Roberman v Australian Broadcasting Corporation - [2002] WASC 56

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ROBERMAN -v- AUSTRALIAN BROADCASTING CORPORATION [2002] WASC 56

CORAM: STEYTLER J

HEARD: 26 FEBRUARY 2002

DELIVERED : 26 MARCH 2002

FILE NO/S: CIV 1179 of 2001

BETWEEN: BRIAN ROBERMAN
Plaintiff
AND
AUSTRALIAN BROADCASTING CORPORATION
Defendant

Catchwords:

Defamation - Practice and procedure - Pleadings - Television broadcast - Whether imputations lacking in precision - Turns on own facts

Legislation:

Nil

Result:

Various paragraphs of statement of claim struck out
Liberty to replead

Category: B

Representation:

Counsel:

Plaintiff: Mr D J Bishop
Defendant: Mr R L Le Miere QC

Solicitors:

Plaintiff: Clayton Utz
Defendant: Edwards Wallace

Case(s) referred to in judgment(s):

Capital & Counties Bank v George Henty & Sons (1882) 7 App Cas 741
Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440
Jones v Skelton [1963] 1 WLR 1362
Lewis v Daily Telegraph Ltd [1964] AC 234
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1
Smith v Littlemore (1996) 15 WAR 289
Taylor v Jecks (1993) 10 WAR 309

Case(s) also cited:

Aqua Vital Australia Ltd v Swan Television & Radio Broadcasters Pty Ltd (1995) Aust Torts R 81 - 346
Barclay v Cox [1968] VR 664
Emerson v Walker [1999] WASC 265
Gascoine v McGinty (1995) 14 WAR 542
Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410
Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332
Loughans v Odhams Press Ltd [1963] 1 QB 299
Shave v West Australian Newspapers Ltd [2000] WASC 172
Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1

STEYTLER J: This is an application, brought by the defendant in defamation proceedings, to strike out various paragraphs of the plaintiff's statement of claim.
The action relates to material which was broadcast by the defendant in the course of its "Four Corners" television programme on 12 February 2001. The programme included a story entitled "Adverse Outcomes", parts of which concerned the plaintiff, a prominent obstetrician and gynaecologist who has, since August 1996, been medical director of the obstetrics unit at King Edward Memorial Hospital. The story, so far as it concerned the plaintiff, centred around a number of incidents.
The first was the giving of birth by Mrs Debbie Davie to twins at King Edward Memorial Hospital on an unspecified date. The story recorded that, instead of suggesting a caesarean birth, Mrs Davie was "induced" at 8 am "for a natural delivery". The reporter, Jill Colgan, told viewers that the plaintiff, Dr Roberman, saw Mrs Davie only briefly after that. She said that, nearly 12 hours later, there was still no sign of the twins, and a heart monitor showed that one of them, Andrew, had a prolonged slowing of his heartbeat. Dr Roberman is said to have come in at about that time, but to have left again. Ms Colgan reported that, two hours later, "worried staff" telephoned Dr Roberman "but he made no arrangement to come in". At about 11 pm Dr Roberman was said to have been called again and finally to have come to the hospital. Ms Colgan said that, half an hour later, he delivered the twins, one by vacuum extraction and the other with forceps. Andrew was born with brain damage and was said to have speech problems, "occupational therapy problems", delayed development, cerebral palsy and "features of ADHD". Ms Colgan reported the Mrs Davie had taken "her case to a law firm well versed in legal action against King Edward".
There was then footage of a lawyer who said that there were about 15 cases outstanding "of which there are about four cerebral palsy cases, … a half dozen cases involving babies who have died whilst being delivered at King Edward and … a few other cases involving obstetric complications". Ms Colgan then said that the plaintiff was "cited" in six of the 15 cases, many of which bore "similar hallmarks". The lawyer is then shown as saying:
"If I was trying to say one thing which seems to be recurring, it would be the fact that there seems to be a delay in making a decisive decision about labour once difficulties are encountered.
That seems to be the problem - either not intervening to deliver the baby by caesarean or something else.
So that would be the common thread in the cases that I'm seeing."
Next, Ms Colgan mentioned that, just three months after Mrs Davie's case, Dr Roberman was "again accused of taking too long to attend a troubled birth" and that it was once again claimed that there was a breakdown in communications between staff and doctor. She reported that "the outcome" was a severely brain‑damaged infant and a multi‑million dollar lawsuit against the hospital.
The broadcast then dealt with an unidentified 20‑year‑old woman. Ms Colgan said of her that, in May 1999, she "was full‑term and undergoing what's called a trial of scar - attempting to deliver the baby naturally after a previous caesarean".
She went on to say:
"After a prolonged labour, it's claimed Dr Roberman left the decision about whether or not to have a caesarean up to the patient, without explaining the risks.
After 27 hours of labour, the previous scar split and the baby tore through the woman's uterus.
Despite an emergency caesarean, the baby suffered massive brain damage and died 3 weeks later.
That case is also in the hands of lawyers."
The next segment of the broadcast was a relatively long one relating to a Mrs Sadie Batten. Mrs Batten was told, after falling pregnant, that she would "need a caesarean, so as not to disturb the cervix further". This was because she had undergone surgery for cervical cancer. The reporter then recounted that, six months into an otherwise uneventful pregnancy, Mrs Batten went into labour. While driving to the hospital her husband, Mr Dean Batten, rang the police to report the emergency. He told a duty officer that his wife was in labour, that she was only 26 weeks' pregnant and that she had cancer of the cervix. He said that the duty officer told him that he would let King Edward Memorial Hospital know that he and his wife were on their way there.
Ms Colgan said that these events took place on the evening of 15 March. She added that, within days, "the visiting clinical review team was due in to examine the obstetrics unit". She said that there had been intense discussion in recent weeks about adverse outcomes, clinical practices and the lack of supervision of junior doctors and that it was a time when "you might expect the hospital to be on its toes".
Ms Colgan said that the factors affecting Mrs Batten all added up to a high‑risk birth. The baby was very premature, there were signs that he was in distress and a "very junior doctor" was on duty. Mrs Batten is shown saying that the junior registrar that dealt with her initially was "three months into his first year".
Ms Colgan then said that the junior registrar rang the consultant on call, the plaintiff, for advice around 7.30 pm. Mrs Batten, in turn, said that the two midwives who were on duty were asked by her what they were waiting for and that they replied by saying that they were waiting for someone more experienced to come in. Each of Mr and Mrs Batten said that the atmosphere was tense. They said that their baby son, Jack, still had a strong heartbeat but Ms Colgan added that the situation was deteriorating because his heartbeat had slowed and attempts to delay the birth had failed. She said that the experienced midwives were becoming frustrated that no doctor was intervening to deliver the baby.
Next, Mr Batten is shown saying that, from 7.30 to 8 pm, the junior registrar "didn't move very much at all" and that it "was as though he was waiting for somebody to turn up".
Ms Colgan then reported that, by 8.30 pm, it had become clear to the midwives, at least, that a decision had to be made and one of them urged the registrar to deliver the baby. She said that the junior registrar then rang a senior registrar to come in "only to have her misdiagnose the way the baby was lying in the womb and make a failed attempt at delivery".
Ms Colgan said that precious time was slipping away and Mrs Batten said that, by 9 pm, "things had gone too far really".
Ms Colgan then said:
"What they didn't know was the junior registrar had telephoned Dr Roberman over a period of two hours, not once or twice or three times, but four times, finally asking him on the fourth call explicitly to come in.
When Dr Roberman arrived, it was after 9.45 pm."
The segment then goes on to disclose that the baby died not long after his birth. It also shows footage of Mr Batten saying that he and Mrs Batten were told by one of the midwives that she did not think that what had happened on that night was "normal". The reporter, Ms Colgan, said that:
"Alarmed by the case, the hospital lawyer did what had never been done before - reported the death of a baby at King Edward to the State Coroner."
Mr Batten also said that nobody wanted to talk to him and Mrs Batten and they approached the Chief Executive Officer of the hospital. He said that, after he and Mrs Batten eventually got to meet the Chief Executive Officer of the hospital, he told them that their son should not have died and advised them to get a lawyer.
Ms Colgan then went on to say:
"At the coronial inquest into Jack's death, the series of mistakes that night became clearer.
An inexperienced registrar, Dr Michael Gannon, out of his depth.
A senior registrar, Dr Miriam Lee, arriving on the scene and causing confusion with her misdiagnosis of the baby's position.
…
Finally, retired expert obstetrician Dr Frederick Hind insisted Dr Roberman should've attended the hospital sooner, after the second phone call."
Immediately thereafter Mr Batten said, in the course of the broadcast:
"The on‑call consultant at the time just happened to be the head of the Obstetrics Department who lives three minutes away.
And given the information that he had a very, very inexperienced junior registrar dealing with a mother who's severely premature - 25 weeks, 26 weeks, meconium draining - … contractions severely going from three minutes - I would've taken the time to just drive down and make sure that he was okay.
I would've believed that’s [sic] duty of care.
I believe in medical circles, anybody with due diligence would have taken the duty of care to drive down to make sure this - his inexperienced junior registrar was okay and not drowning."
The broadcast material is said to have given rise to a number of imputations. Some of these have been proposed by way of an amendment to the statement of claim. The parties are content that, in dealing with the defendant's application, I should deal with the pleading in the form in which it is proposed to be amended rather than that in which it presently exists.
So far as is relevant for present purposes, par 6 of the statement of claim alleges that the publication of the broadcast gave rise to defamatory imputations to the effect that the plaintiff:
"(b)…
(ii)left the decision whether to deliver a baby naturally or by caesarean section to his pregnant patient without explaining to her the risk, due to her particular circumstances, associated with a natural delivery;
(iii)allowed his pregnant patient, during a long labour, to decide to proceed with a natural delivery without explaining to her the risk to her or her baby arising from her previous caesarean delivery;
…
(v)negligently failed to advise his patient to have a caesarean which caused his patient to persist with a natural delivery which resulted in her baby suffering massive brain damage and death;
…
(c)…
(i)chose not to attend upon a patient, Mrs Sadie Batten, when he knew she was facing a difficult labour and dangerously risky birth with inadequate medical care;
(iii)despite knowing of serious and risky complications in the birth, deliberately delayed in attending the delivery of Mrs Batten's baby such that an urgent caesarean section was required which resulted in serious or fatal injury to Mrs Batten's baby;
(vi)failed to provide adequate post‑natal care by refusing to speak to Mr and Mrs Batten after the death of their baby;
…
(viii)failed to adequately supervise the birth of Mrs Batten's baby which caused the death of her baby;
(ix)so conducted himself as to give rise to a reasonable suspicion that he is guilty of professional negligence in respect of his care and supervision of Mrs Batten.
The pleading of each of those imputations is challenged by the defendant.
As to imputation 6(b)(ii), the defendant contends that the words "due to her particular circumstances" are embarrassing and should be struck out. It also contends that, if the "circumstances" referred to are the risk to her or her baby arising from her previous caesarean delivery, then imputations (ii) and (iii) are repetitive of each other and one or other of them should be struck out.
It is well established that a pleaded imputation must express the precise act or condition asserted of or attributed to the plaintiff or with which the plaintiff is charged: Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 678 and Taylor v Jecks (1993) 10 WAR 309 at 319 - 320. Imputations which are repetitive will also be struck out. Imputations of that kind are necessarily embarrassing. A reasonable test of distinctness is that of whether the justification of each imputation would be substantially different: Lewis v Daily Telegraph Ltd [1964] AC 234 at 282.
In the course of argument, counsel for the plaintiff, Mr Bishop, said that the "particular circumstances" referred to in par 6(b)(ii) were the fact of the patient's previous caesarean delivery. However, he submitted, imputations (ii) and (iii) were not repetitive because, unlike imputation (ii), imputation (iii), refers to the fact that the patient was left to make the decision "during a long labour", that is to say, after she had already gone down the path of having a natural delivery. With due respect, I am unable to accept that there is any sufficient distinction to warrant the pleading of both imputations. The gravamen of what is said to be imputed to the plaintiff is that he left the decision to the patient in circumstances in which he should not have done so without explaining the risk arising from her previous caesarean delivery. Whether the decision was allowed to be made by the patient during the course of a long labour, or prior to that, is not a matter of particular significance. Moreover, there is nothing in the broadcast material to say that the patient was Dr Roberman's patient before she went into labour and the viewers were told by Ms Colgan that the decision was left to the patient "after a prolonged labour". In those circumstances, and having regard for the fact that the words "due to her particular circumstances" in imputation (ii) seem to me to be too vague, the appropriate result is that imputation (ii) should be struck out.
As to imputation (b)(v), the defendant contends that this imputation, which is proposed to be introduced by way of amendment, is incapable of arising from the words complained of.
In deciding a question of that kind, the issue is essentially that of whether a reasonable person, in the sense of an ordinary reasonable viewer of fair, average intelligence, who does not live in an ivory tower, who is not inhibited by strict rules of construction and who is not unusually suspicious or naïve or avid for scandal, would understand the matter complained of in the manner alleged. (See Smith v Littlemore (1996) 15 WAR 289 at 294 and 295; Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7 and Lewis v Daily Telegraph Ltd, above, at 258 - 259.) In considering what might be understood by such a person, it should be borne in mind that the ordinary and natural meaning of words may be either the literal meaning or an implied or an inferred or an indirect meaning, not requiring the support of extrinsic facts: Capital & Counties Bank v George Henty & Sons (1882) 7 App Cas 741, 745 and Jones v Skelton [1963] 1 WLR 1362 at 1370. However, it must not amount to a judgment or conclusion resulting from the viewer's own beliefs or prejudices: Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301.
It is also important to bear in mind that imputations will only be struck out, at this early stage of the proceedings, if they are untenable or manifestly groundless (Taylor v Jecks, above, at 319; Smith v Littlemore, above, at 294 - 5 and Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 446 - 7).
Applying these principles, it seems to me to be sufficiently arguable, at this stage, that imputation (b)(v) does arise. Counsel for the defendant contended that the only imputation which is capable of arising is one to the effect that the plaintiff should have advised the patient of the risks involved in having a natural birth, and not one to the effect that he should have advised her to give birth by caesarean section. However, I consider it to be arguable that the ordinary reasonable viewer would infer from the subject matter of the broadcast, including the alleged fact of Dr Roberman's failure to explain the risks, the alleged fact of the splitting of the patient's previous scar, with the consequence that the baby tore through her uterus, ultimately suffering from brain damage and then dying, and the statement that the case was in the hands of lawyers, that the plaintiff had negligently failed to advise the patient to have a caesarean birth, with the pleaded consequences.
I am consequently prepared to allow the pleading of par 6(b)(v) in its amended form.
Imputation 6(c)(i) is also said to be incapable of arising. The defendant contends that there is nothing in the broadcast material to suggest that the plaintiff knew either that Mrs Batten was facing a difficult labour or that she was facing a dangerously risky birth with inadequate medical care.
It seems, from the broadcast material, that the plaintiff first learned of the difficulties when telephoned by a junior registrar at around 7.50 pm on the evening of the birth. While it is not clear what he was then told, it is reasonable to infer, from the broadcast, that he was told of the fact of Mrs Batten's cancer and of the fact that the baby was significantly premature. It is also reasonable to infer, from the broadcast, that he would have understood that these factors gave rise to a dangerously risky birth as, in effect, the reporter, Ms Colgan, told viewers they did. Next, it appears from the broadcast material that, by the time the plaintiff arrived, he had been telephoned on four separate occasions by the junior registrar, albeit it was only during the fourth telephone call that he was explicitly asked to come in. It might consequently be inferred, from the broadcast material, that he knew that the patient was in the hands of an inexperienced registrar who lacked the confidence to deal with the patient on his own and that her medical care was consequently inadequate.
All of those things having been said, it is not correct to say that the broadcast material suggested that the plaintiff "chose not to attend" upon Mrs Batten. It made it plain that he did attend upon her. The real complaint, made in the course of the broadcast, is that he did not do so earlier. If that is the imputation which is contended for, then, in my opinion, this should be pleaded. Counsel for the plaintiff pointed to the fact that the pleaded imputation is to the effect that the plaintiff knew that Mrs Batten was "facing" a difficult labour and dangerously risky birth, and submitted that the use of that word sufficiently conveyed the notion that Dr Roberman chose, when first told of the problem, not to attend on Mrs Batten. However, I am unable to accept that this appears with sufficient clarity. If that is the intention, it would be a simple matter to express it more plainly. I would consequently strike out this imputation upon this ground only, with liberty to the plaintiff to replead. I should add that, notwithstanding submissions to the contrary, I was not persuaded that the pleading otherwise lacks the requisite precision.

As to imputation 6(c)(iii), this was said to be repetitive of imputation 6(c)(i). Because I have struck out imputation (i), this complaint falls away. I should say, in any event, that the imputations do seem to me to be sufficiently distinct. There is considerably more to imputation (c)(iii) than there is to imputation (c)(i), in that the consequences of the delay are pleaded in the second imputation. However, that imputation is also said to be so unclear as to be embarrassing, because the "serious and risky complications" therein referred to are not identified. It seems to me that they should be identified. The broadcast covers a range of events, occurring at different times, which might have been made known to the plaintiff and which might fall within the phrase "serious and risky complication in the birth". It should, in my opinion, be spelled out which of these events are said to have been known by Dr Roberman at the time at which he is said to have "deliberately delayed" in attending the delivery of the baby. I would consequently disallow par 6(c)(iii) in its present form, with liberty to replead.
Imputation 6(c)(vi) is also said to be incapable of arising. The plaintiff seeks to support it by reference to the statement, in the broadcast, that nobody wanted to talk to Mr and Mrs Batten. However, there is nothing in the broadcast which might even arguably suggest that the plaintiff failed to provide adequate post‑natal care by refusing to speak to Mr and Mrs Batten after the death of their baby, or even that he was responsible for providing any post‑natal care to Mrs Batten. I would consequently strike out this imputation.
Imputation 6(c)(viii) is complained of as being repetitive of imputation 6(c)(i). Because imputation (i) has been struck out, this complaint falls away. However, I should say, in any event, that I do not consider that it is repetitive. Imputation (i) deals with the plaintiff's failure to attend the patient in the circumstances identified. Imputation (viii) speaks of his failure adequately to supervise the birth of the baby, thereby causing its death.
However, counsel for the defendant also contended that the broadcast material is incapable of giving rise to the imputation that the lack of adequate supervision caused the death of the baby. He referred, in support of his submission, to part of the broadcast material in which, as I shall later explain, the reporter said that the Coroner found that the baby died of natural causes because, "faced with evidence that Jack was so premature and gave such signs of foetal distress", it followed that "a caesarean any earlier on … [Mrs Batten] might not have saved him anyway". Although, as I shall also mention below, the reporter added that, given "the litany of mistakes the Coroner found, his cautious verdict devastated Sadie and Dean Batten", it seems to me that an imputation that the plaintiff's lack of supervision did, in fact, cause the death of the baby is not arguably capable of arising. At best, it seems to me, the imputation which arises is that it might have done so. I should add that the lack of adequate supervision which is said to be imputed by the broadcast should, in my opinion, have more specifically been identified.
I would consequently strike out imputation 6(c)(viii), with liberty to replead.
Imputation 6(c)(ix) is said to be repetitious of imputation (i) and imputation (viii) and also to be incapable of arising from the broadcast material.
Had the imputation been one only to the effect that the plaintiff was negligent, then it would, in my opinion, have been merely a broad repetition of earlier imputations. However, counsel for the plaintiff submitted that the imputation is one of professional negligence, in the more technical sense of a breach of professional duty which is punishable by the Medical Board. Accepting that that is what is intended, it seems to me that there is nothing in that part of the broadcast pleaded in par 5(c) of the statement of claim (being the only part of the broadcast which is relied upon as giving rise to this imputation) which is capable of giving rise to the imputation. I would consequently strike it out. I should add, however, that the part of the broadcast which is pleaded in par 9 of the statement of claim (but not relied upon by the plaintiff for this imputation) includes statements from Mr and Mrs Batten to the effect that they had hoped that the matter "might have gone to the medical board" for "somebody to be made accountable". I would consequently give leave to amend without intending to express any view, one way or the other, as to whether or not any amendment should be made.
Paragraph 9 of the statement of claim is that in which the plaintiff sets out what was said and done in other parts of the broadcast concerning the plaintiff's involvement with a coronial inquiry and his subsequent conduct. In the course of this segment Ms Colgan reported that:
"For weeks Four Corners has asked Dr Roberman to discuss issues raised in this programme.
Just hours ago, he submitted a brief written response restating that he was not explicitly asked to attend Sadie Batten until the fourth phone call and he gave appropriate advice on the phone."
The segment also includes the following comments from Ms Colgan:
"Coroner Alistair Hope found Dr Brian Roberman needed to come to the hospital after the second phone call.
He criticised the confusion, poor communication, errors and delays, saying the doctors should have listened to the midwives.
But he was faced with evidence that Jack was so premature and gave such signs of foetal distress, a caesarean any earlier on Sadie might not have saved him anyway.
He found, therefore, that, essentially, it was death by natural causes.
Given the litany of mistakes the Coroner found, his cautious verdict devastated Sadie and Dean Batten."
In par 10 of the statement of claim the plaintiff pleads that this part of the broadcast gave rise, inter alia, to the following imputations:
"(b)… that the Plaintiff … does not have the courage to answer Four Corners' questions; and
(c)… the only reason the Plaintiff was found by the Coroner not to be responsible for the death of Jack Batten was that it was impossible to prove that the baby could have been saved."
Imputation 10(b) is objected to upon the grounds that it is incapable of arising from the words complained of. It seems to me that this objection is well made. I am unable to find anything in the broadcast which might arguably give rise to the imputation that the plaintiff did not have the courage to answer Four Corners' questions. While the reporter said that Dr Roberman had submitted only a brief written response in answer to Four Corners' repeated requests to him to discuss issues raised in the programme, there is nothing to suggest that this was so because of any lack of courage on his part. I would consequently strike out this imputation.
Imputation 10(c) is objected to upon the grounds that it is embarrassing because it fails to plead precisely the condition asserted of, or attributed to the plaintiff or with which he is charged. It seems to me that this objection has substance. If it is intended to plead that the imputation is one that the plaintiff was, in truth, responsible for the death of Jack Batten, or some other similar imputation, then, if an imputation of that kind is capable of arising, it should specifically be pleaded. The pleaded imputation, as it stands, does not disclose, with the requisite degree of precision, any meaning which is defamatory of the plaintiff (even in the sense, contended for by counsel for the plaintiff, of one causing him, without any imputation of fault on his part, to be shunned or avoided in his profession).
I would consequently strike out this paragraph also, with liberty to replead.

Conclusion

It follows that pars 6(b)(ii), 6(c)(i), (iii), (vi), (viii) and (ix) and 10(b) and (c) of the statement of claim should be struck out, or disallowed, as the case may be, with liberty to replead.