to the plaintiff on that evening when he was obviously in a position of some embarrassment. It will be remembered that he had told Ms Kelly that he was prepared to operate on Adam Collins at any time and had said the same thing to Dr Dumbrell. There is no reference in Dr Dumbrell's evidence or his notes of the two conversations which he had with the plaintiff on the evening of 20 February 1986 to possible performance of the operation on 7 March 1986. (In assessing Ms Hutchison as a witness, I am mindful of the fact that she seems to have been largely mistaken about entering times for operations in the operations diary she kept.)

54. Indeed, there must be very real doubt as to whether the operation could, in the ordinary course, have been fitted in to the plaintiff's schedule on 7 March 1986 in any event. On 14 February 1986 an emergency meeting had been held at the hospital at which all elective surgery except paediatric surgery for the week commencing 17 February 1986 had been cancelled. Dr Dumbrell agreed that as at 17 February "the immediate few weeks in front of (him) looked very bleak with regard to the capacity of the hospital to accommodate elective surgery". Minutes of the workload monitoring committee meeting held on 17 February 1986 show that the final agreed numbers for surgery were "20 adults, 8 children, 6 medical and 80 day cases". That committee met again on 25 February 1986 when it was decided that for the week commencing 3 March 1986 20 adults, 7 medical and 80 day cases should be dealt with while all paediatric surgery should be cancelled. That this decision was earlier expected appears plainly from the note which Ms Hutchison made on 21 February 1986 and which I have already quoted.

55. It is clear that Ms Williams was in some doubt as to whether the operation could in fact take place on 7 March 1986 for she said, when asked whether between 21 February and 25 February she had any further discussion with the hospital administration about Adam Collins' surgery, that Dr McCann, who was responsible for management decisions in the hospital, said to her that Adam Collins' operation must go on in the next week. She had replied, "subject to a bed being made available from the monitoring committee". He responded, "A bed will be available. The child must be operated on next week."

56. Later evidence also indicates and I am satisfied that that conversation took place on 21 February 1986 but at what time on that day I am not able to say.

57. The fact of that conversation is not inconsistent with the action which Ms Hutchison took because no matter what arrangements she made concerning surgery for 7 March 1986 it was plain, having regard to the information which she must have had on 21 February 1986, that there was a high probability that any surgery scheduled for 7 March would be cancelled. It would have required a decision by the administration of the hospital at a higher level than that occupied by the workload monitoring committee to ensure that the operation on Adam Collins did in fact take place on that date.

58. I turn to the question of how the press release came to be published in the form in which it appeared in the staff bulletin. Much of such bulletins is devoted to staff matters. They included advertisements for vacant positions some of which were open to members of the public for whose benefit, no doubt, copies of the bulletin were distributed to the Civic office of the Commonwealth Employment Service.

59. At the relevant time all press releases issued by the Authority were sent to its personnel section and within that section were entrusted to the recruitment section for publication in the staff bulletin. I accept the evidence of Ms Julia Ann Smith that at the relevant time there was a directive in existence that all press releases should be published in the staff bulletin. Normally, press releases were furnished to the personnel section on or shortly after the day of their issue. Usually they were published in the next edition of the staff bulletin. The production of the staff bulletin was left generally in the hands either of Ms Patricia Ruth Wall or Ms Smith. Occasionally the manager of personnel, Mr Jones, did a quality control check of a particular bulletin before its publication but he did not check the one issued on 6 March 1986.

60. Ms Wall gave evidence that the deadline for the bulletin was the Wednesday of the week before publication. One of her tasks was to edit press releases to take account of the time between their issue and the date of their publication in the staff bulletin. For example she altered the first line of the press release by deleting from it the word "today" with a view to making it speak as from the date of publication in the staff bulletin. She was not equipped nor, it would seem, trained to ensure that the passage of time had not rendered inaccurate what appeared in a press release when it was published in the staff bulletin, edited to some degree though it may have been.

61. I am satisfied that neither Ms Wall nor Ms Smith directed their attention to the question of the truth of the matters set out in the press release as edited and published. I am also satisfied that no attempt was made by anybody in authority to ensure either that the press release was not published in the staff bulletin or that, if published, it was corrected to take account of the events which had happened.

62. Before turning to closer consideration of the material complained of, I refer to authority.

63. In Gorton v. Australian Broadcasting Commission (1973) 1 ACTR 6, Fox J said, at pp 10-11:-

"When a plaintiff sues in defamation he
invokes the understanding, and the standards
of the 'ordinary reasonable man'; of
'right-thinking members of society
generally'. Matter is defamatory if it tends
'to lower the plaintiff in the estimation of
right-thinking members of society generally'
(Gatley on Libel and Slander, 6th ed., par.
41), or 'if it is likely to cause ordinary
decent folk in the community, taken in
general, to think less of him' (per Jordan
C.J. in Gardiner v. John Fairfax & Sons Pty.
Ltd. ((1942) 42 SR (NSW) 171, at
p 172)). . . . The question is not one of what
the defendant meant, or how the words were
understood by the plaintiff. Nor, in a case
such as the present, is it a question of how
the words affected the opinion of a
particular class or section of viewers. The
appeal is to a greater universality of
opinion.
"The meaning to be given to the words used is
the meaning they would convey to 'the
ordinary reasonable man'. They are to be
construed 'in their natural and ordinary
meaning, i.e. in the meaning in which
reasonable men of ordinary intelligence, with
the ordinary man's general knowledge and
experience of worldly affairs, would be
likely to understand them' (Gatley, op.cit.,
par.93). In Lewis v. Daily Telegraph Ltd.
((1964) AC 234, at p 258) Lord Reid said:
'There is no doubt that in actions for libel
the question is what the words would convey
to the ordinary man: it is not one of
construction in the legal sense. The
ordinary man does not live in an ivory tower
and he is not inhibited by a knowledge of the
rules of construction. So he can and does
read between the lines in the light of his
general knowledge and experience of worldly
affairs'. Lord Devlin said in the same case
(at p 280): 'There must be added to the
implications which a court is prepared to
make as a matter of construction all such
insinuations and innuendoes as could
reasonably be read into them by the ordinary
man'.
"What I believe the hypothetical ordinary man
would take from the words used can only be a
matter of impression."

64. In Readers Digest Services Pty Limited v. Lamb [1982] HCA 4; (1982) 150 CLR 500 at pp 505-6, Brennan J, speaking for the majority of the Court, said:-

"Where no true innuendo is pleaded and the
published words clearly related to the
plaintiff, the issue of libel or no libel can
be determined by asking whether hypothetical
referees - Lord Selborne's reasonable men
(Capital and Counties Bank v Henty (1882)
LR 7 AppCas 741, at p 745) or Lord
Atkin's right-thinking members of society
generally (Sim v. Stretch (1936) 52 TLR
669, at p 671) or Lord Reid's ordinary men
not avid for scandal (Lewis v. Daily
Telegraph Ltd. (1964) AC, at p 260) - would
understand the published words in a
defamatory sense. That simple question
embraces two elements of the cause of action:
the meaning of the words used (the
imputation) and the defamatory character of
the imputation. Whether the alleged libel is
established depends upon the understanding of
the hypothetical referees who are taken to
have a uniform view of the meaning of the
language used, and upon the standards, moral
or social, by which they evaluate the
imputation they understand to have been
made. They are taken to share a moral or
social standard by which to judge the
defamatory character of that imputation
(Byrne v. Deane (1937) 1 KB 818, at p 833),
being a standard common to society generally
(Miller v. David (1874) LR 9 CP 118;
Myroft v. Sleight (1921) 90 LJKB 883;
Tolley v. J.S. Fry & Sons Ltd. [1931] UKHL 1; (1930) 1 KB
467, at p 479)."

65. The identity of the plaintiff as the specialist surgeon referred to in the press release is admitted.

66. As senior counsel for the Authority forcefully submitted, it is necessary to bear in mind that the defamatory material complained of is the article only and the temptation to deal with the plaintiff's suit as though it were brought in respect of the article and material published in the Canberra Times must be avoided. Of course, the article contains reference to the Canberra Times published on 20 February 1986 and it is quite likely that persons reading the staff bulletin would have some recollection at least of the earlier article and of its general tenor which was encapsulated in the prominent headline "Boy in Pain 'Denied Relief'" and the lesser subsidiary headline "Operation deferred". It is all the more likely that the general run of readers of the staff bulletin would have connected the article with what had been earlier said in the Canberra Times. It is also likely that, notwithstanding the absence of any reference to it in the article, readers of the article in the staff bulletin may have connected the article with the rather more damaging article in the Canberra Times published on 21 February 1986. One must not make too much of the possibilities to which I have just referred. In particular, it would be wrong to attribute too much effect to the second newspaper article. Appreciating that it is necessary to conduct a fine balancing exercise I proceed to consider the article itself.

67. The first paragraph of the article carries with it, in my opinion, the clear implication which I am satisfied that any ordinary reader would take from it that the operation planned for Adam Collins was to take place on 11 April 1986. This implication which seems to me to arise from the natural and ordinary meaning of the words was plainly wrong since thirteen days before the article was published the operation had been rescheduled for 7 March.

68. It may be the case that the hospital had to cancel most elective surgery in the week following 6 March 1986 as indicated in the second paragraph of the article but in the context the paragraph is meaningless. Properly edited, the paragraph should have read "The situation is that nurse staffing shortages and a high number of emergency admissions meant that the hospital had to cancel most elective surgery for the week commencing 23 February 1986" or words to that effect. However, I proceed on the basis that some at least of the readers of the article might have perceived that the cancellation referred to in the second paragraph referred in fact to the week commencing 23 February or at least on some date which would give meaning to the paragraphs which follow.

69. At first sight the third paragraph appears to be correct but in fact it is incorrect since the choice was not between "Adam's surgery" and "others", but between surgery on Adam Collins and surgery on the boy suffering from muscular dystrophy. No "others" were involved. However, I do not think that mistake is defamatory. It is true that the plaintiff chose not to reschedule Adam's surgery until 11 April since he left the choice of the rescheduled date to his secretary and must be held responsible for her choice.

70. The fourth paragraph is quite true but, in my opinion, carries with it a defamatory imputation in that it makes reference to the surgeon as one employed on a fee-for-service basis. The compilers of the press release must be taken to have intended, in my opinion, that its readers would appreciate that the child upon whom the surgery was intended to be carried out was a Medicare patient in respect of whom the plaintiff might expect to receive a lesser fee than he would for similar surgery performed on somebody not a Medicare patient. Of course, the public health system is such that no obloquy of any kind attaches to the fact that a person is a Medicare patient but there is a clear implication in my opinion, and I think the clause would have been understood to mean, that the plaintiff was influenced by financial considerations in electing to defer Adam Collins' operation. Of course, nothing could be further from the truth since both the children in question were Medicare patients.

71. Paragraphs 5 and 6 were correct.

72. Paragraph 7 was correct except that, as I am satisfied, the information concerning the cancellation of one operation was not conveyed to the plaintiff until Wednesday, 19 February 1986. The paragraph has, however, the virtue that it corrects the impression which might have been created by the use of the word "others" in paragraph 3.

73. Paragraph 8 made it appear that the decision as to which case would have priority was left entirely to the plaintiff and that the plaintiff later advised that Adam Collins' surgery would not go ahead and that Adam would wait until 11 April. In truth, as Dr Dumbrell agreed, the decision to cancel Adam Collins' surgery on 28 February 1986 was a joint decision. He believed, and I accept, that he had told Dr McCann that the decision to cancel Adam Collins' surgery was a joint one between the plaintiff and himself. That is not to say, of course, that the plaintiff's knowledge of the medical implication of the two cases under consideration would not have been a decisive factor in the choice which was eventually made but the choice was made after consultation and was agreed to by both men.

74. The first sentence of paragraph 9 is correct but is, in my opinion, misleading having regard to the practice which had been adopted by the hospital in respect of the plaintiff's patients. There were good and sufficient reasons for that practice. This appears from a letter which the plaintiff wrote to the clinical superintendent of Royal Canberra Hospital on 5 February 1986 when he discussed, inter alia, the booking of elective surgery on fixed dates. In that letter, dealing with that subject, he said:-

"I have pointed out to you for the last five
years that my staff have been in the habit of
booking patients on reasonably firm dates for
elective procedures in consultation with the
surgical booking clerk. The reason for this
arrangement which was confirmed only last
year by Dr Paul McCann the then clinical
superintendent was that many of the operative
procedures are staged and must be completed
at two or six week intervals exactly and all
of the spinal cases undergo
autotransfusions. This means that for a
period of up to six or eight weeks prior to
surgery blood is collected and stored.
Clearly if operations are cancelled at the
last minute or if a firm date is not
ascertained before blood collection is
started then the whole exercise is a waste of
time and money for everyone. My staff have
always liased (sic) over this and there have
been no problems up until this point in
time. The surgical booking clerk raised this
subject as I said last year and Dr Paul
McCann was quite happy for the system to
proceed as it has in the preceding years
provided that the hospital had the final
right of veto. Of course I have agreed to
that but would expect that any changes to my
schedule would be made after proper
professional contact was established rather
than through a clerk."

The 9th paragraph went on, "In this case, that is on 7 March, said Mr Sexton". It is true that the next available session at which the plaintiff was to operate was on 7 March but the whole paragraph ignores what had been the practice adopted for seemingly good reasons between the hospital and the plaintiff. It is not a statement that there was time available on 7 March 1986, although that may in fact have been the case, assuming no cancellations for other reasons, but simply a statement concerning normal hospital practice which clearly did not apply in the plaintiff's case.

75. The first sentence in the 10th paragraph is also wrong. The Royal Canberra Hospital had had much to do with Adam Collins. He was admitted at least as far back as 9 March 1982 under the care of Dr Chandran, a paediatrician employed by the hospital, so that he might have a CAT scan. Discharged the following day, the following matters were noted on his discharge summary:-

"REASON FOR ADMISSION: 2 yo transfer from
W(oden) V(alley) H(ospital). Elective
admission for CAT scan brain. Known Reyes
syndrome. Recent pneumonia. Admitted to
WVH. Increasing fits.
RELEVANT FINDINGS IN SUPPORT OF DIAGNOSIS
(Clinical/Investigations): Hypertonic
extended back hyper reflexic plantar
extension. Below 3rd percentile height &
weight.
OPERATIONS PERFORMED/TREATMENT: Usual anti
epileptic medications. Sedated for CAT scan
brain."

76. On 19 August 1983 his treatment record was noted as follows:-

"Pt (patient) admitted - - - aspiration
pneumonia.
PH: Reye's syndrome
Rx: Pt fitted when handled approximately 30
secs.
Must be Rxd (presumably relaxed) on Nanna's
knee."

77. He was in hospital in 1984 and again in 1985 when his patient's progress chart noted, inter alia, that he was bathed by his grandmother. During that same admission it was noted that his history was given by his grandmother, that the reason for his admission was "fitting" and, as to his home situation, that he lived with his grandparents, three uncles and great-grandfather.

78. The second sentence of the paragraph was no doubt correct.

79. The last paragraph of the article was wrong in a number of respects. There is no evidence whatever that the hospital or anyone on behalf of the hospital sought advice from Dr McNicol to see whether he thought the case was more urgent than other waiting cases. The only evidence which might be said to bear on the point appeared in the cross-examination of Dr Dumbrell. He was read the paragraph and then asked whether the word "yesterday" must have been a reference to 19 February 1986. He agreed that he took it so. He was then asked:

"So far as you are aware, any attempt by the
hospital to seek advice from the surgeon to
see whether he thought this case was more
urgent than other waiting cases had been made
by you?"

He replied: "In one sense, yes, it had, yes."

80. He was asked whether he knew of any other attempt on 19 February or before 20 February and replied that he now knew that Ms Williams attempted to ring the plaintiff's office on 19 February. (I have already set out my findings in relation to Ms Williams' contact with the plaintiff's office on that date.)

81. Dr Dumbrell was then asked a number of questions which, with their answers, I set out:-

"So far as you are aware, you are the only
person who sought information from the
surgeon concerning the circumstances of Adam
Collins from the point of view of his
cancellation? --- At that stage, yes.
Yes. And when you read that article, you
knew full well why he thought the other case
or cases were more urgent than Adam
Collins? --- I did, yes.
So you recognised that this last paragraph,
including the statement, 'he has not
responded', was quite misleading, didn't
you? --- No, because the problem was that Dr
McNicol had put Adam to April 11 rather than
March 7. Now, I was not to know whether
there were more urgent cases than Adam in
between March 7 and April 11."

82. There is, therefore, no evidence that the hospital sought advice and I find that it did not seek advice from the plaintiff as to whether he thought Adam Collins' case was more urgent than other waiting cases although, of course, there was a discussion as to whether his case should be dealt with in preference to that of the child suffering from muscular dystrophy. The use of the word "yesterday" in the paragraph was misleading because it would make it appear to a reader that any advice which the hospital sought was sought on 5 March 1986 when, of course, if the Authority's version were accepted, the advice in question was sought on 19 February 1986.

83. The last sentence of the article, "He has not responded." was also quite misleading. The matter had been resolved by the efforts of the plaintiff and his secretary and by the direction of Dr McCann by the end of 21 February and, of course, the operation did take place on 7 March.

84. Admittedly, a reader of the article would not, unless privy to all the circumstances, see all the errors in it or be aware that some of the matters in it although apparently correct were in fact misleading. But I am satisfied that the overall impression which the article gives, applying those tests referred to in the passage set out above, is that the plaintiff was callous or insensitive to the needs of his patient or both and that, having regard to the gratuitous use of the clause "who is engaged on a fee-for-service basis", he acted out of material self-interest rather than in the interest of the patient.

85. I think a wider group of readers than those who might be expected to read the staff bulletin would have understood this second imputation to appear from the article since the expression "fee-for-service" is one in common usage in relation to the provision of health services. Having regard to the general run of persons who might reasonably be expected to read the bulletin, I have no doubt that they would have perceived that imputation.

86. I find, therefore, that, prima facie, the plaintiff's claim is made out and that the first of the defences fails.

87. The second defence, that of qualified privilege, asserts that the matter complained of was published pursuant to a duty owed to the persons to whom it was published to publish it, those persons having an interest in receiving it, or pursuant to a common interest with the persons to whom it had been published.

88. I set out two passages which seem to me to state the applicable law sufficiently.

89. In Jenoure v. Delmege (1891) AC 73, Lord Atkinson, giving the advice of the Board, said at pp 78-9:-

". . . their Lordships are of opinion that no
distinction can be drawn between one class of
privileged communications and another, and
that precisely the same considerations apply
to all cases of qualified privilege. 'The
proper meaning of a privileged
communication,' as Parke, B., observes -
Wright v. Woodgate (2 CM & R 572 at p 577:
150 ER 244 at p 2467) - 'is only this: that
the occasion on which the communication was
made rebuts the inference prima facie arising
from a statement prejudicial to the character
of the plaintiff, and puts it upon him to
prove that there was malice in fact - that
the defendant was actuated by motives of
personal spite or ill-will, independent of
the occasion on which the communication was
made.' There is no reason why any greater
protection should be given to a communication
made in answer to an inquiry with reference
to a servant's character than to any other
communication made from a sense of duty,
legal, moral, or social. The privilege would
be worth very little if a person making a
communication on a privileged occasion were
to be required, in the first place, and as a
condition of immunity, to prove affirmatively
that he honestly believed the statement to be
true. In such a case bona fides is always to
be presumed."

90. In Toogood v. Spyring (1834) 1 CM & R 181: 149 ER 1044, Parke B said, at p 193:1049-50:-

"In general, an action lies for the malicious
publication of statements which are false in
fact, and injurious to the character of
another . . ., and the law considers such
publication as malicious, unless it is fairly
made by a person in the discharge of some
public or private duty, whether legal or
moral, or in the conduct of his own affairs,
in matters where his interest is concerned.
In such cases, the occasion prevents the
inference of malice, which the law draws from
unauthorized communications, and affords a
qualified defence depending upon the absence
of actual malice. If fairly warranted by any
reasonable occasion or exigency and honestly
made, such communications are protected for
the common convenience and welfare of
society; and the law has not restricted the
right to make them within any narrow limits."

See also Howe v. Lees [1910] HCA 67; (1910) 11 CLR 361, particularly at pp 367-370 per Griffiths CJ and at p 376 per O'Connor J.

91. A person attacked may defend himself and his defence, unless actuated by malice, will be the subject of qualified privilege. See Gatley on Libel and Slander, 8th Edn., at para 514 (p 218) and the cases there cited. In the first of those cases, Coward v. Wellington (1836) 7 C & P 531: 173 ER 234, a tradesman dismissed by a customer wrote to the customer imputing dishonesty to one who was not named but who might have been identified as the plaintiff's wife and who was the customer's housekeeper, living apart from her husband. The plaintiff brought an action for special damage. Littledale J directed the jury that if the defendant were attacked and bona fide wrote to the customer to justify himself alleging fraud against the housekeeper the communication should be considered privileged so that the plaintiff might succeed only if there were malice.

92. I take that case as authority for the proposition that a person attacked may defend himself by seeking to show that blame attributed to him is really properly attributable to a third person and that such a communication from the person attacked is afforded the protection of qualified privilege unless malice can be shown by the person onto whose shoulders the blame is sought to be thrown. See also Mowlds v. Fergusson [1940] HCA 38; (1946) 64 CLR 206 at p 219 per Williams J.

93. Privilege may exist in relation to a communication to the public generally which is a reply to a public attack so long as the matter it contains is relevant to the defence against the attack. Gatley, op.cit., para 561, at p 238. See Adam v. Ward (1917) AC 309.

94. I am not satisified that the publication of the article in the staff bulletin came about as a result of direct malice, whether deliberate or as a result of that recklessness which is to be equated to it. Having regard to the practice concerning the publication of press releases in the staff bulletins and to the date of the meeting held on 6 March 1986, I do not think that anybody turned his or her attention to the possibility that publication of the press release which subsequently became the article in the bulletin would take place in fact and that it might be defamatory of the plaintiff. Certainly Ms Wall was not actuated by malice nor did she act recklessly.

95. It seems to me that although I am dealing with the later publication of the article, the question of whether qualified privilege is to be available to the Authority depends first on consideration of the press release itself.

96. I think that the Authority was entitled to defend itself against the attack which had been made against it in the Canberra Times of 20 February 1986 and that any appropriate response made to that attack would ordinarily have been the subject of qualified privilege unless malice were shown.

97. The malice with which I am concerned is not malice presumed because of the very fact of the publication of defamatory material but malice in fact or actual malice.

"Where words are published on a privileged
occasion, the mere proof that they are false
is not evidence of malice. 'Even though the
statement should be untrue in fact, the
(defendant) will be held justified by the
occasion unless it can be shown to have
proceeded from a malicious mind.' 'Mere
falsehood is certainly no disproof of bona
fides.' But proof that the defendant knew
that the statement was false or that he had
no genuine belief in its truth when he made
it would usually be conclusive evidence of
malice. 'If a man is proved to have stated
that which he knew to be false, no one need
inquire further. Everybody assumes
thenceforth that he was malicious, that he
did do a wrong thing from some wrong motive.'
'Indeed, it is difficult to imagine better
proof of malice than the promulgation of an
injurious statement in the knowledge of its
falsity.' 'If it be proved that he did not
believe what he published was true this is
generally conclusive evidence of express
malice . . .' 'If he publishes untrue
defamatory matter recklessly without
considering whether it be true or not, he is
in this, as in other branches of the law,
treated as if he knew it to be false.' But
failure to correct a statement which he
subsequently discovers to be false is no
evidence of malice on the part of the
defendant if he honestly believed the
statement at the time when he made it. It
would be otherwise if he knew that the
statement was false when he made it."

Gatley op.cit. para 768 at pp 331-2.

98. The matters which concern me particularly relate to the 3rd, 4th, 10th and 11th paragraphs of the press release.

99. When it was being prepared, on Thursday, 20 February 1986, Ms Williams was present with Dr McCann and Ms Alison Martin, then the Authority's public relations officer. She was with them for at least an hour. Dr Dumbrell joined the meeting towards its end and was there with the other three for perhaps 5-10 minutes, possibly a little more. No question was directed to him concerning his part in what had happened and he made no comment. One would have expected that before the 3rd paragraph of the press release was drafted a check would have been made with Dr Dumbrell to ensure that it was accurate.

100. I do not understand why it was necessary to use the words "who is employed on a fee-for-service basis" in the 4th paragraph but do not take them as necessarily evidence of malice in the sense of that word with which I am presently concerned.

101. As to the 11th paragraph, I am satisfied that a simple enquiry would have established that the hospital was perfectly well aware of Adam Collins' particular circumstances because of its possession of a very substantial file on his treatment over a number of years. In not making any enquiry concerning that file and in drafting that paragraph without having checked to see whether such a file existed, I am satisfied that those drafting the statement acted recklessly.

102. Finally, I am satisfied, for reasons already given, that the last paragraph of the press release was false.

103. I refer also to my earlier discussion of the article.

104. The persons preparing the press release sought advice only from Ms Williams as to what had happened. I do not think she was actuated by deliberate spite or malice against the plaintiff although I am satisfied she did not then like him. What I think happened was that she was not as concerned as she should have been to ensure that the statements made were accurate. I believe her dislike for him was such that she was not unhappy to see him in an apparently embarrassing position and that this rendered her reckless of the truth.

105. In these circumstances I find that there was malice sufficient to negative the defence of qualified privilege.

106. In making the finding of malice I am mindful of what Lord Diplock said in Horrocks v. Lowe (1975) AC 135 at p 151. Of course, the burden of proof of malice lies on the plaintiff, but I find it discharged the more readily when none of Dr McCann, Mr Sexton or Ms Martin gave evidence.

107. It follows, therefore, that the defence of qualified privilege based on the publication of the press release as initially, of course, it must be, fails.

108. If I be wrong in that view and the publication of the press release on 19 February 1986 was the subject of qualified privilege, there still remains the question as to whether its republication in edited form as the article in the staff bulletin attracts qualified privilege.

109. I am satisfied that in ordinary circumstances publication in the staff bulletin of a press release issued in response to an attack on the Authority would, having regard to the identity of the vast majority of those on the distribution list of the staff bulletins, be the subject of qualified privilege for such publication would, it seems to me, be a communication by the Authority which would have an interest in defending itself to those legitimately interested in knowing how that defence was being made.

110. But it seems to me that in this case all occasion for publication of the article had passed. The plaintiff and the hospital had dealt with the situation which had given rise to the attack in the Canberra Times, Dr McCann had been told that at least one significant passage of the press release was false or, at best, misleading, Mr Bissett had apologised for the publicity and all parties believed that the matter had come to an end. In the circumstances, it seems to me to have been incumbent upon the Authority to ensure that the normal practice of publishing the press release in the staff bulletin was not followed. In the result the statement could hardly have been said to have been "fairly made by a person in the conduct of his own affairs, in matters where his own interest (was) concerned". Toogood v. Spyring (supra).

111. As is obvious from what I have already written, the plea of justification must fail because the article is in many respects substantially untrue.

112. There must therefore be judgment for the plaintiff for damages.

113. In assessing damages, I take into account the injury to the plaintiff's reputation and the injury to his feelings. Of course, damage to reputation is assumed once it has been proved that defamatory matter has been published of a plaintiff. Ratcliffe v. Evans (1892) 2 QB 524 at pp 528 and 530.

114. That the plaintiff was and, indeed, still is held in high repute is beyond doubt. I have already found this to be so, having accepted all the evidence as to his reputation.

115. It is very serious thing to suggest that a doctor is indifferent to the welfare of his patient as I am satisfied the Authority did and this must be reflected in the award of damages. I accept that the plaintiff was angry and outraged at the publication of the article and concerned for the damage to his reputation and these matters must be taken into account as part of the injury to his feelings.

116. I take into account the conduct of the defence and refer to three particular matters. The first was the plea of justification which failed. The second was the cross-examination which disputed in particular the plaintiff's contention that Adam Collins was not in pain due to the subluxing hip. Eventually, as I have said, but not until the closing address by senior counsel for the Authority, it was conceded that the boy was not suffering pain from the hip. The third was the allegation that the plaintiff was guilty of humbug.

117. I take into account the circumstances of the publication and the failure of the defence of qualified privilege, incorporating as it necessarily does a finding of malice.

118. I take into account the extent of the publication, bearing in mind particularly that it was likely to come to the attention, directly or indirectly, of a large number of those engaged in the medical profession in Canberra and would accordingly be all the more damaging for that. At the same time, I take into account that the article was not published in a newspaper but in a staff bulletin with a much more limited circulation than an average daily newspaper. I note that the Canberra Times at the relevant dates had a circulation in the vicinity of 40,000 daily.

119. Mindful of the need to be moderate and fair to both sides, I think that an appropriate award of damages is $40,000.

120. Interest is claimed. I think that by far the greater part of the damage which the plaintiff suffered would have been suffered in the first six or seven months after publication. It seems to me, therefore, to be appropriate to allow interest for two years and a quarter at 14% and I do so.

121. There will be judgment for the plaintiff for the sum of $52,600 and costs.