Cavric v Nationwide News Pty Ltd

[2015] NSWDC 107

District Court

New South Wales

Medium Neutral Citation:	Cavric v Nationwide News Pty Ltd [2015] NSWDC 107
Hearing dates:	25 June 2015
Date of orders:	25 June 2015
Decision date:	25 June 2015
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Imputations 4(a) and 6(a) are capable of being conveyed and will go to the jury. (2) Imputations 4(b) and 6(b) are capable of being conveyed and will go to the jury. (3) Imputations 4(c) and 6(c) are capable of being conveyed as a fall back to imputations 4(b) and 6(b) respectively and will go to the jury in that form. (4) The plaintiff is granted leave to replead imputations 4(d) and 6(d) as follows: “The plaintiff attempted to deceive the New South Wales District Court by exaggerating her injuries in her claim for compensation”. (5) Imputations 4(e) and 6(e) are struck out. (6) Costs to be the parties’ costs in the cause. (7) The plaintiff is to file and serve an Amended Statement of Claim by 4:00pm Wednesday 1 July 2015. (8) Matter stood over for further directions to Thursday 2 July 2015 at 9:00am in the Defamation List.
Catchwords:	TORT – defamation – imputations – form and capacity
Legislation Cited:	Defamation Act 1974 (NSW), s 9 Uniform Civil Procedure Rules 2005 (NSW), rr 21.1 and 21.3
Cases Cited:	Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Fairfax Media Publications Pty Ltd v King [2015] NSWCA 172 Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 John Fairfax Publications Pty Ltd v Blake; David Syme v Blake (2001) 53 NSWLR 541 Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 Nationwide News Pty Ltd v Hibbert [2015] NSWCA 13 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 Toben v Milne [2014] NSWCA 200 Younan v Nationwide News Pty Ltd [2013] NSWCA 335
Category:	Procedural and other rulings
Parties:	Plaintiff: Despina Cavric Defendant: Nationwide News Pty Ltd
Representation:	Counsel: Plaintiff: Mr R Rasmussen Defendant: Mr M Lewis Solicitors: Plaintiff: NSW Compensation Lawyers Defendant: News Corp Australia
File Number(s):	2015/133007
Publication restriction:	None

Judgment

1. These are my reasons for the orders I made following argument as to the form and capacity of the imputations pleaded as arising from two publications by the defendant, respectively entitled “Trolley Lady Loses $285k Compo Crash” and “Woman hit by a shopping trolley loses her bid for compensation as judge rules she exaggerated her injuries”. It was not possible for me to give reasons in an oral judgment due to my commitments to other proceedings before me for hearing on the same day.

2. The matters complained of are a newspaper publication in the Sunday Telegraph dated 11 May 2014 (the first matter complained of) and a website publication on the Daily Telegraph website dated 10 May 2014 (the second matter complained of). They are in more or less identical form, although the website publication contains minor variations which repeat and highlight portions of the text, and a different headline. The text of each of the matters complained of is set out in a schedule at the end of this judgment.

3. The imputations pleaded to arise from each of the publications (paragraphs 4 and 6 of the statement of claim) are as follows:

1. The plaintiff was a malingerer (whole article).

2. The plaintiff lost her bid for compensation because she exaggerated her injuries (whole article).

3. The plaintiff’s District Court claim for $285,000 failed because she lied about her neck injury (whole article).

4. The plaintiff attempted to deceive the District Court (whole article).

5. The plaintiff knowingly brought a false Court case claiming $285,000 compensation (whole article).

The relevant principles

4. The test to apply to challenges to the capacity of imputations is a generous one (Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [6]), particularly the matter complained of is a loosely worded or tabloid-style publication, as is clearly the case here (Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158). Mr Rasmussen relies upon the restatement of these principles in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [135]–[136], where the court held that the determination of capacity is an issue of generosity and not of parsimony, as well as being a “matter of impression … the impression is not of what the words mean but of what a jury could sensibly think they meant”.

5. The test to apply to objections of form is set out in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135. Although Emmett JA referred to the need for precision in imputations in Fairfax Media Publications Pty Ltd v King [2015] NSWCA 172, his Honour nevertheless endorsed and applied Gleeson CJ’s explanation, in Drummoyne Municipal Council v Australian Broadcasting Corporation at 137, that an imputation capturing the sting of a general smear (such as “X is disgusting”) requires no further glossing (see also Younan v Nationwide News Pty Ltd [2013] NSWCA 335 at [20]). When considering challenges to form, the degree of precision required for the imputations pleaded must be seen in context of the matter complained of.

6. Where a ruling is sought in relation to the capacity of the matter complained of is sought, an order for a separate trial of this issue is required: Nationwide News Pty Ltd v Hibbert [2015] NSWCA 13 at [20] – [21]. I note that this step has been complied with in paragraph 4.2 of the defendant’s solicitor’s letter of 3 June 2015.

7. Having noted these principles, I now consider the objections raised in relation to each of the imputations.

Imputations 4(a) and 6(a)

8. In challenging the capacity of this imputation, Mr Lewis relies upon the Australian Oxford Dictionary definition of “malingerer” as being a person who will “exaggerate or feign illness in order to escape duty, work, etc”. He submits the matters complained of do not convey an imputation that the plaintiff has exaggerated illness so as not to work; the matters complained of referred only to the plaintiff’s exaggeration of her claim for compensation against the Willoughby City Council.

9. While it is arguable that the term “malingerer” is not restricted to exaggerating illness in order to escape work (this being the reason why the word “etc” appears in the dictionary definition), even this fairly narrow definition of “malingerer” can be met from the text of the matters complained of. Paragraph 9 states:

“The Liverpool Boys High School teacher claimed she was forced to quit her job as a result of the pain and hire a $200-a-week cleaner [to help with home duties].”

10. Mr Rasmussen submits, and I agree, that a picture is painted of a teacher who is exaggerating her illness and using it as an excuse not to work. This is sufficient to satisfy the test for capacity to convey an imputation of malingering, and imputations 4(a) and 6(a) will go to the jury.

Imputations 4(b) and 6(b)

11. Mr Rasmussen submits that the claim that the plaintiff lost her bid for compensation because she exaggerated her injuries is derived from the respective headlines, as well as from paragraph 4 in each article, which states the plaintiff “lost her bid for compensation, including a cleaner for her luxury five-bed, four-bathroom house, after a judge found she was exaggerating her injuries”.

12. Mr Lewis submits that the ordinary reasonable reader would be aware there was more to losing a claim for compensation than doing so merely because the damages were exaggerated. The ordinary reasonable reader would understand that the plaintiff lost her claim for a range of reasons, such as the apparent reference to contributory negligence issues, and that compensation and liability for negligence are two different aspects of the case. The ordinary reasonable reader would understand that merely exaggerating injuries would not result in the loss of a case where the judge was satisfied that the accident really occurred, and that the plaintiff suffered injury as a result.

13. However, the ordinary reasonable reader is not aware of the kind of legal niceties to which Mr Lewis refers and, even if the ordinary reasonable reader did have some such understanding of the legal issues involved in a claim for damages for personal injury, this confusingly structured and poorly written report unambiguously states that the plaintiff lost her “bid for compensation… after a judge found she was exaggerating her injuries”. The inclusion of the findings that she did have a trolley accident, and that the trial judge was satisfied she suffered injuries, is not inconsistent in the manner claimed by Mr Lewis. The sting of the libel is that the plaintiff lost the case because she exaggerated, despite having suffered a genuine accident, because the trial judge did not accept her evidence.

14. Mr Lewis further submitted that this imputation should be struck out as incapable of arising because the only “exaggeration” referred to in the article related to the plaintiff’s claim of neck injury. I have dealt with this argument in my consideration of imputations 4(c) and 6(c) below.

15. The objection in form is that this imputation “largely replicates” the words of the matter complained of. The submission is made that the use of such exact words may have a tendency to fail to achieve what Mr Lewis calls “adequate precision”. In this regard, Mr Lewis refers to Harvey v John Fairfax Publications Pty Ltd at [118]-[132], a decision concerning the form of imputations under the repealed legislation, where the imputation, not the matter complained of, was the cause of action (s 9 Defamation Act 1974 (NSW)).

16. Even under the repealed legislation, a plaintiff was not required to be more specific in his or her imputation than the text of the matter complained of: Drummoyne Municipal Council v Australian Broadcasting Corporation at 137. In Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 688B-C, Hutley JA stated:

“Though a defendant is entitled to know the case he has to meet, it is strange to hear the suggestion that this defendant does not understand an imputation which is precisely in the words it has used, so that it is embarrassed in justifying it. This must mean it does not know what it is alleged an ordinary reasonable hearer would make of it.”

17. This is the first of many statements by the New South Wales Court of Appeal concerning the entitlement of a party to plead an imputation using some of the language of the matter complained of. The correctness of Hepburn v TCN Channel Nine Pty Ltd was restated forcefully by Kirby J (albeit in dissent) in Drummoyne Municipal Council v Australian Broadcasting Corporation at 144 and 148. Ten years later, Hodgson JA (in John Fairfax Publications Pty Ltd v Blake; David Syme & Co Ltd v Blake at [52]-[54]), referring to both Hepburn v TCN Channel Nine Pty Ltd and Drummoyne Municipal Council v Australian Broadcasting Corporation, held that a pleader could use the words of the matter complained of. In Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 at [29], McColl JA considered that the use of the words of the matter complained of was permissible. In Toben v Milne [2014] NSWCA 200 at [21] the Court of Appeal noted that, while Harvey v John Fairfax Publications Pty Ltd contains a warning that repeating the words in the publication may not an encapsulate the sting, an imputation may “plead or closely follow the exact words used in the alleged defamatory publication”, citing John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; 201 ALR 77 at [63].

18. The use of the words from the matter complained of captures the sting of the portions of the matter complained of giving rise to this imputation. The headlines in both matters complained of, the reference to exaggeration of injuries in paragraphs 4, 11 and 13, and the description of the judge’s reasons for rejecting the plaintiff’s claim (such as the reference in paragraph 13 to the judge having “accepted the council’s claim that she was exaggerating”) are pitched at the same level of precision as the words in the imputation, and for this reason I am satisfied that this imputation’s form captures the meaning with the requisite degree of precision.

19. This imputation is capable of being conveyed and imputations 4(b) and 6(b) will go to the jury.

Imputations 4(c) and 6(c)

20. Somewhat inconsistently, having argued that imputations 4(b) and 6(b) are incapable of arising because the exaggerated injury in question was to only the plaintiff’s neck, Mr Lewis argued that an imputation to this effect was also incapable of arising, for the same reasons as his objections to imputations 4(b) and 6(b).

21. While I reject this argument, I accept his submission that these imputations and imputations 4(b) and 6(b) cannot simultaneously arise. This imputation should be pleaded as a fall back imputation to imputations 4(b) and 6(b).

Imputations 4(d) and 6(d)

22. Leave was granted to the plaintiff to replead this imputation as: “The plaintiff attempted to deceive the New South Wales District Court by exaggerating her injuries in her claim for compensation.”

Imputations 4(e) and 6(e)

23. An imputation of knowingly bringing a “false” claim is incapable of arising. This was not a “false” claim for compensation. The gravamen of the matter complained of is that the plaintiff brought an exaggerated claim, but states that the court found she suffered a genuine injury, in the course of an accident which did in fact occur. The claim cannot therefore be said to be “false”. Similarly, the matter complained of does not assert that the plaintiff “knowingly” brought a false claim.

24. Imputations 4(e) and 6(e) are struck out

Costs

25. The parties have had more or less equal success and the costs should be the costs in the cause.

Future case management

26. The defendant has raised issues in relation to the form of the pleading of the website publication. It is always desirable, particularly where defamation proceedings are commenced at the end of the limitation period, to indicate the date and place of the downloading of the matter complained of. Mr Lewis also seeks details of the “relationship” of the persons who downloaded the second matter complained of. I assume the relevance of this information is to damages. It will avoid further delay if the plaintiff provides this information. I have accordingly stood these proceedings over to Thursday 2 July 2015 for further directions.

27. I note the defendant has served a notice to retain documentation. Given the inadequacies and limitations of the discovery provisions in rr 21.1 and 21.3 Uniform Civil Procedure Rules 2005 (NSW) (Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 at [18], [59], [60], [74](e) and [113]), such a course is becoming necessary as a general precaution.

Orders

1. Imputations 4(a) and 6(a) are capable of being conveyed and will go to the jury.

2. Imputations 4(b) and 6(b) are capable of being conveyed and will go to the jury.

3. Imputations 4(c) and 6(c) are capable of being conveyed as a fall back to imputations 4(b) and 6(b) respectively and will go to the jury in that form.

4. The plaintiff is granted leave to replead imputations 4(d) and 6(d) as follows: “The plaintiff attempted to deceive the New South Wales District Court by exaggerating her injuries in her claim for compensation”.

5. Imputations 4(e) and 6(e) are struck out.

6. Costs to be the parties’ costs in the cause.

7. The plaintiff is to file and serve an Amended Statement of Claim by 4:00pm Wednesday 1 July 2015.

8. Matter stood over for further directions to Thursday 2 July 2015 at 9:00am in the Defamation List.

Schedule A

1. Trolley Lady Loses $285k Compo Crash

2. EXCLUSIVE

3. LINDA SILMALIS

4. A WOMAN who fell under an out-of-control shopping trolley has lost her bid for compensation, including a cleaner for her luxury five-bed, four-bathroom house, after a judge found she was exaggerating her injuries.

5. Despina Cavric, a mother of three, was wheeling her weekly shopping to her car at Northbridge Plaza, on Sydney’s North Shore, with her then two-year-old daughter and three-year-old son.

6. With her trolley so full of groceries that she couldn’t see over it, and her daughter seated inside, Ms Cavic [sic] claimed in the District Court that the slope of the Willoughby Council carpark forced her to pull back on the trolley in a bid to stop it falling over.

7. But it toppled after hitting a pothole, causing both the trolley and her daughter to fall on top of her, injuring her neck, upper back, lower back, left hip and right thigh.

8. The court heard Ms Cavric, 40, of Northbridge, sought treatment from two orthopedic [sic] surgeons, a psychologist and a pain specialist to treat her injuries from the 2011 accident.

9. The Liverpool Boys High School teacher claimed she was forced to quit her job as a result of the pain and hire a $200-a-week cleaner.

10. Ms Cavric also hired a gardener, although he had since been let go with her husband Ned mowing the lawn.

11. The court heard that scans of her injuries had failed to reveal the cause of her pain, although her left knee had a torn meniscus. District Court Judge Michael Elkaim said he believed Ms Cavric was injured, but accepted the council’s claim she was exaggerating.

12. He said covert surveillance of Ms Cavric suggested she was able to move her neck more significantly than she exhibited in the witness box.

13. “Other than for the left knee there is no objective evidence of injury,” he said. “I do not accept the extent of the neck injury that she alleges. This conclusion is primarily based on the surveillance material where her neck movements are significantly greater than those she described or exhibited in the witness box. I think there was an element of exaggeration in her movements and posture in court.”

14. Mr [sic] Elkaim also said Ms Cavric should have exercised more care by not necessarily doing all her shopping in one go, noting how she lived close by and did not work full-time. Mr [sic] Elkaim calculated the breakdown of costs which could have been awarded to Ms Cavric would have amounted to $285,000, including $73,000 for past and future domestic assistance. However, he found in favour of the council.

15. Ms Cavric declined to comment. Her husband Ned, who has provided consultancy services to NSW Compensation Lawyers, said the couple was “considering our options”.

16. [Picture of the plaintiff]

17. [Caption – “Despina Cavric [illegible] home this week. Picture: [illegible] Fastier”]

Schedule B

1. Woman hit by a shopping trolley loses her bid for compensation as judge rules she exaggerated her injuries

2. by: LINDA SILMALIS

3. From: The Sunday Telegraph – May 10, 2014 10:00PM

4. A WOMAN who fell under an out-of-control shopping trolley has lost her bid for compensation, including a cleaner for her luxury five-bed, four-bathroom house, after a judge found she was exaggerating her injuries.

5. Despina Cavric, a mother of three, was wheeling her weekly shopping to her car at Northbridge Plaza, on Sydney’s North Shore, with her then two-year-old daughter and three-year-old son.

6. With her trolley so full of groceries that she couldn’t see over it, and her daughter seated inside, Ms Cavic [sic] claimed in the District Court that the slope of the Willoughby Council carpark forced her to pull back on the trolley in a bid to stop it falling over.

7. But it toppled after hitting a pothole, causing both the trolley and her daughter to fall on top of her, injuring her neck, upper back, lower back, left hip and right thigh.

8. The court heard Ms Cavric, 40, of Northbridge, sought treatment from two orthopedic [sic] surgeons, a psychologist and a pain specialist to treat her injuries from the 2011 accident, and had since been receiving up to 20 “glucose injections” every two to three weeks from a doctor.

1. The Liverpool Boys High School teacher claimed she was forced to quit her job as a result of the pain and hire a $200-a-week cleaner to help with home duties.

2. Ms Cavric also hired a gardener, although he had since been let go with her husband Ned mowing the lawn.

3. The court heard that scans of her injuries had failed to reveal the cause of her pain, although her left knee had a torn meniscus. District Court Judge Michael Elkaim said he believed Ms Cavric was injured, but accepted the council’s claim she was exaggerating.

4. He said covert surveillance of Ms Cavric suggested she was able to move her neck more significantly than she exhibited in the witness box.

5. “Other than for the left knee there is no objective evidence of injury,” he said. “I do not accept the extent of the neck injury that she alleges. “This conclusion is primarily based on the surveillance material where her neck movements are significantly greater than those she described or exhibited in the witness box. I think there was an element of exaggeration in her movements and posture in court.”

6. Mr [sic] Elkaim also said Ms Cavric should have exercised more care by not necessarily doing all her shopping in one go, noting how she lived close by and did not work full-time. Mr [sic] Elkaim calculated the breakdown of costs which could have been awarded to Ms Cavric would have amounted to $285,000, including $73,000 for past and future domestic assistance.

7. Ms Cavric declined to comment. Her husband Ned, who has provided consultancy services to NSW Compensation Lawyers, said the couple was “considering our options”.

8. [Picture of the plaintiff with caption – “Despina Cavric failed in her bid for compensation.”]

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Decision last updated: 26 June 2015