Justification: s 25 of the Act
71Justification is pleaded as a defence to imputations (b), (c) and (d). It appears to be accepted that no defence of justification is available with respect to imputation (a) since the Babywedge was not, at the time of the Broadcast, subject to recall.
72It is common ground that Born Brands offered for sale and sold Babywedge and that Hayley and Sally caused it to do so. The issue to be determined is whether Babywedge is a potentially dangerous product that could harm or even kill babies.
73The defendants relied on the opinion of Professor Byard to establish this matter. Professor Byard is an expert with substantial experience in attending death scenes of infants who have died and investigating the causes of such deaths. He is the Marks Chair of Pathology in anatomy and pathology at the University of Adelaide Medical School. The plaintiffs accepted that Professor Byard was expert on SIDS and accidental infant childhood suffocation.
74Professor Byard identified the presence of the bolsters as a significant feature of Babywedge that put it in the class of sleeping devices to which the US warning was directed. He said that although the device that permitted a baby or infant's head to be elevated could relieve the symptoms of reflux and colic by using gravity to prevent partially digested sustenance rising to the oesophagus, it was dangerous to allow a child to sleep in the device because of the risk of suffocation posed by the bolsters.
75Professor Byard explained that babies and infants are particularly susceptible to suffocation in circumstances where there is pressure on their noses and mouths. He said:
"Light pressure over the mouth and nose of infants from a pillow or bolster in the tough can easily occlude the upper airway and leave no markings".
76He instanced a case of an infant who would stop breathing when held by his grandmother and pressed against her clothing after feeding. This susceptibility explains why, according to Professor Byard, it is desirable that babies and infants sleep on their backs in uncluttered cots rather than on their fronts where their breathing could be compromised by pressure from a mattress.
77Professor Byard opined that while the base of Babywedge was unobjectionable as a mattress, the bolsters were potentially dangerous when a baby or infant fell asleep in the device. He further explained the reasons for his view about the dangers posed by "troughs" in following exchange on the voir dire conducted by Mr Evatt which became evidence in the proceedings:
Q. But a trough means, does it not, an unbroken Ushape or Vshape? If there is a gap that wouldn't be a trough. If there is a gap between the bolsters in the Baby Wedge mattress that would not be a trough?
A. I probably created this problem, your Honour, by using the term "trough". What I mean is somewhere a baby can be trapped where there be an air accumulation, carbon dioxide accumulation, overheating, or pressure against the nose and mouth. And it doesn't take much pressure for some babies, for them to suffocate.
Q. There would be no chance of suffocation if the baby could breathe between the bottom of the bolster and the top of the mattress?
A. Well, depends. I'm not convinced that that is actually a very good air passage. Also, the baby could easily be up against the bolster and bring up stomach contents because these kids do have reflux and that would make it really quite nasty, even if the baby's nose was stuck into this gap I still thinks it seals off because it presses down on the outside.
78Professor Byard was asked in re-examination to explain what he meant by "nasty", to which he responded:
The reflux is just an additive factor. So if you have a baby who's into the bolster or into the trough and they reflux stomach contents up that tends to make the cloth damp which would make it less permeable so it's harder to breath. Also stomach contents are sometimes sticky so they can stick to cloth to the baby's face.
79Mr Evatt also put to Professor Byard that the design of Babywedge was such that the bolsters were intended to go under the arms of the baby or infant and that therefore the child's head would not be between the bolsters at all. Professor Byard responded:
One of the interesting things about babies, your Honour, I've seen videos at meetings that paediatricians have taken and they move around in their beds more than I move around during the day. They're incredibly, particularly when they're five or six months, they are very able to actually move from one end of the cot to another. They're like possums going down small holes.
80The plaintiffs sought to impugn Professor Byard's evidence with a view to defeating the defence of justification.
81First, the plaintiffs relied on their own evidence as to the safety of the product and the lengths to which they went to design and manufacture it. Mr Evatt, correctly in my view, accepted that neither Hayley nor Sally was expert in the qualities of the respective materials or the risk of Sudden Infant Death Syndrome (SIDS). Mr Evatt did not submit that either Hayley or Sally had relevant expertise for the purposes of s 79 of the Evidence Act 1995 to express opinion evidence. Neither had any medical or paediatric qualifications. For the reasons given in Born Brands Pty Limited v Nine Network Australia Pty Limited (No. 4) [2013] NSWSC 1649 I refused to allow Hayley or Sally's assertions of the falsity of the imputations to prove their falsity, as distinct from their belief in their falsity.
82Secondly, the plaintiffs submitted that although Professor Byard was expert in baby mats with fixed bolsters, he was not familiar with Babywedge until he had been provided with one for the purposes of this case. Furthermore he had not conducted any tests on the item, apart from trying to breathe through it himself in defendants' counsel's chambers before giving evidence. Mr Evatt relied on passages from his cross-examination of Professor Byard in which Professor Byard referred to the absence of tests on such a product and his suggestions that some might be performed to ascertain whether the design affected the risk.
83I do not consider this submission to provide any substantial basis for not accepting Professor Byard's evidence. The facility or otherwise of an adult's capacity to breathe through open foam can only be a guide to whether a baby or infant can do so. I accept that if an adult cannot breathe through open foam, or has difficulty so doing, then one can infer that an infant would not be able to breathe through such material or would have even greater difficulty than an adult. However, if an adult can breathe through open foam, then I would not infer that a baby or infant could do so.
84I accept Professor Byard's opinion that babies and infants are susceptible to suffocation when there is pressure against their noses or mouths. I also accept Professor Byard's opinion that fabrics and other materials that may be permeable when dry tend to become impermeable when wet. This is of particular significance for babies and infants who may be inclined to dribble or vomit or otherwise exude moisture through their mouths or noses and thereby moisten the fabric in the vicinity of these orifices, thereby rendering otherwise permeable fabric impermeable.
85Thirdly, the plaintiffs sought to distinguish Babywedge on four bases from these admittedly dangerous products: first, that the mat and bolsters are made of open cell foam; secondly, that the bolsters on Babywedge are not fixed; thirdly, that the Velcro that attaches the bolster to the mat is perpendicular to the bolster; and fourthly, that there is a space between the bolster and the mat, at least at points where it is not attached to the Velcro which means that the "trough" is not sealed. They submitted that Professor Byard's evidence did not cover these characteristics. They also contended that unless regard was had to the various so-called baby devices that were covered by the FDA warning, and the distinctions between them and the Babywedge, the conclusion could not be drawn that the Babywedge was dangerous for babies and, accordingly, I ought not find that the defence of justification was made out.
86In support of this submission, Mr Evatt emphasised the following passage in one of the publications relied upon by Professor Byard, a paper published on 23 November 2012 by the Centers for Disease Control and Prevention (CDCP):
"Some specific ISPs [infant sleep positioners] have been cleared by the FDA for the management of gastroesophageal reflux or plagiocephaly (asymmetry of the skull)."
87The footnote to this proposition contained a single reference. The publication said to authorise the proposition was the document issued by the FDA in September 2010 described as "Consumer Health Information" entitled "Infant Sleep Positioners Pose Suffocation Risk". The only passage in that document that refers to approval of such items is:
"Although in the past FDA has approved a number of this products for GERD [gastroesophageal reflux disease] of flat head syndrome, new information suggests the positioners pose a risk of suffocation.
As a result, FDA is requiring makers of FDA-cleared sleep positioners to submit data showing the products' benefits outweigh the risks. FDA is also requesting that these manufacturers stop marketing their devices while FDA reviews the data."
88When one reads the CDCP document together with the FDA document, one appreciates that the sentence in the CDCP document, while historically true, does not override the health concerns about infant sleep positioners, since the FDA clearance pre-dated the "new information" that is the subject of the FDA document and the US warning. The sentence in the CDCP document does not provide any warrant for not accepting Professor Byard's opinion, or indeed for reaching a conclusion that infant sleep positioners are other than potentially dangerous because of their common features identified by Professor Byard.
89Professor Byard explained the way in which he approached his task of giving an expert opinion as to the matters asked of him by the defendants' solicitors as follows:
". . . I was really trying to go back to first principles because there are so many different devices. The first principles are that when you have bolsters and you have troughs and you have soft surfaces and you have cloth over foam these are all potential problems that can cause accidents and deaths."
90Professor Byard eschewed the relevance of dissection of the differences between sleep positioners and reiterated what I accept to be the principle that underlies the reason such devices are dangerous in the following terms:
" . . Well as I said, we can argue point by point with different devices that differ in their structure but the principle is the same; you have a soft bolster with a trough and a cotton covering that could get wet."
91When Mr Evatt put the alleged "feature" (the detachable bolster with a space between it and the mat) to Professor Byard, he agreed that one could put one's finger through the gap.
92The following exchange is sufficient to demonstrate the limits of what Mr Evatt managed to extract from Professor Byard on the topic:
Q. At the end of that second paragraph, I take it you didn't make any tests on Baby Wedge as to the likelihood or unlikelihood of a trough which could lead to suffocation?
A. The reason I didn't is it was an observation, I could see the trough and I know that troughs are dangerous.
Q. Yes, but surely an attached trough, sorry an attached bolster causing a trough would not be the same as an unattached bolster?
A. As I said I think we can't say that because when I look at the attachment, if a baby is in the trough and pushes this to the side because their face is there, it actually seals off on the other side, so I think that would need to be looked at.
Q. Need to be looked at, how do you mean?
A. I think if you were going to make an assertion that there is no that there is an air space under it, you will have to test it.
Q. Who would test it?
A. Consumer Affairs, I think, Australian Standards, people like that. Possibly Kidsafe, an organisation could recommend people.
Q. But that's not in your field?
A. No.
93I accept the defendants' submission that all but the first so-called distinguishing feature relied upon by Mr Evatt were, in substance, forensic inventions generated by the plaintiffs' need to discredit Professor Byard and counter his opinions, notwithstanding the lack of expert evidence to support their assertions. Both Hayley and Sally gave evidence by way of statements which were supplemented by oral evidence. There was no reference in their evidence to the alleged significance of the space between the bolster and the mat in between the Velcro, as providing a further opportunity for a baby or infant to breathe. Nor was there any expert evidence that this was possible in any event.
94In the statement which was to cover her evidence in chief, all that Hayley said relevantly, of the bolsters:
"The hug me bars on the Babywedge are detachable . . . "
95There was no mention in Hayley's statement in chief of the gaps between the Velcro which permitted a finger to be inserted. Had this matter been a relevant design feature, as distinct from a forensic ploy, one might have expected it to be mentioned, particularly as other distinctions between the Babywedge and other products are specifically addressed, including in the following paragraph:
"Unlike the Babywedge, sleep positioners often contain harnesses, excess covering and head pillows. The Nap Nanny, for example, has harness rings which can become detached and cause choking."
96Any reference to the space between Velcro fasteners is conspicuous by its absence in Hayley's statement in reply where she gives evidence as to the following matters, which I allowed as relevant only to her belief:
"An important feature of Babywedge is that all components are made of special material through which even a very young baby can breathe. If a baby's mouth or nose lies against the base of bolsters then the baby can still breathe through the material."
"Even if the baby was lying face down the baby can still breathe through the mouth and/or nose through the base or even the bolster."
"In any event the bolsters and the mattress are made of material which the baby can breathe through no matter what position it is in. Even if the baby's mouth, face and nose was lying on the mattress the baby can still breathe through the material."
97Further, I am not disposed to accept Hayley's protestations with respect to her concern about the risk of suffocation or her evidence that purchasers were advised not to leave a child out of sight or unattended in a Babywedge. In particular I do not accept Hayley's evidence that, at Expos she attended to promote the product, she demonstrated at least fifty times a day that she could breathe through the Babywedge. This evidence is substantially at odds with what appears from the advertising material to be the principal selling point of Babywedge: that it alleviates the symptoms of reflux and colic so that the baby or infant can sleep, thereby permitting the carer either to sleep or to have some respite. The promotional material contemplates that Babywedge will be used by babies and infants with breathing difficulties.
98Further, the plaintiffs submitted that the effect of the TGA certificate was that the Babywedge was safe and that the certificate was sufficient not only to undermine Professor Byard's opinion but also to defeat the defence of justification for the purposes of defamation and to prove the falsity of the statements for the purpose of the injurious falsehood claim. As I understood Mr Evatt's submission, he contended that although Babywedge had been approved for the treatment of reflux, the TGA must be taken to have realised that babies would be likely to sleep on it and therefore it follows from the fact that the TGA did not issue a prohibition on its being used as a sleeping device that it is a safe sleeping device.
99The defendant contended, in my view correctly, that the certificate did not refer to sleeping and that it could not be taken that the TGA had approved of the device as a sleeping positioner. I regard Mr Evatt's submission to the contrary as, at best, a non sequitur.
100In my view, the TGA certificate does not take the determination of the issues in the case beyond the evidence otherwise adduced. Professor Byard accepted that the Babywedge was a useful device to provide relief for reflux and colic since it elevated the baby's head. He considered that Babywedge was not unsafe as long as the baby was not allowed to fall asleep while in the device. The TGA certificate does not indicate, expressly or by implication, to the contrary.
101There was a further basis on which the plaintiffs' contended the Babywedge was not dangerous, which is allied to the relevance of the TGA certificate and the proposition that the plaintiffs were acutely concerned about the risk of suffocation. The further basis was that the plaintiffs contended that Babywedge was not in fact either a "sleep positioner" or a "sleeping aid". The plaintiffs expressly conceded in these proceedings that putting babies on a mat with fixed bolsters can lead to the risk of suffocation and therefore, presumably, that mats with fixed bolsters are potentially dangerous products that could harm or even kill babies. However they submitted that, because they advised parents never to leave children unattended in Babywedge and because it was not promoted as a sleeping device, it was not dangerous.
102The principal difficulty with this submission is that it is at odds with the evidence in the statements of the plaintiffs and also with their promotional material. There was extensive cross-examination of Hayley on this topic, which was effective to impugn her credibility. I have addressed her credibility and that of Sally separately at the conclusion of these reasons.
103I am satisfied, for the reasons given by Professor Byard, that Babywedge is relevantly indistinguishable from the sleeping devices the subject of the US warning. On the basis of his opinion I do not accept that any of the so-called points of distinction on which Mr Evatt relied were material.
104There is an additional matter to be addressed that relates to imputation (c). The plaintiffs are, subject to the requirements of procedural fairness, not bound by the precise imputations pleaded. The tribunal of fact may find for the plaintiff on a nuance or variation of the imputation, or an imputation not substantially different, or one of lesser seriousness: Chakravarti v Advertiser Newspapers Limited [1998] HCA 37; 193 CLR 519 (Chakravarti) at [22]-[24] per Brennan CJ and McHugh, [51]-[60] per Gaudron and Gummow JJ and [139] per Kirby J. The same principle applies to defendants in that a defendant is entitled to justify a nuance or variation of the plaintiff's defamatory meaning, or one less serious than the plaintiff's meaning, subject to the requirements of fairness.
105The defendants submitted that, they are entitled to justify imputation (c) although the Babywedge itself is not one of the devices that has been linked to 12 deaths in the United States, on the basis that it is a device of the kind or kinds of devices that have been linked to such deaths. The defendants argued that there was no difference in substance between those two statements since the pejorative nature of the sting was substantially the same.
106In the alternative, the defendants contended that imputation (c) was in terms true since the "link" referred to in (c) was satisfied by the substantial similarity between the Babywedge and the devices implicated in the deaths of the 12 babies and infants.
107I accept the defendants' submission that there is no material difference between imputation (c) as pleaded and an imputation that Babywedge is a device of the kind linked to such deaths. On this basis I find imputation (c) to be true.
108I am satisfied that, had the imputations alleged been carried, and had they been defamatory, the defendants have justified (b), (c) and (d) by proving each of them to be true.