PW v MS (No 3)
[2014] WASC 202
•10 JUNE 2014
PW -v- MS [No 3] [2014] WASC 202
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 202 | |
| Case No: | CIV:1026/2011 | 7-11 OCTOBER 2013 | |
| Coram: | LE MIERE J | 10/06/14 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Actions dismissed | ||
| B | |||
| PDF Version |
| Parties: | PW MS SS |
Catchwords: | Tort Malicious falsehood Defendants published false statements about the plaintiff Statements published to a third person False statements published maliciously Plaintiff did not suffer actual damage as a result of the statements |
Legislation: | Nil |
Case References: | Ajinomoto Sweeteners SAS v Asda Stores Ltd (2011) QB 497 Hughes v National Trustees, Executors and Agency Co of Australasia Limited (1979) 143 CLR 134 Palmer Bruyn & Parker Pty Limited v Parsons (2001) 208 CLR 388 Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158 Robert Bax & Associates v Cavenham Pty Ltd [2012] QCA 177 Williams v Smith [2012] WASC 371 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
MS
Defendant
- Plaintiff
AND
SS
Defendant
Catchwords:
Tort - Malicious falsehood - Defendants published false statements about the plaintiff - Statements published to a third person - False statements published maliciously - Plaintiff did not suffer actual damage as a result of the statements
Legislation:
Nil
Result:
Actions dismissed
Category: B
Representation:
CIV 1026 of 2011
Counsel:
Plaintiff : In person
Defendant : In person
Solicitors:
Plaintiff : In person
Defendant : In person
CIV 1027 of 2011
Counsel:
Plaintiff : In person
Defendant : In person
Solicitors:
Plaintiff : In person
Defendant : In person
Case(s) referred to in judgment(s):
Ajinomoto Sweeteners SAS v Asda Stores Ltd (2011) QB 497
Hughes v National Trustees, Executors and Agency Co of Australasia Limited (1979) 143 CLR 134
Palmer Bruyn & Parker Pty Limited v Parsons (2001) 208 CLR 388
Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158
Robert Bax & Associates v Cavenham Pty Ltd [2012] QCA 177
Williams v Smith [2012] WASC 371
1 LE MIERE J: The plaintiff, PW, is the father of a child called P and the former de facto husband of the defendant in CIV 1026 of 2011 who is the mother of P and who I will refer to as M. The defendant in CIV 1027 of 2011, who I will refer to as S, is the mother of M and grandmother of P.
2 In CIV 1026 PW alleges that M maliciously made false statements about him to Dr T, P and doctors at the ** Health Campus to the effect that he was sexually and physically abusing and neglecting P. PW alleges that Dr T republished the false statements to him (PW) and to his partner, Ms G, the Department of Child Protection and Princess Margaret Hospital Child Protection Unit. M denies that she made the alleged statements or that she did so maliciously and does not admit that Dr T republished the alleged statements.
3 In CIV 1027 PW alleges that S maliciously made a false statement about him to him and to his mother, Mrs W, and to P, M and a neighbour (PA) to the effect that PW had molested and sexually abused P. S denies making the statement or that she did so maliciously.
4 In each action PW claims that as a result of the maliciously false statements he has suffered post-traumatic stress disorder, been incapacitated from work and suffered a loss of salary.
The trial
5 Each of the parties represented themselves at trial. This presented difficulties for them in adducing evidence, particularly for PW who, as plaintiff, bears the burden of proof.
6 The actions were heard together and evidence in one was evidence in the other. PW gave evidence-in-chief by way of a witness statement in each action and oral evidence in relation to some matters and was cross-examined by M. Mrs W gave evidence by way of witness statement and oral evidence and was cross-examined by M. Dr D, who has treated PW, gave evidence in answer to a subpoena caused to be issued by PW. Dr D prepared statements in each action in response to the subpoenas. The statements are exhibits. In addition Dr D gave oral evidence and was cross-examined by M. The plaintiff called S as a witness and adduced oral evidence from her. S was briefly cross-examined by M. The plaintiff called M to give evidence and adduced oral evidence from her. After she had been examined by PW, M gave some limited oral evidence and was briefly cross-examined by S. In addition to the witness statements and oral evidence there were a number of documents adduced in evidence. After the plaintiff had closed his case the defendants elected not to call any evidence themselves.
7 Dr T is a general practitioner. M took P for a consultation with Dr T on a number of occasions. PW alleges that during those consultations M made three of the false statements about him which give rise to his action against M. PW caused a subpoena to be issued to Dr T. Dr T did not answer the subpoena. PW asked that a warrant be issued to bring Dr T before the court. In the course of hearing that application I raised with PW whether sufficient conduct money had initially been given to Dr T and whether she had been given sufficient notice of the hearing after being given sufficient conduct money. In the end, Mr PW did not pursue his application and Dr T did not give evidence. However, the documentary evidence includes a 'patient health summary' of ** Family Medical Practice, which is the medical practice at which Dr T was working at the relevant times. The summary says that it was printed on 6 March 2008. It contains notes of surgery consultations recorded by Dr T in relation to consultations with P between 1 June 2006 and 6 March 2008. The documentary evidence also includes a letter of 21 February 2008 from Dr T concerning consultations with P on 24 September 2007 and 12 October 2007 and reference to other consultations, a letter of 27 February 2008 from Dr T concerning her examinations of P and a letter of 18 August 2008 from Dr T to Princess Margaret Hospital referring P for an opinion and management. The documentary evidence also includes patient records from ** Health Campus concerning M's attendance with P at the hospital on 12 September 2007.
Outline of plaintiff's case against M
8 In his statement of claim the plaintiff alleges that M made four false statements about him. The first three are statements M allegedly made to Dr T at the ** Family Medical Practice in ** in the presence of P. The first matter complained of is that on or about 19 June 2007, M said to Dr T words to the effect of: 'PW is sexually abusing P'. The second matter complained of is that on or about 24 September 2007, M said to Dr T words to the effect of: 'PW is sexually and physically abusing P'. The third matter complained of is that on or about 27 February 2008, M said to Dr T words to the effect that PW was 'neglecting and/or abusing P'. The fourth matter complained of is that on or about 12 September 2007, in the presence of P, M said to doctors and staff at ** Health Campus words to the effect of: 'P is not safe with PW', 'P has injury (redness, legs, vaginal - genital area) by PW' and 'P has suffered non-accidental injuries, abuse with PW'.
9 PW says that each of the matters complained of were false in that he had not sexually, physically or mentally abused, or injured or neglected P. PW says that M made the statements maliciously which is to be inferred from the following matters. First, PW and M were engaged in Family Court proceedings in which custody to P was in issue. Secondly, M published the matters complained of knowing that P would hear them and did so in an attempt to damage PW's relationship with P and thereby his position in the Family Court proceedings. Thirdly, PW made the statements to Dr T in an attempt to damage the plaintiff's position in the Family Court proceedings. Fourthly, M was aware that PW had not abused or neglected P or alternatively there was no evidence that he had done so. Fifthly, M was aware that PW had not abused P in that she was in possession of medical referrals from Dr T and ** Health Campus which she did not attend or follow up which she would have done had she had legitimate concerns about P. Sixthly, at the time of making the statements M was in a relationship with a person from whom the Department of Child Protection had removed his children and made them wards of the State on the basis of sexual abuse, domestic violence and drug addiction. M was aware of this at the time she was making allegations against PW.
10 PW says that on or about 21 February 2008 Dr T told him and his then partner, Ms G, that M had made the statements to Dr T complained of. On or about 24 September 2007 Dr T republished the first and second matters complained of to the Department of Child Protection as a result of which PW was interviewed by the Department of Child Protection. PW further complains that as a result of the statements made by M to ** Health Campus, hospital staff republished her statements to Princess Margaret Hospital Child Protection Unit by way of referral. PW says that in 2007 and 2008 M published the matters complained of or similar words to P intending her to believe that PW had abused her and this resulted in extreme behaviour by P towards PW.
11 PW says that as a result of the matters complained of damage was caused to his relationship with P, he was caused severe mental anguish and traumatic shock giving rise to, or contributing to, a psychiatric condition diagnosed as post-traumatic stress disorder which he continues to experience and he was incapacitated and unable to work and continues to be unable to work. PW says that by reason of the matters complained of he suffered actual damage being the loss in value of his salary from ** Holdings Australia Pty Ltd, a company controlled by him which earned fees from his work. PW says that the damage which he complains of was intended by M or alternatively was the natural and probable result of those publications. PW seeks damages and an injunction restraining M from further publishing the matters complained of.
Outline of PW's action against S
12 PW alleges that on 1 January 2008 outside the front of the home of his mother, Mrs W, S spoke in a raised voice and published to him (PW), Mrs W, P, M and Mrs Ws' neighbour, PA, words to the effect of: 'You have molested P's vagina and bottom, you are sexually abusing P'. PW says that the words were false in that he had not sexually abused P. PW says that the words were published by S maliciously. The malice is alleged to arise from a number of matters. First, PW and M were engaged in Family Court proceedings in which custody and access to P were in issue. Secondly, S made the statement knowing that P would hear them and did so in an attempt to damage PW's relationship with P and thereby his position in the Family Court proceedings. Thirdly, S was aware that PW had not sexually abused P or there was no evidence that he had done so. Fourthly, S made the statement knowing that Mrs W would hear them and did so in an attempt to damage PW's relationship with his mother. Fifthly, S made the statements knowing that Mrs W's neighbour, PA, would hear them and did so in an attempt to damage PW's relationship with PA. Sixthly, S's statement in the presence of P, Mrs W and PA was likely to damage PW and his relationship with them. Seventhly, S made the statement knowing it to be false or recklessly not caring whether it was true. She was actuated by the dominant motive of damaging PW and his relationship with his daughter, mother and his mother's neighbour. Eighthly, S was aware that PW had not abused P and S was aware of the relationship between M and the person from whom the Department of Child Protection had removed his children.
13 PW says that as a result of S's statement P started screaming and crying, P stopped letting PW hug and touch her and damage was caused to PW's relationships with P, Mrs W and PA. PW says that as a result of S's statement he has suffered the same loss and damage as he alleges in his action against M.
Elements of tort of malicious falsehood
14 The elements of the tort of malicious falsehood, or injurious falsehood as it is also described, are:
1. the defendant published a false statement about the plaintiff, his property or business;
2. the defendant published that statement to a third person;
3. the defendant published the false statement maliciously; and
4. the plaintiff suffered actual damage as a result of the statement.
Palmer Bruyn & Parker Pty Limited v Parsons (2001) 208 CLR 388 [1] (Gleeson CJ) [52] (Gummow J) [104] (Kirby J) [154] (Hayne J) [192] (Callinan J).
Defendants' contentions
15 M and S each deny making the statements alleged by PW, deny that any statement made by them was false and deny that any statement made by them was made maliciously. For the reasons which follow, I find that M made statements similar to, although less serious than, the first, second and fourth matters complained of, that the statements she made were false and that she made them maliciously. I find that S made the statement which PW alleges, that it was false and that she made the statement maliciously.
16 The defendants say that notwithstanding those findings, the plaintiff's case does not satisfy the elements of an action of injurious falsehood on three bases. First, the false statements do not fall within the scope of the tort because they do not concern the plaintiff's goods or business or affect the person of the plaintiff in his business, professional or commercial interest. Secondly, the defendants say that the actual damage must arise from actions of the third person or persons to whom the false statement was published or republished. Where, as here, the actual damage alleged arises from republication by the third party to the plaintiff, that is not actual damage sufficient to establish the tort. Thirdly, actual damage in the form of mental harm arising from the republication to the plaintiff is not actual harm sufficient to give rise to the tort. I considered those issues on the defendant's application for interlocutory judgment and concluded that the plaintiff's case in relation to each of those issues was not so clearly untenable that it should be summarily dismissed: Williams v Smith [2012] WASC 371.
17 I find it unnecessary to address those issues in this case because I have reached the firm conclusion that the plaintiff has not established actual damage as a result of the statements complained of. PW alleges that he suffered a loss of salary from ** Holdings as a result of the statements complained of. For the reasons which I set out later in these reasons I find that PW did not suffer any loss of salary as a result of the statements complained of. Before setting out those reasons, I will give my reasons for finding that M and S made the false statements to which I have referred and they did so maliciously.
Statements made by M to Dr T
18 I will consider the evidence of statements made by M concerning PW's conduct towards P before making findings about the particular matters complained of. I do so because the statements made by M to Dr T and the ** Health Campus, or attributed to her, at a particular time should be seen in the context of her dealings with Dr T and the health campus.
19 PW gave evidence that he attended Dr T's surgery on 21 February 2008 and:
[Dr T] then said words basically that she had been examining [P] for sexual abuse on numerous occasions. She advised me that [M] had told her that I was sexually abusing [P]. She told me that she had conducted these examinations and found no evidence of any sexual abuse whatsoever. … I burst into tears crying and was an absolute mess at finding out that [Dr T] was advising me that it was being said that I was sexually abusing my own daughter and I asked [Dr T] to write this down in a letter. [Dr T] then wrote the letter … then she gave it to me …
- The letter is the letter of 21 February 2008 from Dr T (exhibit 3).
20 PW's evidence was received without objection but it cannot be overlooked that it is hearsay evidence of what M said to Dr T. In Hughes v National Trustees, Executors and Agency Co of Australasia Limited (1979) 143 CLR 134 Gibbs J observed:
There are no doubt some cases in which inadmissible evidence, having been admitted, may be treated as evidence for all purposes; for example, where one party by his conduct at the trial has led the other to believe that evidence, although hearsay, may be treated as evidence of the facts stated, and the other in reliance on that belief has refrained from adducing proper evidence, the former party is precluded from objecting to the use of the evidence to prove the facts stated. However, in general it is the duty of a judge to reach his decision on evidence that is legally admissible, and to put evidence only to those uses which the law allows. When a statement is admitted, not as evidence of its truth but simply as original evidence, the mere fact of its admission cannot enable it to be given an additional probative value which the law denies it (153).
21 Cross on Evidence (LexisNexis, last updated April 2014) at [1650] says that there is a simple view that once a hearsay statement is admitted without objection, the fact that it is a hearsay statement is relevant only on the question of weight, that is, the statement is in evidence for all purposes. The learned author says that admissibility may depend upon a doctrine of waiver as discussed by McLelland J in Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158, 170. In Robert Bax & Associates v Cavenham Pty Ltd [2012] QCA 177 Muir JA, with whom Holmes JA and Martin J agreed, said at [43] that it has long been accepted in Queensland that the general principle in civil cases is that inadmissible evidence adduced without objection must be given the probative value the court considers appropriate. Cross on Evidence at [1665] suggests that the applicable principle is that if evidence, admitted without objection, is not legally admissible in proof of any issue, it may, once in, be used as proof to the extent of whatever rational persuasive power it may have.
22 The defendants were not legally represented. It is mere speculation that they elected not to object to the hearsay evidence in the knowledge that they could have done so and for some tactical reason. Nevertheless, the evidence was led without objection and the trial proceeded on the basis that the evidence had been given. I will treat PW's statement of what Dr T said as evidence but its weight is greatly diminished by the fact that it is hearsay.
23 The letter of 21 February 2008 which PW says Dr T wrote in front of him does not say that M had told Dr T that PW was sexually abusing P. The letter says that on 24 September 2007 M advised Dr T 'that there was a risk of physical harm to [P] apparently from her father' and that on 12 October 2007 P was brought by her mother for a review of bruises on her knee and vaginal examination to look for signs of sexual abuse. The letter further says that P has been regularly checked on further occasions when she has presented to the surgery for signs of abuse.
24 The ** Family Medical Patient Health Summary states that the surgery consultation recorded by Dr T on 19 June 2007 is:
Red vagina when coming back from father's place, worried re negligence/sexual abuse, redness perivaginal and patulent vagina, no hymen, for review sarc.
- The surgery consultation recorded by Dr T on 24 September 2007 is:
Mum concerned re welfare when visits father, behaviour different when returns home, mum reports father drinking, bruises on right knee, to call [DCP] child alert, happy, playing with kids.
The surgery consultation recorded by Dr T on 12 October 2007 is:
4mm purplish bruise left knee, nil other bruises, has redness vagina, hymen intact for canestan cream qid, playing happily with toys, no signs neglect, good mother daughter interaction.
Consult with father. Custody dispute by parents. Father advises partner of mother has previous history: sexual abuse/violence to children. Both parents have equal custody. Father's contact details … father has asked to be contacted re any care of patient and have copies of notes sent. Has concern re child's welfare with mother and her partner.
26 The surgery consultation recorded by Dr T on 28 February 2008 recounts a discussion with M on 27 February 2008:
Long discussion with mother yesterday. She is upset re letter from [PW] to Department Children Services and lawyer stating child underwent 'child abuse' in the form of repeated vaginal examinations at this surgery to look for child abuse and he has stated that this was something I advised him when he presented to discuss [P]. Advised mother that [PW] was repeatedly reassured that [P] did not undergo vaginal internal examinations as we do not do this in prepubertal kids (when referring to vaginal examination in notes I used this to mean inspection of perineum and to inspect to see if the hymen was intact) and that she has not shown any distress during consults. Reassured mother that claims from [PW] re treatment and examinations P has received at this surgery are in direct conflict with what I have advised him in person. Mother given letter stating such for lawyer.
27 In oral examination M said that she had never presented P to Dr T for examination for sexual abuse. When the Patient Health Summary of Dr T's 19 June 2007 consultation was put to her M said that what she said to Dr T was that P 'had come home from her father's the night before and when I was changing her nappy I noticed that she was red'. M denied saying to Dr T that she was worried about negligence/sexual abuse. When M was referred to the letter of 21 February 2008 from Dr T she said that she did not tell Dr T that there was a risk of physical harm to P apparently from her father. M said that she did not take P in for sexual abuse examinations. She said she does not know why Dr T wrote what she did.
28 The letter from Dr T dated 27 February 2008 says:
[P] has shown no signs of physical or sexual abuse on examinations. She was not subjected to vaginal internal examinations and showed no signs of distress/discomfort during inspections. She was reviewed in accordance with protocol from and training received while I was employed as a SARC (sexual assault referral centre doctor in **). She was examined after [illegible] were voiced by her mother of neglect/abuse by [PW].
- In oral examination in reference to that letter M said that she had never advised anybody that PW had been neglecting or abusing P. M said that she did not voice concerns of neglect or abuse by PW and did not know why the doctor had written that.
29 In her letter of 18 August 2008 referring P to Princess Margaret Hospital for an opinion and management Dr T said:
Her mother has noted that on return from visiting her father's residence she was screaming, anxious, flinging arms and legs.
30 I will now consider whether M made each of the statements complained of or similar statements.
First matter complained of
31 The first matter complained of is that on or about 19 June 2007 M presented P to Dr T at the ** Family Medical Practice and said words to the effect of: '[PW] is sexually abusing [P]'.
32 I am not satisfied that on 19 June 2007 M said to Dr T words to the effect: '[PW] is sexually abusing [P]'. The surgery consultation recorded by Dr T on 19 July 2007 includes 'worried re negligence/sexual abuse'. Dr T's letter of 21 February 2008 says that P has been regularly checked when she has presented to the surgery for signs of abuse. I find on the basis of the patient health summary and Dr T's letter of 21 February 2008 that on 19 June 2007 M said to Dr T words to the effect that she was worried that P may have suffered sexual abuse or neglect by PW.
Second matter complained of
33 The second matter complained of is that on or about 24 September 2007 M presented P to Dr T and said words to the effect of: '[PW] is sexually and physically abusing [P]'.
34 The surgery consultation recorded by Dr T on 24 September 2007 does not say that M said to Dr T: '[PW] is sexually and physically abusing [P]' or words to that effect. The note gives rise to an inference that M said words to the effect that she was concerned for P's welfare and refers to bruises on P's knee but there is no reference to sexual abuse. In her letter of 21 February 2008 Dr T said that she had reviewed P on 24 September 2007 and M advised her that there was a risk of physical harm to P apparently from her father.
35 In oral examination M said that she was not concerned about P's welfare with PW, that what she was concerned about was P's behaviour when she came home on a particular occasion and that the notes are Dr T's notes and she (M) did not know what Dr T had put in them.
36 I find that M said to Dr T words to the effect that she was concerned for P's welfare when she visits PW and that P had bruises on her knee after visiting PW.
Third matter complained of
37 The third matter complained of is that on or about 27 February 2008 M presented P to Dr T and said words to the effect that PW was 'neglecting and/or abusing [P]'.
38 The only entry in the ** Family Medical Patient Health Summary in relation to 27 February 2008 is:
Surgery consultation recorded by [Dr T] on 27/02/2008
Actions:
Letter printed.
Letter written re specialist referral.
39 There is a further surgery consultation recorded by Dr T on 28 February 2008 which recounts a discussion between Dr T and M on the previous day, 27 February. I have set out that entry earlier in these reasons.
The next entry after the 28 February 2008 surgery consultation record is:
Surgery consultation recorded by [Dr T] on 5/03/2008
Actions:
Letter written re letter to [PW].
Letter printed.
41 There is no evidence that on 27 February 2008 M said anything to Dr T to the effect that PW was neglecting or abusing P.
Fourth matter complained of
42 The fourth matter complained of is that on or about 12 September 2007, in the presence of P, M said to doctors and staff at ** Health Campus words to the effect of:
[P] is not safe with [PW],
[P] has injury (redness, legs, vaginal - genital area) by [PW],
[P] has suffered non-accidental injuries, abuse with [PW].
43 The words complained of by [PW] are based on the ** Health Campus patient notes. The first words complained of are that P is not safe with PW. The notes do not say that. They say: 'Mum concerned about safety of child with her husband'. I find on the basis of the notes that M said to a health professional at the ** Health Campus words to the effect that she was concerned about the safety of P with PW. That is a different, and less serious, statement than that P is not safe with PW.
44 The ** Health Campus notes record under the heading 'Presenting Complaint': '?? injury - redness to legs & genital area'. That entry makes no reference to abuse or neglect.
45 The reference to 'non-accidental injuries, abuse' in the notes is: 'Mum concerned about safety of child with her husband raising concerns about non-accidental injury/abuse'. Those words do not say that M said that P had suffered non-accidental injuries or abuse by PW. It cannot be reasonably inferred that M said words to that effect. The inference to be drawn is that M said words to the effect that she was concerned about the safety of P with PW and concerned that PW may have caused non-accidental injuries or abused P.
Meaning of words spoken by M
46 I have found that M said to Dr T words to the effect 'I am concerned that [P] may have suffered sexual abuse or neglect by [PW]' on 19 June 2007 and words to the effect 'I am concerned that [P] had bruises on her knee after visiting [PW] and am concerned for her welfare when she visits him' on 24 September 2007. I have found that on 12 September 2007 M said to health professionals at the ** Health Campus words to the effect: 'I am concerned about the safety of [P] with [PW]' and 'I am concerned that [PW] may have caused non-accidental injuries or abused [P]'.
47 The single meaning rule, that the words complained of were deemed to bear only one natural and ordinary meaning which was the meaning the words would convey to the reasonable reader, applies in defamation cases. However, the single meaning rule does not apply in the tort of malicious falsehood: Ajinomoto Sweeteners SAS v Asda Stores Ltd (2011) QB 497. In an action for malicious falsehood, once there is any reasonably possible interpretation of the words which is false, the plaintiff may recover damages if he establishes that the words caused economic loss.
48 In relation to the first matter complained of, the words which I have found M spoke are not capable of giving rise to the meaning that PW had sexually abused his daughter, which is the meaning pleaded by PW. However, the words spoken by M are capable of giving rise to a lower level, or less serious, meaning. I find that the words spoken by M, in their context, give rise to the meaning: 'there are reasonable grounds to suspect that [PW] is sexually abused his daughter'.
49 PW pleaded that the second matter complained of gave rise to the meanings that he had sexually and physically abused his daughter and that the sexual abuse was ongoing. I have found that M said to Dr T words to the effect that she was concerned that P had bruises on her knee after visiting PW and was concerned for P's welfare after visiting PW. I find that the words spoken by M to do not give rise to the meaning pleaded by PW but, in their context, give rise to the meaning: 'there are reasonable grounds to suspect that [PW] has physically abused [P] and her welfare is at risk when she visits him'.
50 PW pleaded that the fourth matter complained of gave rise to the meanings that his daughter is not safe in his care, he has sexually abused and has injured and abused his daughter. The meaning of what M said is coloured by the circumstances in which she made the statements. In her oral evidence M said that she took P to ** Health Campus 'because she was red around her groin area and I wanted to know how she had become red and what I could do to get rid of it'. It appears from the health campus notes that M took P to the emergency department. It appears from the triage/nursing assessment that P was not distressed. The emergency department medical assessment and medical notes appear to be signed by the same health professional. That doctor or nurse has recorded that the 'presenting complaint' presented by M was 'redness to legs and genital area' and '?? injury'. It is in that context that M said to the doctor or nurse words to the effect that she was concerned about the safety of P with her husband and about non-accidental injury/abuse. These considerations lead me to conclude that M's statements, taken as a whole, give rise to the meaning: 'there are reasonable grounds to believe that [PW] has sexually and physically abused his daughter'.
M's statements are false
51 There were no reasonable grounds to suspect or believe that PW had sexually or physically abused or neglected P. M said in her oral evidence that she did not believe that PW had sexually abused, physically abused, mentally abused, neglected or injured P. The patient notes from ** Health Campus disclose no evidence of sexual abuse. Dr T's surgery consultation notes and her letters are to the effect that P showed no signs of physical or sexual abuse on examination. I find that the statements made by M were false.
Statements made by S
52 In his statement of claim PW alleges that on 1 January 2008 outside the front of the home of his mother, Mrs W, S said in a raised voice words to the effect of: 'You have molested [P's] vagina and bottom, you are sexually abusing [P]'. In her defence S denies that she spoke those words.
53 In his witness statement PW gave the following account of what happened:
On 1 January 2008 I was at the front of my mother's … home … which shares a common boundary with the home of [PA] …
I was at the top of the driveway with my mother awaiting the arrival of [M] with [P] for Family Court of Western Australia orders contact (handover) for [P] and I. [PA] the next door neighbour was to the right of myself and my mother at the front of her home.
Between approximately 8.30 am and 9.00 am … [M], [S] and [P] arrived at my mother's home. Both [M] and [S] got out of their car together with [P] and stood approximately one - one and half metres in front of my mother and I.
At this time [S] pulled out a white tape recorder and placed it within two to three inches of my face and yelled aggressively and loudly the words or words to the effect 'you have molested [P's] vagina and bottom'. I slapped [S's] hand with the tape recorder in it to get it out of my face and it fell onto the ground. I said 'what are you talking about' …
[M] then refused to hand over [P] for Court Ordered contact and I started to approach her to get [P] and she commenced walking around the car saying 'you can't have [P] and you're never going to get her'. I walked around the car continuously saying to [M] 'put [P] on the ground and leave'. It was at this time I noticed [S] trying to attack my mother who is in a wheelchair without the use of one arm and leg. I pulled [S] off my mother and restrained her on the bonnet of the car until she came down, during this [S] was yelling abuse at me and my mother.
Eventually [M] put [P] down on the ground and I picked her up and ran down the driveway with [P] in my arms and my mother coming down the driveway behind me. It was at this time [M] ran down the driveway and grabbed my mother's hair as she was trying to escape.
My mother, [P] and I got inside the house and called the police who attended.
54 In cross-examination it was put to PW that S was standing very close to him when she spoke and she spoke softly so that it was only for him to be able to hear. He denied that.
55 Mrs W gave evidence by witness statement. She said:
On 1st January 2008 [PW] and I waited at the top of my driveway …
At the handover for [P] and [PW] both [M] and [S] where [sic] present.
During this handover [S] started screaming and yelling at [PW] very aggressively and stated words or words to the effect directed at [PW], 'you have molested [P's] bottom and vagina'. At this time both [M] and [S] were approximately within 2 meters [sic] distance from [PW] and I. My next door neighbour [PA] was to the right of [PW] and I within three metres.
56 In oral evidence Mrs W said that S spoke the words very aggressively. Mrs W said that P started crying and was very distressed by what had been said. In cross-examination Mrs W said that she did not believe what S had said and her relationship with PW did not change after that day.
57 In oral evidence S said that when she and M got out of the car, PW and his mother were coming down the driveway yelling abuse and Mrs W said to M: 'how can you be with someone that sticks his fingers up his kids' arses'. S said that that accusation had been made many times before and on this occasion, as a comeback, she said: 'is that what you do to P?' S said that what happened thereafter was as follows. S was holding a tape recorder in her hand. PW knocked the tape recorder out of her hand and knocked her glasses off her face. PW held S across the bonnet of the car and was holding her down with one hand and holding P in his other arm. PW let S go when M got P out of his arms. P was crying. PW grabbed M and threw her to the ground and went to get P out of the car where M had placed her. S went to stop PW and he threw her onto the ground. PW then got P and walked off. M went after PW. PW picked M up by the throat and threw her into a fence. After that S rang the police.
58 In her oral evidence M said that she had given evidence as a witness in the Family Court proceedings concerning custody of P. M agreed that in answer to the question: 'Your mother yelled out, "you have sexually abused [P's] vagina and bottom", didn't she? Yelling at me with [P] in my arms, didn't she?' She had answered: 'Mum said something like that'. The examination continued:
So, is it your evidence that your mother did say at that time on 1 January 2008, that I was sexually abusing [P's] bottom and vagina?---No.
…
So, she said something like that? Is that your evidence?--- Yes. That was what I said.
Okay. So, she said something like, 'you've molested [P's] bottom and vagina?'--- No.
What did she say?--- I can't recall exactly what she said.
Then something like that? You just said a minute ago?---My evidence that I previously gave was that Mum said something like that.
… And that's what you heard?--- Well, I heard something like that. I didn't hear those particular words.
59 I accept the evidence of PW and Mrs W that S said words to the effect: 'You have sexually abused [P's] vagina and bottom'.
Meaning of words spoken by S
60 PW pleads that in their natural and ordinary meaning the words spoken by S meant that he had sexually abused his daughter. I find that the words spoken by S do give rise to that meaning.
S's statement is false
61 S admits in her defence that PW had not sexually abused P. It necessarily follows, and I find, that the statement made by S was false.
Publication of M's statements
62 M made the statements in the first and second matters complained of to Dr T. P was present on each occasion. PW gave evidence of P's reactions to him between September 2007 and February 2008. He said that P was distressed and greatly upset at nappy changing times, stating 'what ya doing Daddy', 'what ya doing Daddy with your fingers, don't touch me there', '[P] naughty fingers', 'Daddy naughty fingers' and 'Shh Daddy it's a secret'. PW says that in October 2007 he witnessed P holding her groin and screaming when he asked her what is wrong she said 'That's where you hurt me Daddy'. However, the evidence does not establish that that behaviour of P was a result of the statements made by M to Dr T which PW complains of in this action. I accept the evidence of PW concerning P's subsequent behaviour towards him. I infer from that behaviour that P had been led to believe that PW had interfered with her or not attended to her physical hygiene appropriately. I am unable to find that that was a result of the first, second or fourth matters complained of.
63 PW's partner, Ms G, was present when he saw Dr T on 21 February 2008. PW says that Dr T then said that M had told her that PW was sexually abusing P. I have found that on 21 February 2008 Dr T said to PW that M had said to Dr T words to the effect that she was concerned for P's welfare when she visits PW and that P had bruises on her knee after visiting PW.
64 The evidence does not establish that the statements made by M were otherwise republished by Dr T. The statements made by M at ** Health Campus were made to at least one doctor or nurse. The evidence does not establish that the statements were republished by any of those health care professionals.
Publication of statements by S
65 The statements made by S were made to PW and were heard by Mrs W. I accept the evidence of PW and Mrs W that the neighbour, PA, was nearby. I find that PA heard the statements made by S. There is no evidence that the statements made by S were republished to anyone else. Sadly, P was at the centre of the incident that took place outside Mrs W's home. I accept that she was crying and distressed. That is to be expected, given the behaviour of her parents and grandparents on that occasion. I make no finding whether P heard and understood the particular words spoken by S on that occasion.
66 As I have said, I accept the evidence of PW concerning P's subsequent behaviour towards him. I infer from that behaviour that P had been led to believe that PW had interfered with her or had not attended to her physical hygiene appropriately. I am unable to find that that was a result of the statement made by S on 1 January 2008.
M's statements made maliciously
67 I accept that M took P to see Dr T because she was concerned about P's welfare. However, M made the statements that she was worried that P may have suffered sexual abuse or neglect by PW when she had no such concern. As I have said, M's evidence was that she did not believe that PW had sexually or physically abused or neglected or injured P. She said that she had never presented P to Dr T or any other doctor or hospital for examination for sexual abuse. She said that she had never said to Dr T that she was worried about negligence or sexual abuse. M gave evidence and had an opportunity to say that she was worried for the welfare of P with PW and worried that he might have abused her. M gave no such evidence. I infer that M made the statements she did to Dr T and to the ** Health Campus maliciously.
S made statements maliciously
68 S gave evidence that she did not believe that PW had sexually or physically abused or neglected P. S gave evidence and had the opportunity to say that she believed PW had abused P if that was her state of mind. She did not. To the contrary, she said, in effect, she knew that PW had not done that. I infer that S made the statements that she did maliciously.
Actual damage
69 In an action for malicious falsehood the plaintiff must prove that he suffered economic harm as a result of the false statements. PW says that he was unable to work after 1 January 2008 because the statements by M and S complained of caused, or contributed to, him suffering post-traumatic stress disorder. PW says that he suffered a loss of salary from ** Holdings because of his inability to work caused by that post-traumatic stress disorder.
70 PW first became aware that M had made the statements complained of on 21 February 2008 when Dr T informed him of those statements. PW knew of the statement made by S on 1 January 2008 because it was made to him. PW says that prior to that time he had been working and paid by ** Holdings. PW provided services to ** Australia Pty Limited, ** Resources Australia Pty Limited and ** Minerals Pty Limited which were companies engaged in the mining industry and which he controlled. PW said that those companies paid ** Holdings for his services and ** Holdings paid him. Sometime in 2007 a company called ** Capital entered into an agreement with ** Australia, ** Resources and ** Minerals. The relationship did not go well and ** Capital caused ** Australia, ** Resources and ** Minerals to be placed in administration. Those companies ceased paying fees to ** Holdings and ** Holdings ceased having any funds to pay to PW.
71 PW said that in 2006 or 2007 each of ** Australia, ** Resources and ** Minerals paid ** Holdings $6,356 a month for PW's services and ** Holdings paid those fees to PW. PW said that prior to January 2008 ** Holdings was receiving approximately $228,000 a year from ** Australia, ** Resources and ** Minerals and paying him a proportion of that income and the rest went to pay his Family Court lawyers. PW did not produce any documents to prove the amounts paid by ** Australia, ** Resources and ** Minerals to ** Holdings or the amounts paid by ** Holdings to PW or on his behalf to lawyers in respect of fees in relation to the Family Court proceedings.
72 PW said that he was working managing the three ** companies until the incident on 1 January 2008 when S shouted at him that he had sexually abused his daughter. PW says that as a result of that statement and subsequently learning of the statements made by M to Dr T he suffered post-traumatic stress disorder and was unable to work. PW says that the ** companies collapsed because of his inability to manage them.
PW has not suffered post-traumatic stress disorder as result of matters complained of
73 M cross-examined PW about his receipt of a Newstart allowance from Centrelink. In the course of that examination PW said that M had organised an assault on him on 7 August 2007 as a result of which he took two months off work as a result of a head injury sustained in the assault.
74 Dr D is a general practitioner. She has no specialist qualifications or experience. At the time of the trial in October 2013 she had been working fulltime as a general practitioner for two to three years. PW caused a subpoena to be issued to Dr D in each action. Apparently in the belief that a subpoena to produce documents could require the recipient to answer questions, the subpoena asked Dr D to answer certain questions. In response to each subpoena Dr D produced a statement which answered the questions. After listening to Dr D's oral evidence I am unable to place much reliance upon the answers in her statements because for the most part they merely repeat what PW had told Dr D or the opinion of other doctors or psychologists. I place much more reliance on Dr D's oral evidence.
75 Dr D's evidence is to the following effect. She first saw PW on 5 August 2010. PW described symptoms of post-traumatic stress starting on 7 August 2007. She was unable to comment on PW's inability to work from 2007 but he had sought out medical certificates. She had encouraged PW to consider trying to re-enter the workforce at times but he described many symptoms which would make it difficult for him to resume fulltime work. Over the time she has been treating PW his main focus has been to seek some sort of justice and that has affected his ability to focus and concentrate on other areas of his life. She has access to notes which show that PW presented on 7 August 2007 following an assault and since that time PW has experienced ongoing symptoms of distress which is consistent with post-traumatic stress.
76 Dr D did not make the diagnosis of post-traumatic stress disorder. The diagnosis followed on from other previous doctors and psychologists' diagnoses. PW's symptoms fit the criteria for post-traumatic stress disorder. In September 2010 PW told Dr D that he was feeling frightened, was in hiding and was distressed. PW said that that was because M's then boyfriend had made threats to kill him. At the time Dr D thought that PW's post-traumatic stress was related to the previous assault and threats made by M's ex-partner. Dr D was not aware of the allegations of abuse by PW until 4 February 2011. PW did not tell Dr D of the incident on 1 January 2008 when S accused him of abusing his daughter.
77 The evidence does not satisfy me that PW has suffered post-traumatic stress disorder as a result of, or caused or contributed to by, the statements by M and S complained of in these actions. The only evidence that PW suffers from post-traumatic stress disorder is that of Dr D. Dr D did not see PW until August 2010. She then based her diagnosis upon diagnoses of others, although the symptoms which PW described to Dr D were consistent with that disorder. Dr D was informed of an assault upon PW in August 2007 and a resulting head injury. She understood that his stress disorder started from then. In September 2010 PW described symptoms of stress and being frightened as a result of death threats. PW did not inform Dr D of the statement by S on 1 January 2008 that he had abused his daughter and did not inform Dr D of the allegations of abuse against him until February 2011.
78 In her witness statement, prepared in answer to a subpoena caused to be issued by PW, Dr D said that PW suffers from post-traumatic stress disorder which is partly due to the allegations of sexual abuse and neglect by M and S. I place no weight on that opinion for the following reasons. Dr D has no relevant expertise or experience beyond that of a general practitioner of two or three years standing. Dr D did not make the original diagnosis of post-traumatic stress disorder, but in effect adopted the diagnosis from others. Dr D said that PW had been describing symptoms of post-traumatic stress since 7 August 2007 and the post-traumatic stress disorder has been going on since August 2007. Dr D said that since the assault occurred in August 2007 PW has 'experienced ongoing symptoms of distress which is consistent with post-traumatic stress'. PW put to Dr D that, in effect, the condition resulting from the assault on 7 August 2007 was temporary and that he 'would have just taken time off for a couple of months'. Dr D said she did not believe that to be true.
79 Dr D said that the assault in August 2007 and the allegations of sexual abuse were separate issues but the symptoms and the effect that they have produced long term have crossed over and she believed that both incidents had resulted, to some degree, in post-traumatic stress but she could not separate how much was due to which of those events. However, although Dr D started treating PW in August 2010 he did not tell her of the sexual abuse allegations by M until February 2011 and he did not tell her at all about the allegation by S.
80 The evidence does not establish that PW ceased work as a result of the statements by M and S complained of. The statement by S was made on 1 January 2008. PW did not become aware of the statements by M until 21 February 2008. PW stopped work in August 2007. PW claimed that he returned to work in 2007 and stopped again after the incident with S on 1 January 2008. I do not accept that evidence. A medical certificate dated 7 September 2010 from Dr R states that PW had been unfit for work from 7 August 2007 to 30 June 2010. That certificate states that the diagnosis was post-traumatic stress disorder and depression and the date of onset of the condition was 7 August 2007. In his declaration to the Child Support Agency of 30 August 2010 PW declared that he had been medically incapacitated and not able to work from 7 August 1007 to 30 June 2010. In short, the evidence is that PW was incapacitated from work from 7 August 2007, that is before the incident with S and before he learned of the statements by M complained of.
81 I am not satisfied that the allegations of sexual abuse contributed to PW's post-traumatic stress disorder. If, contrary to that finding, the sexual abuse allegations contributed to any degree to PW's post-traumatic disorder then I find that he would have been incapacitated and unable to work by reason of the disorder which commenced in August 2007 irrespective of the effect of the sexual abuse allegations. PW did not work at any time after August 2007. When he saw Dr D in September 2008 he told her that he was frightened, in hiding and distressed because of the threats to kill him. It was not until after he commenced these proceedings, on 11 January 2011, that PW informed Dr D of the sexual abuse allegations by M.
No loss of income established
82 PW's claims about his income from ** Holdings are inconsistent with his income tax notices of assessment. His notices of assessment for the years ending 30 June 2006 and 2007 state his taxable income to be $41,370 and $33,549 respectively. PW's notices of assessment for the income tax years ending 30 June 2008, 2009 and 2010 show that his income was nil. That is, PW received no taxable income after 1 July 2007. That is, PW had ceased receiving any taxable income prior to the incident with S and becoming aware of the statements by M complained of.
83 In a letter of 30 August 2010 to the Child Support Agency PW said:
[W] Family Trust structure inclusive of ASIC searches showing companies and interests placed into Administration 1st August 2007 whereby no financial assistance ever received as suggested by CSA.
- PW said that he resigned from the companies as a result of ** placing them into administration and taking the assets because he had collapsed. The ASIC record shows that Mrs W notified ASIC on 11 March 2008 that PW had ceased to be a director and secretary of ** Holdings and that she had been appointed a director and secretary. PW did not learn of the allegations made by M until 21 February 2008, that is more than five months after his companies were placed into administration and less than three weeks before Mrs W notified ASIC that PW had ceased to be a director of ** Holdings. I find that the failure of ** Holdings and the other related companies was not caused to any degree by the statements complained of in these actions. It is not necessary to make any finding as to the extent, if any, that the collapse of those companies was caused or contributed to by other dealings between PW and M and her ex-boyfriend or partner, or the effect of those dealings on PW.
84 PW claims that he suffered actual damage as a result of the statements complained of. The damage claimed was the loss of salary from ** Holdings. PW has failed to establish that he suffered any loss of salary as a result of the statements made by S or M.
Conclusion
85 The tort of malicious falsehood is not actionable without proof of actual damage. Actual damage has to be proved. The damage claimed by PW is loss of salary from ** Holdings as a result of the statements by S and M complained of. PW has not proved that he suffered any loss of salary as a result of the statements by M and S complained of. PW has not proved that he suffered any other economic harm as a result of the statements complained of. PW's action must be dismissed.
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