The New South Wales Supreme Court recently delivered its decision in the defamation case of O’Neill v Fairfax Media Publications Pty Ltd (No 2) (click here for the decision).
Dr John O’Neill sued newspaper columnist Mr Peter FitzSimons and Fairfax Media Publications Pty Ltd alleging articles written by Mr FitzSimons in The Sydney Morning Herald defamed him.
Fairfax published an article in The Sydney Morning Herald newspaper and on the SMH tablet app on 10 February 2017. A second article was published online at the SMH’s website on the same date. The articles were opinion pieces by Mr FitzSimons on a boxing bout between Australian boxers Anthony Mundine and Danny Green.
Dr O’Neill was the appointed ringside doctor for the match by the event promoter, who was also Green’s manager.
During the fight, Mundine landed a big punch on Green’s face. Dr O’Neill was called on by the referee to assess Green. Dr O’Neill gave detailed evidence as to his physical assessment of Green leading to his medical opinion that Green had not suffered an injury and was not concussed. The fight continued.
In his regular column “The Fitz Files”, Mr FitzSimons wrote an opinion piece on the fight.
The online article was almost identical to the newspaper article The newspaper article appeared under the headline “Stop the fight! Please, stop the fight!” and the online article appeared under the headline “Comment; Danny Green suffered bleeding on the brain against Anthony Mundine, and yet they let the fight go on.” Following a discussion of the controversy as to who won the fight, Mr FitzSimons wrote:
Which brings us to the Mundine/Green fight in Adelaide last Saturday night, nominally won by Green, though lots of judges deem Mundine the rightful winner. I don’t know, and I don’t care. As many times stated, l had no desire to see two good men, let alone men over 40, try to batter the other’s brain stem to the point that the other would sink into unconsciousness and suffer brain damage while the crowd roars for more...
There was, in demonstrable fact, such obvious brain damage on the night, that a qualified judge wanted it stopped. When Mundine hit Green with a foul blow in the first round, Green went down like a shot duck and the two ringside doctors crowded into the ring to confer with the referee. One of them, Dr Lou Lewis, who had been doing this for four decades, had no doubts. Green was concussed. And he was right, as confirmed by Green afterwards. ‘I didn’t know if l was Arthur or Martha,’ he said. Well, Lewis knew exactly who he was. He was a boxer with a bleeding brain, and it was dangerous for him to continue. His job was to pull the fight. And so, ignoring Green – who kept telling the ref, ‘Let’s fight, let’s fight, I’m good to go’ – Lewis stepped up and said to the ref, ‘the fight should be stopped, I don’t want it to go on...’
The ref didn’t react.
Are you stopping the fight?’ Lewis asked, incredulous. The referee, with the backing of the other doctor, said ‘No...’ and indicated the fight could go on. ‘I’m having nothing more to do with this fight,’ Lewis said, and walked out, doing the right thing. At this point, Green’s head was in Zone Red. ‘Another serious blow when he’s already concussed, it is no exaggeration to say, could have been fatal,’ Dr Michael Gannon of the Australian Medical Association, was quoted later by the ABC. And so there you have it. A bloke with a bleeding brain was allowed to continue, risking his life, even though that one experienced ring-side doctor wanted it called off!
Dr O’Neill claimed the articles conveyed the following defamatory imputations about him:
Mr FitzSimons and Fairfax denied the publications conveyed those imputations, alternatively they relied on defences that the imputations were true, and that his column was protected as honest opinion.
Evidence was given that:
Whilst Dr O’Neill was the official ringside doctor, Mundine’s agent had appointed Dr Lou Lewis as the ringside doctor for the fight. Although it was then agreed between the reps for Green and Mundine that Dr O’Neill would be the official ringside doctor, this was not conveyed to Dr Lewis who was present at the match.
Dr Lewis was originally a defendant in the proceedings in relation to statements he made to the media that the fight ought to have been stopped based on his view that Green had been concussed.
Dr Lewis issued an apology for his remarks. Dr O’Neill then resolved his claim against Dr Lewis.
As the evidence was that Green did not suffer brain damage, the defendants did not seek to prove that Green in fact suffered bleeding on the brain or ‘brain damage’ (as that term might be commonly understood) as a result of the Mundine punch.
Mr FitzSimons and Fairfax relied on defences of honest opinion and justification.
Justification
It is an absolute defence to a defamation claim if the defendant proves the defamatory imputations are substantially true.
Her Honour Justice Lucy McCallum noted the defence does not require a defendant to prove “the truth of every detail of the words … the defence is concerned with meeting the sting of the defamation”.
The media defendants argued that they did not need to prove, with medical evidence, that Green was concussed in order to prove that it was substantially true that Green was concussed. They argued that a decision as to whether Green was concussed could be made by a person that did not have a medical degree and by watching the footage of Green following the punch.
Her Honour did not accept those arguments preferring the view that “ordinary use of the term [concussion] comprehends that concussion is a matter for diagnosis: ‘you’ve hit your head, you’d better see a doctor, you might have concussion’”. The way in which the pleadings were cast in the case meant that the defendants needed to prove the truth of Green being “in a state that warranted a diagnosis of concussion in the medical sense”.
Dr O’Neill was the only person who carried out a face to face assessment of Green and he determined at the time, and maintained the position in cross examination, a medical diagnosis that Green had not been concussed.
Accordingly, her Honour was not satisfied that, at the time the fight continued, Green had a concussion. It followed that her Honour rejected the defendants’ justification defence.
Honest opinion defence
It is a defence to the publication of defamatory matter if the defendant proves that the matter was an expression of opinion, rather than a statement of fact, that the opinion was related to a matter of public interest and that the opinion was based on proper material.
The defendants argued that the context and tone of Mr FitzSimons’ column were such that the reader would understand the purpose to be the publication of Mr FitzSimons’ views and reaction to what was already being reported in the wider press about the fight.
Justice McCallum did not accept those arguments. Her Honour stated that the article explicitly stated propositions as fact rather than expressions of opinion. In forming that view, Her Honour pointed to statements in the article including: “Danny Green suffered bleeding on the brain against Anthony Mundine”; “there was, in demonstrable fact, such obvious brain damage on the night”; “Dr Lou Lewis … had no doubts, Green was concussed”; and “he was right, as confirmed by Green afterwards.”
Her Honour held that Dr O’Neill successfully established that he was defamed by both publications. Dr O’Neill was awarded $350,000 in general damages, with 10% added for aggravated damages, being a total award of damages of $385,000.
The decision shows that justification (or truth) is the major defence to a defamation claim. It is a complete defence, but difficult for a defendant to establish as the case shows. So too is fair comment or honest opinion under the Defamation Act 2005 (WA), where the line between what is a statement of fact and an expression of opinion can be murky and difficult to draw.
Many a defendant has found that when their justification defence fails, any other defences relied on will often fail too.
Justice David Ipp of the NSW court of Appeal, and before that the WA Supreme Court, once wrote that defamation law was “the Galapagos Islands Division of the law of torts”. His Honour summed it up neatly when he wrote:
“The tort of defamation has evolved all on its own and its created legal forms and practices unknown anywhere else. It has evolved its own dialect and doctored esoteric customs… Pleadings in defamation actions are as complex, as pedantic and as technical as anything known to Dickens. Interlocutory disputes continue to beset plaintiffs and are often massive delays in getting defamation cases to trial. Damages seem out of proportion to damage awards in other categories of cases."1
The golden rule for a publisher is to ensure they have comfort in knowing that the words they intend to publish, and the meanings those words will convey, are true and can be proved so by way of admissible evidence.
That is easier said than done.
Lavan’s media and defamation team provides pre-publication legalling advice to clients wanting comfort before they publish, as well as advice to those concerned that a publication made has defamed them or injured their business.
Nick Stagg and Jasmine Sims are on hand to provide advice in this complex and difficult area.
[1] D Ipp, “Themes in the Law of Torts” (2007) 81 ALJ 609 at 615.
