Phelps v Nationwide News
[2003] NSWSC 614
•26 June 2003
CITATION: PHELPS v NATIONWIDE NEWS & ANOR [2003] NSWSC 614 HEARING DATE(S): 26 June 2003 JUDGMENT DATE:
26 June 2003JUDGMENT OF: Levine J DECISION: 1 I enter a verdict for the defendant in respect of imputation 4(a).; 2 Imputations 4(b)-(g) will go to the jury; 3 I direct the plaintiff to file an amended statement of claim within seven days, and the defendant to file its s 7A defence within fourteen days thereafter.; 4 Pursuant to SCR Pt 31 r 2 I order the trial by jury of the issues joined between the parties under s7A of the Defamation Act 1974.; 5 I place the matter in the list to be called up for trial by jury. ; 6 The defendant is to pay the plaintiff's costs. CATCHWORDS: Defamation - imputations - capacity PARTIES :
KERRYN PHELPS
(Plaintiff)v
NATIONWIDE NEWS PTY LTD
PIERS AKERMAN
(ACN 008 438 828)
(First defendant)
(Second defendant)
FILE NUMBER(S): SC 20092 OF 2003 COUNSEL: B McClintock SC
T Blackburn
(Plaintiff)
(Defendants)SOLICITORS: Diamond Peisah &Co
Blake Dawson Waldron
(Plaintiff)
(Defendants)
Ex tempore: revised
[203] NSWSC 614IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LISTJUSTICE DAVID LEVINE
THURSDAY 26 JUNE 2003
20092 OF 2003
JUDGMENT (Defamation – imputations – capacity)KERRYN PHELPS
(Plaintiff)v
PIERS AKERMANNATIONWIDE NEWS Pty Ltd
(ACN 008 438 828)
(First defendant)
(Second defendant)
1 The plaintiff at the time of the publication complained of and at the time of the institution of these proceedings, being February and April respectively, was President of the Australian Medical Association. She complains of an article published in the “Sunday Telegraph” on 16th February this year bearing the headline, “Doctoring the Truth about a war”, and the by-line of the columnist, Piers Akerman. The text is appended hereto.
2 The plaintiff pleads that the publication carries of her the following defamatory imputations:
- 4(a) The Plaintiff is a trivial bimbo like a television quiz show barrel girl.
- (b)(i) The Plaintiff had deliberately trumped up concerns (that is fabricated issues which she knew were false) about anthrax vaccinations.
- (ii) The Plaintiff had deliberately trumped up concerns (that is exaggerated issues) about anthrax vaccinations.
- (c) The Plaintiff admitted that when she, a qualified medical practitioner, made public comments about a particular health issue, she did not know what she was talking about.
- (d) The Plaintiff, contrary to the interests of Australian service men and women had mounted a public campaign against anthrax vaccinations.
- (e) The Plaintiff is an incompetent doctor.
- (f) The Plaintiff, because of her own ignorance and unwillingness to find out the truth, rejected knowledgeable expert opinion about anthrax.
- (g) The Plaintiff had caused needless pain and suffering to Australian service men and women and their families.
3 It is only imputation 4(a), I can now indicate, with respect to which the defendants attack unquestionably must succeed. On a capacity basis, and applying the test of reasonableness, to elevate even Mr Akerman’s reference to “barrel girl” to an imputation that “the plaintiff is a trivial bimbo like a quiz shop barrel girl” stretches the concept of reasonableness beyond acceptable limits. I find the matter complained of incapable of carrying imputation (a) as a matter of law, and enter a verdict for the defendant in respect of that cause of action.
4 The matter complained of is capable, in my view as a matter of law, of carrying the two imputations set out as (b), the latter being a fallback to the former. The nub of the complaint related to “deliberately” but, on a capacity argument, that matter is sufficiently cured at least by use of the headline in the ordinary understanding of the words “trumped up”.
5 Imputation (c) was subject to criticism for ambiguity. That criticism was well founded. That imputation will be allowed on the basis that the particular health issue is identified as the only issue flowing from the matter complained of as the anthrax vaccination issue. In that respect I would allow (c) as amended and find it is capable of being carried by the matter complained of.
6 Imputation (d) was troubling, insofar as it contains the component of mounting a public campaign. Paragraph 9 relating to the plaintiff being said to have been hitting the air waves and sowing doubts about vaccinations (she is identified as the AMA’s President, omitting the disparaging adjective in paragraph 8) is sufficient to overcome that problem. I happen to notice in passing, however, that some comfort may be obtained on a capacity basis by the remarks attributed to General Cosgrove which point to there at least being a matter of public debate about the matter in paragraphs 22 and following. I hold imputation (d) to be capable of being carried by the matter complained of.
7 Imputation (e) must go to the jury. It rests on various factors and a jury is best placed to bring to bear its wisdom into determining whether, in fact, this imputation, namely, that the plaintiff was an incompetent doctor, is carried. A critical component of the argument for and against will no doubt involve that paragraph which is identified as paragraph 11. It provides information to the reader supplied by Mr Akerman as to another subject matter, apparently, upon which the plaintiff has “enlightened the public with her thoughts”, to quote Mr Akerman. For present purposes I am not persuaded that that could not be taken otherwise - in fact I am persuaded it is quite arguable that it could be taken as a serious component of Mr Akerman’s “commentary”, to use as neutral a word as possible, on the plaintiff.
8 There are other parts of the matter complained of to which I have been referred. Paragraph 8 in which Mr Akerman states Dr Phelps, as President of the AMA, considered expert views not to be good enough. Paragraph 12, which follows on from the statement as to not making an inquiry of colleagues who are experts in infectious diseases. There is sufficient to support imputation (e) on a capacity basis.
9 Paragraphs 10,12,15 and 8 especially are relied upon in support of imputation (f). Of the components of that imputation “ignorance” was acknowledged as not clearly exposed in the context of the matter complained of. Without more one would have to conclude the capacity issue in favour of the defendant. However, “unwillingness to find out” is available, particularly from paragraph 12 and the rejection of notable expert opinion is available from the same paragraph. Imputation (f) I hold to be capable of being carried by the matter complained of.
10 Imputation (g) is perhaps the clearest of them all in terms of this kind of argument. It is suggested that “angst” could not be understood to equate with “pain and suffering”. The submission does not persuade me. The suggestion that the last paragraph (36) of the matter complained of does not support what is identified as some sort of temporal difficulty associated with the imputation as framed, similarly does not persuade me.
11 This case is pre-eminently one for the jury and, save for imputation (a), there is sufficient, on a capacity argument, for imputations (b)-(g) to go to the jury.
12 I direct the plaintiff to file an amended statement of claim within seven days, and the defendant to file its s 7A defence within fourteen days thereafter.
13 Pursuant to SCR Pt 31 r 2 I order the trial by jury of the issues joined between the parties under s7A of the Defamation Act 1974.
14 I place the matter in the list to be called up for trial by jury.
15 The defendant is to pay the plaintiff’s costs.
SCHEDULE “A”
1. DOCTORING THE TRUTH ABOUT WAR
2. By: Piers Akerman
3. Defence Force chief Major-General Peter Cosgrove had his first anthrax vaccination in late 2001. He felt no ill-effects.
4. Last week, he had a follow-up shot; again, he hasn’t suffered.
5. General Gosgrove was advised to have an anthrax vaccination before visiting Afghanistan. Now he’s had a booster, and regards it as a prudent move.
6. Scientists in the US and Britain have concluded that anthrax vaccinations do not pose a health risk.
7. This is based on reports published in the British Medical Journal following research at Kings College and Manchester University – and an independent review by the US Institute of Medicine.
8. These expert views aren’t good enough for the Australian Medical Association’s mediaholic president, Kerryn Phelps.
9. She has been hitting the airwaves sowing doubts about the vaccinations, although she has as good as admitted that she doesn’t know what she’s talking about.
10. “I’d be asking some of my colleagues in infectious diseases about the risk of the vaccine (before I’d take it),” Ms Rent-a-Quote said.
11. She then moved on to enlighten the public with her thoughts on Shane Warne’s use of diuretic drugs and the possibility he may have been taking them for pre-menstrual stress. Good one, Kezza!
12. It may be that if Dr Phelps had asked her colleagues whether there were potential risks connected with anthrax vaccinations, she might not have been so quick to respond to the media. But perhaps not.
13. General Cosgrove didn’t want to talk about Dr Phelps, but kindly suggested he had “a different point of view from the AMA” and that the medicos’ barrel-girl hadn’t had time “to consider the issue deeply”.
14. It’s fortunate for servicemen and women soon to be serving in the Gulf that Dr Phelps’ uninformed views cut no ice in Canberra.
15. The anthrax vaccinations offer the best form of protection should the lethal bacteria be used by Saddam Hussein.
16. On this, General Cosgrove shares the informed view of Professor Richard Smallwood, the Commonwealth’s Chief Medical Officer, who supports the use of anthrax vaccinations for those who might be exposed to the bacteria.
17. “It’s been widely used in industrial settings in the US and Britain,” General Cosgrove told me, “and thousands of servicemen and women are now being inoculated.”
18. Fresh from farewelling the last group of special forces and clearance divers bound for the Gulf, he said moral was “sky-high”.
19. “There were no qualms about vaccination,” he said. “They knew vaccination was required to operate safely in that environment.”
20. [Photograph]
21. [Caption]
22. General Cosgrove said he understood there were many interest groups and concerned individuals expressing their views in “quite emotive terms” - and that there were a lot of people who were against all vaccinations.
23. The uninformed discussion, however, did raise unnecessary “uncertainty” in those about to have vaccinations.
24. “You can’t expect not to have opposition, but consider the implications of not vaccinating people who could potentially be exposed to anthrax without a safeguard,” General Cosgrove said.
25. Although Dr Phelps is in the dark about human anthrax vaccines, the Australian experience with anthrax vaccines for animals goes back to at least 1888.
26. In that year, a team from the Pasteur Institute successfully made a culture of Bacillus anthracis from the blood of a sheep that had died of what was then known as Cumberland disease.
27. The Pasteur team were in Australia attempting to find a solution to what was already a growing rabbit problem. They tested biological agents at Rodd Island, in Sydney Harbour’s Iron Cove.
28. According to the Australian Science Archives project, successful trials of Pasteur’s anthrax vaccine were conducted at Junee Junction in September and October of 1888.
29. Three million sheep and 50,000 cattle were vaccinated during the next eight years.
30. Despite ongoing vaccination programs, there are still periodic outbreaks of anthrax among sheep and cattle in NSW and Victoria.
31. According to the Australian Veterinary Association, the risk of its members contracting anthrax is so slight that immunisation has not been considered.
32. However, some take courses of preventative antibiotics when they are scheduled to work with anthrax material.
33. From Dr Phelps’ lame mouthings and the prominence given by the ABC to her inane chattering, it’s obvious that trumped-up concerns about anthrax vaccinations are not the real issue.
34. As a doctor, as head of the AMA, and as a public figure, Dr Phelps should have made a few simple inquiries before she exposed the vacuity of her mind to a media outlet that has shown itself to be primarily interested in mounting a case against the enforcement of UN resolution 1441 on Iraq.
35. War is, by its very nature, risky – and that is accepted by our servicemen and women.
36. They and their loved ones at home do not need contributions of additional angst created by those who admit to speaking in ignorance.
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Last Modified: 07/09/2003
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