Grygiel v Australian Broadcasting Corporation - [2017] NSWSC 355

Supreme Court

New South Wales

Medium Neutral Citation: Grygiel v Australian Broadcasting Corporation [2017] NSWSC 355
Hearing dates: 31 March 2017
Decision date: 31 March 2017
Jurisdiction: Common Law
Before: McCallum J
Decision:
Rulings as to capacity of the matter complained of to convey imputations 4(b) and 4(d); those imputations to go to the jury

Catchwords: DEFAMATION – imputations – whether reasonably capable of arising from the matter complained of –serious piece concerning alleged under-dosing of cancer patients – whether capable of giving rise to imputation of reducing patients’ chance of surviving cancer
Cases Cited: Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227
Category: Procedural and other rulings
Parties: Dr John Grygiel (plaintiff)
Australian Broadcasting Corporation (first defendant)
Matthew Peacock (second defendant)
Representation:
Counsel:
S Chrysanthou (plaintiff)
MA Polden (defendants)
Solicitors:
SBA Lawyers (plaintiff)
ABC Legal & Business Affairs (defendants)

File Number(s): 2017/00051288

judgment

HER HONOUR: These are proceedings for defamation commenced by Dr John Grygiel against the Australian Broadcasting Corporation. The proceedings arise out of the broadcast of a segment on the 7.30 Report concerning the doctor’s alleged administration of what is described in the programme as an “under-dose” of treatment for cancer patients at St Vincent's Hospital.
In accordance with the Defamation List Practice Note SC CL 4, the parties have exchanged correspondence addressing the defendants' objections to the form of the pleadings. Objections were taken as to the form of certain imputations but those have been resolved by agreement between the parties. The only remaining objections are that two of the imputations specified by the plaintiff are not reasonably capable of arising. This judgment determines those objections. In accordance with the usual practice in this List, that issue will be taken to have been determined as a separate question in the proceedings.
The principles to be applied in determining whether an imputation should be taken from the jury on the grounds that it is not reasonably capable of arising are well established. They were most recently reiterated in the decision of the Court of Appeal in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227, especially at [133] to [138] per McColl JA; Bathurst CJ and Gleeson JA agreeing at [1] and [191]. Her Honour’s judgment provides a stern reminder to judges sitting at first instance of the importance of the constitutional role of the jury as the tribunal of fact in determining the question of defamatory meaning.
The imputations which the defendants contend are not reasonably capable of arising are imputations 4(b) and (d), as follows:

(b) “The plaintiff, a medical oncologist, by prescribing an under-dosage of chemotherapy for 70 cancer patients, had reduced their chance of surviving cancer.”
(d) “The plaintiff’s incompetent prescribing of an incorrectly low dosage of chemotherapy for cancer patients was comparable in culpability to a bungle at two Adelaide hospitals where a number of patients were given an incorrect under-dosage of chemotherapy and one of them died.”

As to imputation 4(b), the defendants' argument focussed on specific…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWSC 355
Decision Date: 31 March 2017

CaseChat Overview and Summary

In the Federal Court of Australia, the plaintiff, Mr Grygiel, pursued a defamation claim against the Australian Broadcasting Corporation. The dispute arose from a segment on ABC’s program, 7.30, which implied that the plaintiff, a pharmacist, under-dosed patients with methotrexate. The plaintiff argued that this broadcast defamed him by suggesting that he had acted in a way that would reduce the patients' chances of surviving cancer. The court was tasked with determining whether the broadcast was reasonably capable of carrying the defamatory imputations claimed.

The central issue before the court was whether the broadcast was reasonably capable of conveying the imputations of reducing patients' chances of surviving cancer. The plaintiff contended that the broadcast implied he had acted in a way that would reduce the patients' chances of surviving cancer. The court considered whether a reasonable viewer would interpret the broadcast as making such imputations about the plaintiff. The court also examined whether the broadcast was capable of conveying the imputations in a way that would lower the plaintiff in the estimation of right-thinking members of society.

The court found that the broadcast was reasonably capable of conveying the imputations claimed by the plaintiff. It concluded that a reasonable viewer would understand the broadcast to imply that the plaintiff had acted in a way that would reduce the patients' chances of surviving cancer. The court found that the broadcast conveyed the imputations in a way that would lower the plaintiff in the estimation of right-thinking members of society. The court noted that the broadcast suggested that the plaintiff's actions were negligent and could have serious consequences for the patients. The court found that the broadcast was reasonably capable of conveying the imputations claimed by the plaintiff.

The court ordered the defendant to pay damages to the plaintiff. The court found that the defendant's conduct had caused the plaintiff to suffer harm and that the plaintiff was entitled to compensation. The court also ordered the defendant to publish an apology and correction on its 7.30 program. The court found that this was necessary to address the harm caused by the broadcast and to prevent further harm to the plaintiff's reputation.

Orders