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

1. 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.

2. 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.

3. 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.

4. 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.”

5. As to imputation 4(b), the defendants' argument focussed on specific words in the matter complained of where the effect of the words used is, so it was submitted, that it is unclear whether the reported alleged under-dosing would reduce patients’ chances of surviving. Mr Polden, who appears for the defendants, submitted that the highest meaning the matter is capable of conveying is that Dr Grygiel's conduct "might" or "may" have had an impact on patients’ prospects of recovery. He submitted that the matter may convey the meaning that the treatment put patients at risk of their survival rate being reduced, but that it is not capable of conveying the higher meaning that patients’ chance of survival was in fact reduced.

6. It may be noted that the imputation is concerned with the notion of reduction of a chance (of surviving cancer). In my respectful opinion, the submissions put on behalf of the defendants overcomplicate that concept. The burden of the argument is to fasten on an elusive distinction between the reduction of a chance and the chance of reduction of a chance. I am of the view that the matter complained of is plainly capable of conveying the imputation as pleaded.

7. Imputation 4(d) focuses on a comparison made in the broadcast between the matters reported concerning St Vincent's Hospital and Dr Grygiel and an earlier similar reporting arising from two Adelaide Hospitals. The matter complained of reports that one patient who was allegedly under-dosed in Adelaide survived but turns to the case of another who died. There is footage of the deceased patient's daughter saying, "We will be haunted forever not knowing whether if dad had the opportunity to have the full dose of treatment that he was entitled to whether that would have made a difference."

8. Mr Polden submitted that, since the burden of those remarks is the uncertainty of never knowing the true position, the ordinary reasonable viewer would be jumping to conclusions in an overly suspicious or jaundiced way if he or she were to understand the matter complained of to convey the imputation of comparability between the plaintiff's alleged incompetence and the treatment at the Adelaide Hospitals, attributed with having in fact caused the death of a patient.

9. In my view that is plainly a question for the jury. A number of the features of the matter complained of combine to the result that the ordinary reasonable viewer could reasonably understand the matter complained of in the sense contended for by the plaintiff.

10. First and perhaps most importantly, it is a serious piece presented by a well-respected journalist in a formal way. The manner of presentation is one of gravity; of reporting serious matters of public concern. Further, the question of the meaning capable of being conveyed by the matter complained of must be assessed in a contextual way; specifically, it is trite to observe that cancer is an issue which frequently causes great concern in members of the public. In my view it would be quite wrong to take the meaning pleaded by the plaintiff from the jury in this case.

11. Imputations 4(b) and 4(d) will go to the jury.

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Decision last updated: 16 April 2018