Kendell v North Queensland Newspaper Company Ltd

[1994] QCA 141

IN THE COURT OF APPEAL	[1994] QCA 141
SUPREME COURT OF QUEENSLAND	Appeal No. 112 of 1993
Brisbane
Before Chief Justice Macrossan

Mr Justice Davies Mr Justice Thomas

[Kendell v. The North Queensland Newspaper Company Limited]

BETWEEN:

MONA EILEEN KENDELL

(Plaintiff) Respondent

AND:

THE NORTH QUEENSLAND NEWSPAPER COMPANY LIMITED

(Defendant) Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 12/05/1994

These are an appeal and cross appeal from a judgment given in the District Court on 10 June 1993 for damages of $60,000 with interest for defamation. That judgment followed a trial by jury. The appellant was the defendant in the action.

The alleged defamation occurred in an article in the Townsville Bulletin, a newspaper published by the appellant which circulates in Townsville and other parts of northern and western Queensland, on 18 May 1989. The article was one of several published in that newspaper about that time relating to the conduct of Ward 10B, the psychiatric ward of the Townsville General Hospital. The respondent was, at the time of publication and at the time of the events referred to in the article, which had occurred two years earlier, the nursing superintendent of that hospital.

In an earlier trial of these proceedings the respondent was awarded $35,000 damages but the appellant obtained from this Court (C.A. No. 70 of 1991, 13 May 1992, unreported) a new trial limited to the issues of identification and damages, which issues are closely related. The findings that the article contained matter defamatory of the person referred to in it as the matron and excluding defences of qualified privilege were left undisturbed.

The main submission for the appellant in this appeal was that the award of damages was manifestly excessive and against the evidence and the weight of the evidence and should be set aside or substantially reduced having regard mainly to:

(a)  the extent of identification of the respondent plaintiff;

(b)  the evidence that members of the medical and nursing professions and others would not have identified and did not identify the respondent plaintiff;

(c)  the withdrawal of the issues of aggravated and exemplary or punitive damages from the jury; and

(d)  the reasons for judgment of this Court in the earlier appeal.

A related submission was that the answer of the jury to question 1 in this trial was against the evidence and the weight of evidence. It is convenient to deal with these submissions together.

Only two questions were put to the jury. They were:

1.    Would an ordinary sensible reader of the article in the Townsville Bulletin of 18th May 1989, "There's a spy here", who knew that:

(a)	the Plaintiff was employed by the Townsville Hospital Board as the Nursing Superintendent of the Townsville General Hospital, and,
(b)	the Plaintiff was the only person who held the position of Nursing Superintendent at Townsville General Hospital

have identified the Plaintiff as the person referred to
as "the matron" or "matron" in the article?

2.    If the Plaintiff was the person so identified, what do you award by way of damages?

Having regard to the evidence to which we will refer in a little more detail later, from which it might reasonably be inferred that the respondent was identified in the article by many people because they knew of her as the matron of the Townsville Hospital (whether or not they knew that she was the Nursing Superintendent of that hospital or, if they did, whether they knew that she was the only person who held that position and, in any event, whether they knew that she was employed by the Townsville Hospitals Board) the form in which question 1 was asked seems unduly narrow. However the case was not conducted below on such a narrow basis. As we shall show, both the evidence and the learned trial judge's directions to the jury, to which the appellant made no objection, went beyond the persons who knew the facts stated in paras. 1(a) and (b) to any ordinary sensible reader who knew of the respondent as the matron of the Townsville Hospital and who would have identified her as the matron in the article.

The appellant submitted that, of the witnesses called who knew the facts stated in question 1(a) and (b) all either did not identify the respondent as the person referred to in the article or did not think less of her because of what they read. Whilst that was to overstate the appellant's case slightly, it is broadly true. The doctors and nursing staff who fell into this category knew that the respondent would be unlikely ever to be actually involved in matters in the wards and so unlikely to be in a position to do what was alleged in the article, in effect to manhandle a psychiatric patient; and most knew the respondent personally and did not believe that she would have behaved in that way. But these were only a small portion of those whom the jury, on the evidence, were entitled to accept identified the respondent as the matron referred to in the article. The evidence of this falls into a number of categories.

In the first place, there was a great deal of evidence to the effect that the respondent was the head nurse of the hospital; the person in charge of nursing at the hospital.

And there was evidence that the term "matron" was commonly understood to mean such a person. It may be doubted whether evidence of that is even necessary, it being common knowledge, we would have thought, that such a person, and only such a person, is commonly called the matron of or in a hospital.

Secondly, there was evidence of classes of people, other than medical and nursing staff, some of whom would have known of the respondent as the matron of the hospital. For example, the hospital had 130 to 140 domestic employees and there was a 15 to 20% turnover of these. Mrs O'Callaghan, a domestic supervisor, had heard members of her staff refer to the respondent as the matron. There were also more than 18,000 patients who passed through the hospital each year.

Mrs O'Callaghan had also heard members of the public refer to the respondent as the matron. Some of these patients and their visitors would have been likely to know of the respondent as the matron. Mrs O'Callaghan said that that was the title by which she was commonly addressed by staff and patients. The respondent also frequently addressed public meetings such as nursing graduation ceremonies and meetings of the Red Cross and the Blue Nurses as well as other conferences in Townsville and other places in north Queensland. It is likely that many who had attended such gatherings would know the respondent as the matron of the Townsville Hospital. It is unlikely that many of the non- professional staff, patients, visitors or other members of the public referred to would have had sufficient knowledge of the respondent's duties or her personality to be able to say that the reference to matron in the article would not have referred to her. Consequently it is likely that many of those persons who read the article would have identified the respondent as the matron referred to.

Thirdly, there was specific evidence that Mr Jones, a fitter in the Queensland Railways, who had known the respondent for about eleven years, on reading the article presumed it referred to the respondent, thought it was a bit out of context for her but, because he knew she had been under a fair bit of stress at that time, accepted nevertheless that she was the person referred to. We think that this is telling evidence, not merely as the evidence of one person, but as evidence of a reasonable reaction of someone who knew the respondent but who did not know her sufficiently well professionally to realise that it was unlikely to be a reference to her.

And finally in this respect there was the evidence of the respondent herself of persons who had indicated to her that they had identified her as the person referred to in the article and that they thought less of her for it. She gave evidence of one specific incident, in a shopping centre, where a person, whom she did not know, stopped her in the street and said: "You're the matron aren't you, of the hospital." And when the respondent replied that she was, the woman said: "Oh you're the one that's been doing those awful things." The jury would be entitled to infer that, though this was an isolated incident, it was likely that there were others who knew only that the respondent was the matron of the hospital, who had made the same assumption.

The respondent also gave evidence of two incidents in which she attributed to others reactions to her in consequence of the publication. One woman whom she thought was a friend cancelled a dinner appointment with her claiming to have a bad throat infection, yet was seen by her at another function the following night. Another woman appeared to shun her at a social function. No doubt there are other possible explanations for the conduct of each of these women. But given the proximity in time between these incidents and the publication and the generally wide publicity which the Ward 10B matter received in Townsville, it was open to the jury to infer that the explanation for each of these incidents was as the respondent thought.

As we have said, none of the evidence was objected to; nor were the learned trial judge's directions which referred, as persons who might have identified the respondent, to patients who had passed through the hospital, hospital staff and other persons who might have been present on occasions when the respondent had addressed a gathering. And it was accepted by the appellant before this Court that the case was conducted below and put to the jury on the basis that the persons whose identification of the respondent was relevant in order to assess damages were all of those ordinary sensible readers who, for whatever reason, would have identified her as the matron referred to in the article. The jury were therefore entitled to answer question 1 in that broad way and, in view of the fact that the appellant was widely known to such persons as the matron, to answer it affirmatively.

Given the wide publicity which events in Ward 10B received at this time, it would have been reasonable to infer that some of such persons would have read the article. The jury would therefore have been entitled to conclude that the respondent was widely defamed; to employees and former employees of the hospital, to present and former patients, and to other members of the public who, for whatever reason, knew the respondent as the matron of the hospital.

So far we have dealt with paras. (a) and (b) of the matters relied on by the appellant to show that the award should be set aside. Paragraph (c) referred to the fact that aggravated and exemplary or punitive damages had been withdrawn from the jury. As we understood this submission, it was that the award may be explained only on the basis that the jury must have awarded such damages. We will defer consideration of that question until after we have dealt with the other specific grounds of appeal.

The reference in para. (d) to the reasons for judgment of this Court in the earlier appeal seeks to rely on a statement made in those reasons that the award of $35,000 made in the earlier trial could only be explained if the range of publication was extremely wide. Read in context, this was a reference to a range not limited to medical practitioners and the staff of the hospital. But the Court did not suggest that that sum indicated an upper limit where, as here, the range is not so limited. It is therefore of little assistance in determining, in this appeal, whether the jury's verdict was manifestly excessive.

The other specific ground of appeal which is directly relevant to the amount of damages assessed is ground 4. The appellant's contention in this respect, summarised in its written outline, is that the learned trial judge was in error in failing to direct the jury in response to a question from the jury delivered to his Honour after the jury had retired, that the jury were entitled to award a range of damages ranging from nominal damages to damages having an upper limit determined by the extent of publication found by the jury to have occurred to those persons who, knowing the facts set out in question 1, identified the respondent as the matron referred to in the article. In oral submissions that contention was modified somewhat because of the concession, to which we have referred, that the extent of publication was not limited to those who knew the facts stated in paras. (a) and (b) of question 1. It was then submitted that the upper limit should have been determined by the extent of publication to those persons who knew the respondent was the matron and knew that there was only one matron; and that this should have been pointed out to the jury. It would have been tautologous to add a further direction limiting the extent of the publication to those who knew that there was only one matron. There is no substance in this complaint.

The contention refers to the occasion on which the jury, after it had retired, asked the learned trial judge for guidance as to the amount of damages. His Honour declined to give any monetary range and neither counsel asked him to do so. However we were informed by the appellant's counsel that he asked his Honour to indicate a range by reference to the possible extent of publication and consequent hurt; from almost non-existent publication to the maximum extent of those who knew that the respondent was the matron of the hospital, and that there was only one matron, and who thought worse of her. His Honour did say, by way of redirection, that the thousands of people who had passed through the hospital put "the outer limits of the numbers of people who might conceivably have had some knowledge of the plaintiff". His Honour was not saying in that passage that those thousands of people would have had knowledge of the plaintiff. And in saying that they represented the outer limits of those who might conceivably have had some knowledge of the plaintiff, that redirection was, if anything, too favourable to the appellant because it omitted reference to non-professional staff and to those members of the public to whom the respondent became known as the matron of the hospital through her public appearances. In any event no further redirection was sought by the appellant in respect of this direction or in respect of his Honour's failure to suggest an "almost non-existent" lower limit of publication. We do not think that there is any substance in that contention.

In the course of his oral submissions on this ground counsel for the appellant also submitted that his Honour should have stated, as the lower limit, nominal damages. This was not submitted below and his Honour was not there invited by the appellant to suggest an appropriate range of damages.

Although there may now be much to be said for the judge indicating to the jury a range of damages which might be considered appropriate (Coyne v. Citizen Finance Ltd (1991) 172 C.L.R. 211 at 235; Carson v. John Fairfax & Sons Ltd (1993) 178 C.L.R. 44 at 59, 93) it was not, and indeed could not be suggested that mere failure to suggest a range would justify interference with the verdict by an appellate court.

Moreover it is plain from the verdict in the present case

that the jury intended to award substantial damages.
Stating a lower limit of nominal damages could not, we
think, have affected this verdict.
The other specific ground of appeal relates to the refusal
of the trial judge to compel tender of part of a document
upon which the appellant's counsel had cross-examined the
respondent. Counsel for the appellant, in cross-examination
of the respondent, asked her several questions about Sister
Burnett who was the actual intended subject of the
defamatory matter. When she did not agree with what was put
to her, counsel then showed her part of a document, which he
did not then identify, and asked her to read it. After she
had read it, but before counsel asked any further questions,
or indicated to the court the nature of the question or
questions he intended to ask, her counsel asked to see the
document and it was shown to him. Counsel for the appellant
then asked the respondent whether she now agreed with what
he had earlier put to her about Sister Burnett. He also
sought to require the respondent to tender that part of the
document which, as it turned out, was part of paragraph
13.2.6 of the report of a Royal Commission into Ward 10B.
The passage in the extract from that report upon which the
appellant wished to rely was a statement that "Sister
Burnett exercised a degree of influence in the 'treatment'
of patients in the course of group therapy which was wholly
inconsistent with her limited skills".

Whilst the argument whether the principle stated in Walker v. Walker (1937) 57 C.L.R. 630 applied in this situation may be an interesting academic exercise, counsel for the appellant failed to explain how the admission of part of paragraph 13.2.6 would have been relevant to the question whether ordinary sensible readers of the paper who knew of the respondent as the matron of the hospital would have identified her as the matron referred to. It may have been arguable that those few who had also read and remembered paragraph 13.2.6 may have identified Sister Burnett, rather than the respondent, as the person referred to. But that was not submitted, no doubt for the reason that it could not have had any real effect on the award of damages. We are unable to see any other way in which that paragraph would have been relevant to either question in this case. There is therefore no substance in this ground.

It was submitted by the appellant that this Court, in determining whether an award was so unreasonable that no sensible jury properly directed could have awarded it, should look by analogy at awards for damages for personal injury, from which it could be seen that, in those cases, the general damages component exceeds or even approaches $65,000 only when the injury is very disabling. That analogy, it was submitted, serves to demonstrate that the award in this case was manifestly excessive. It was not submitted that the learned trial judge should have made this comparison. He was not asked to do so and, if he had, he probably should have declined to do so following the dictum of Toohey J. in Coyne at 235. Even on the state of the law since Carson at 59-60, it could not be said that the failure of a trial judge to invite such a comparison would entitle the appellant to a new trial or a substituted verdict. The question is whether the award is so high as to justify either of those courses. We accept that this Court, in testing whether the amount awarded is excessive, may look at awards of general damages in cases of disabling personal injury: Carson, supra. With that in mind, we turn to the final and critical question whether, on the evidence more consistent with the amount awarded, that amount was manifestly excessive; that is, one which no reasonable body of men and women, properly directed, could have awarded.

Had the identification of the respondent been restricted to medical practitioners and staff of the hospital, we may have been inclined to think that the award fell into this category. But once it is accepted, as the appellant must on a view of the evidence more favourable to the respondent, that the respondent was quite widely known among people in Townsville and the surrounding areas as the matron of the Townsville Hospital; and that most of these people would not have had the knowledge of the respondent which the professional witnesses did and which enabled them to say that they knew it was not the respondent referred to in the article; the extent of identification of the respondent was very much wider.

The generality of the evidence of the breadth of the identification left a wide range within which it was permissible for the jury to award damages. That makes the appellant's case more difficult. It is not apparent that the jury failed to take any matter into account which they should have or took into account any matter which they should not have. There is nothing, apart from the amount of the verdict from which it could be inferred that they wrongly took into account matters which could be relevant only to aggravated or exemplary damages. The jury were properly and fully directed. And we do not think that the verdict, albeit high, went outside the permissible range having regard to the factors to which we have referred.

The appeal must therefore be dismissed.

The respondent cross-appealed, seeking a variation of that part of the trial judge's judgment which ordered the respondent to pay the appellant's costs arising out of and incidental to the respondent's claim for aggravated and exemplary damages so as to delete that order.

The ground advanced was that his Honour was wrong in ruling that there was no evidence fit for the jury to consider on the question of aggravated damages. There were two reasons for this submission; first, to obtain relief on the costs order made against the respondent on the issue of aggravated damages, and secondly to avoid the possibility of an issue estoppel in the event of a new trial being ordered. From the respondent's submissions during the course of oral argument it appeared that the former was her primary reason for attacking the trial judge's ruling on this point. In any event, the second ground advanced loses its significance in the light of our conclusion on the appeal.

It was not contended by the appellant that the cross-appeal was incompetent in the absence of leave of the trial judge: Judicature Act, s. 9. Nor do we think that such a contention would have succeeded. The respondent's cross- appeal was based on the contention that the decision of the trial judge to exclude the question of aggravated and exemplary damages from consideration by the jury was wrong.

See Saunders v. McKenna [1961] Qd.R. 425.

The respondent contended that the ruling of the trial judge, that there was no evidence fit to go to the jury capable of founding a claim for aggravated damages, was wrong. No objection was taken to the ruling in so far as it related to evidence of the appellant's failure to publish an apology or a clarification; however, the respondent submitted that the trial judge erred in ruling that the failure of the appellant's servants to contact the person at Ward 10B who may have been referred to as the matron at the relevant time, or to check with the person from whom the diary had been obtained as to the identity of the person referred to as the matron, was not capable of amounting to recklessness or gross negligence upon which the jury could find that the injury to the appellant was aggravated.

It was submitted that there was a failure of the appellant's servants to check the accuracy of the story; if a proper inquiry had been undertaken it would have revealed that the person referred to in the article was the head nurse of the ward, and that the reference to 'the matron' was in fact incorrect. This failure to undertake proper investigations, it was submitted, was capable of amounting to the requisite recklessness.

Bruce Wright, the editor of the appellant newspaper, was responsible for the publication. He did not check the accuracy of the article. He believed that the question whether the person to whom the article referred was known as matron had been checked. This responsibility was left to other persons. He considered that, in the context of the article, 'the matron' referred to the head nurse of Ward 10B. He did not check with the person whom he believed was the matron whether she was known as matron, or with anyone else; nor was he aware of any of his staff having so checked.

Lee Anthony was the reporter. She was responsible for recording or transcribing the source document as the article. She also thought that the person referred to was the head nurse of the ward. She understood this from the context in which the term was used. She was aware of her identity, at least by the time the article was ready for publication. She was aware that serious allegations were made against the matron, whoever she was. She said that she was not responsible for publishing the article, though if she had been, she certainly would have contacted Mrs Burnett. Her responsibilities for checking the source document upon which the article was based, however, were more limited. They included checking who wrote it, why it was written, and where it had got to. She thought that the source document was an accurate account.

Mary-Ellen Hepworth was the collator of the article. She thought that the allegations made in it were true. She took the reference to 'the matron' in the article to be a reference to the head nurse of the unit. She did not check the contents of the source document herself. She said it was the responsibility of the reporter who was in contact with the persons concerned (ie. those who had written it and from whom it had been obtained).

Perri Evans was involved in writing the document after seeing the treatment of her brother in the ward. The reference to the matron was included because people in the unit told her that the person involved (whose conduct was the subject of the allegations) was the matron. She could not recall who had told her this; whether it was a patient or a member of staff.

Patricia Lang was the mother of the writers of the document and may have provided the document to the appellant. She said that the person involved in the treatment session was the 'deputy matron.' She had referred to her in a letter of complaint about the treatment of her son in the ward. She understood her correct title to be the Nursing Superintendent of Psychiatry. While she knew that the person referred to in the diary was the deputy matron, she did not think anyone would call her that; rather, she would be called matron for short. She saw no problem in calling her matron. It made no difference, deputy matron or matron.

From the evidence of the appellant's servants it appears that they honestly thought the person against whom the allegations were being made - the person referred to in the source document, and subsequently in the article as the matron - was the head nurse of Ward 10B. No one made inquiries of that person as to whether she was correctly called matron. It appeared that each thought that it was the responsibility of another to make inquiries as to the accuracy of the story. There is no evidence that any of them thought that the matron was some other person.

It is not apparent from the evidence that if a proper inquiry had been made of Perri Lang the inaccuracy of the reference to the person against whom the allegations had been made, as matron, would have been revealed. She thought that the person was the matron; people in the ward had told her this. Similarly, a proper inquiry of Mrs Lang would not have taken the matter any further; she saw no inaccuracy in calling the person concerned matron, even if she was really the deputy matron. As she equated the term matron with the nurse in charge of the ward, asking her whether the person referred to in the article was the matron was not likely to have revealed the inaccuracy. While an inquiry as to the accuracy of the story should have been made of Sister Burnett there was no evidence that this would have revealed the inaccuracy; that Sister Burnett would have said that the term matron did not accurately describe her or, indeed, that she would even have been prepared to speak to the inquirer.

Only if the appellant's conduct was capable of being viewed as grossly negligent, or the failure as a reckless closing of the eyes to an obvious risk of causing injury to the respondent could the question of aggravated damages have arisen. We do not think that the failure amounted to more than mere negligence. There was no reckless disregard of an appreciated risk: David Syme v. Maher [1977] V.R. 516.

Moreover the failure to make proper inquiries can be relevant only if proper inquiries would have been likely to reveal the inaccuracy: Waterhouse v. 2GB [1985] 1 N.S.W.L.R. 58 at 76. That is not the case. Contrast for example Andrews v. John Fairfax [1980] 2 N.S.W.L.R. 225 especially at 250.

We therefore reject the submission that the trial judge erred in ruling that there was no evidence capable of supporting a claim to aggravated damages. The consequence of this is that the only ground upon which the costs order was susceptible to attack has failed; the cross-appeal has failed on the merits.

The orders will be appeal dismissed with costs, and cross- appeal dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND Appeal No. 112 of 1993

Brisbane

[Kendell v. The North Queensland Newspaper Company Limited]

BETWEEN:

MONA EILEEN KENDELL

(Plaintiff) Respondent

AND:

THE NORTH QUEENSLAND NEWSPAPER COMPANY LIMITED

(Defendant) Appellant

____________________________________________________________

____

MACROSSAN C.J.
DAVIES J.A.
THOMAS J.

____________________________________________________________

_____

Judgment delivered 12/05/1994

REASONS FOR JUDGMENT - THE COURT
____________________________________________________________

_____

APPEAL DISMISSED WITH COSTS AND CROSS-APPEAL DISMISSED WITH
COSTS.
____________________________________________________________
_____

CATCHWORDS: DEFAMATION - IDENTIFICATION - DAMAGES - newspaper article defamatory of person referred to as 'the matron' - respondent was hospital's nursing superintendent - evidence that respondent could have been identified by ordinary sensible readers as the matron referred to - whether jury's verdict of $60,000 manifestly excessive - whether sufficient evidence for jury to conclude that respondent had been widely defamed - extent of identification of the respondent.

COSTS - cross appeal against order that respondent pay costs arising from respondent's claim for aggravated damages - whether judge erred in ruling that there was no evidence fit to be left to jury on that question - whether appellant's failure to make proper enquiries was capable of amounting to gross negligence.

Counsel:  J.J. Garnsey Q.C. for Appellant
M.E. Pope for Respondent

Solicitors: Thompson King Connolly t/a for Connolly

Suthers for Appellant
Hunt & Hunt t/a for Nehmer Davenport Dean

McKee for Respondent

Date(s) of Hearing:  21 and 22 February 1994