Judgment ID Number: [1999] TASSC 42

NICHOLAS ANDREW DOWNIE and RODNEY NORMAN WESTMORE v TASMANIAN EYE CLINICS PTY LTD and GORDON MICHAEL WISE

1 The plaintiffs sued the defendants for damages for defamation arising out of the alleged publication by them of a letter to some hundreds of medical practitioners throughout Tasmania. By par3 of the defence, the defamatory imputations, pleaded in the statement of claim, par3, were denied and it was pleaded that the publication is not capable of bearing those defamatory meanings.

2 The defendants filed an application seeking an order under the Rules of Court, O28, r2, that the point of law raised in par3 of the defence, namely the question of whether or not the publication is capable of bearing the alleged defamatory meanings, be set down for hearing and disposed of before the trial. A consequential order was also sought pursuant to O28, r3, that the action be dismissed. The application came before me on 29 March. Both counsel consented to the point of law being so determined and the point was then argued by counsel upon the basis that all of the facts alleged in the statement of claim are true.

3 It was initially submitted by counsel for the plaintiffs that the question of law should only be determined in favour of the defendants "in the clearest of cases". See Bennett v Davies Bros Limited B12/1992 at 5; Bowes v Fehlberg 53/1997 at 2. That principle applies to cases where an attack has been made on the pleading of an innuendo in the course of an application to strike out or to amend a statement of claim. In such cases debatable points of law are not determined. Instead, they are left to the trial judge to determine. However, the principle is not applicable to a case such as this, where the function of the judge is that of the trial judge.

4 The hearing of a point of law before trial, pursuant to an order made under O28, r2 is an unusual course. Points of law are ordinarily disposed of at the trial. The Defamation Act 1957, s5(4), provides that the question whether matter that is alleged to be defamatory is or is not capable of bearing a defamatory meaning, is a question of law, but it is usual for such a question of law to be determined at the trial after all evidence has been called. It is only in rare cases that the facts are so clearly and definitely stated in the pleadings that it can confidently be said that the court has all the necessary facts before it to decide the point, without hearing witnesses or hearing any more about the case. I presume that if the point is decided by me in favour of the plaintiffs, the trial judge will be bound to adopt my determination made on the pleadings, regardless of the evidence presented at the trial. If I decide the point in favour of the defendants, the action will terminate immediately, with judgment for the defendants, regardless of the evidence which might have been presented at the trial. They are the risks the parties have taken in consenting to the point of law being determined by me now. I note, without comment, the disapproval of the use of rules similar to O28, r2 for the purpose for which it is being used in this case, which was expressed by the Court of Appeal in Morris v Sanders Universal Products [1954] 1 All ER 47 at 51 and by the Court of Appeal in World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712 at 717, 718 and 722.

5 When a court considers the question of law whether a publication is capable of bearing the defamatory meanings which are alleged, "the test ... is whether under the circumstances in which the writing was published, reasonable men to whom the publication was made would be likely to understand it in a libellous sense". Capital and Counties Bank v George Henty & Sons (1882) 7 App Cas 741 at 745. The ordinary and natural meaning may include any implication or inference which a reasonable reader would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury to hold that reasonable persons would understand the words complained of in a defamatory sense. Jones v Skelton (1963) 63 SR(NSW) 644 at 650.

"I must reject any strained, or forced, or utterly unreasonable interpretation: Jones v Skelton (1963) 63 SR(NSW) 644 at 650. I must proceed upon the basis that the ordinary reasonable reader is a person of fair average intelligence: Slatyer v Daily Telegraph Newspaper Co Ltd [1908] HCA 22; (1908) 6 CLR 1 at 7; who is neither perverse: ibid; nor morbid or suspicious of mind: Keogh v Incorporated Dental Hospital of Ireland (1910) 2 Ir R 577 at 586; nor avid for scandal: Lewis v Daily Telegraph Ltd [1963] 1 QB 340 at 374."

Farquhar v Bottom [1980] 2 NSWLR 380 at 385, 386. The principles are conveniently summarised in that case and also in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165, 166.

6 The facts pleaded in the statement of claim, which are to be assumed to have been established for the purposes of the application, are as follows. In or about May 1998, the first defendant published, and the second defendant wrote and published, of and concerning the plaintiffs, a letter, a copy of which is annexed to the statement of claim. The letter was on the letterhead of Tasmanian Eye Clinics Pty Ltd and it appears from the names and qualifications of persons on the letterhead, that the company provides the services of six ophthalmologists, two visiting specialist consultant ophthalmologists and five orthoptists and that it operates from four addresses in Tasmania, at South Hobart, Glenorchy, Rosny Park and Launceston. The letter purported to be signed for and on behalf of the second defendant, in his capacity as a director of the first defendant, and the substance of the letter was as follows:

"You may have noticed the recent confusing barrage of publicity that is occurring both in the lay press and from some of our colleagues regarding treatment for short sightedness and other refractive anomalies with laser surgery.

Tasmanian Eye Clinics has been following the development of these new treatments in detail over the past three years.

Some of our partners have attended training sessions overseas in the techniques used and we have been actively engaged in referring to reputable mainland practitioners, patients that we thought had a high probability of being successfully treated for their myopia and astigmatism.

We now believe that these techniques have evolved to a standard where they are extremely successful and very safe when performed by experienced surgeons using the most up-to-date equipment.

As you probably know, the two main Excimer laser treatments are PRK (or photorefractive keratectomy) and Lasik (Laser in situ keratomileusis). PRK is basically the cutting of a suitably shaped 'lens' on to the front surface of the cornea and Lasik is the same under a lamella or partial thickness corneal flap. In general terms, the first is used for short-sightedness up to four units and the latter for higher degrees of short-sightedness. The reason for the distinction is the healing time that is required between the two modalities of treatment.

PRK takes longer to heal to a final visual result than does Lasik for the higher degrees of short sightedness.

I think patients consulting you need to know that the technique is not painless, is not necessarily simple and that grandiose and outlandish claims for the end result, are sometimes a little exaggerated. Having said these words of caution, it will still become a technique that has a very definite place on ophthalmology at present and its place in the future will increase quite rapidly.

At Tasmanian Eye Clinics, we have carefully studied the facilities and practitioners involved in both PRK and Lasik treatments. After assessing each patient carefully we recommend the use of one of two Melbourne-based clinics depending on which procedure needs to be performed. These recommendations are based on the Clinics that have a combination of first class up-to-date equipment and the most experienced people in these specialities.

I have taken the liberty of including a few of our latest leaflets which may be of use to some of your patients. If any express an interest, please feel free to ask for our full information kit which gives more details of PRK and Lasik treatments.

Because of conflicting information, which is currently being disseminated in the media both for and against the procedures, we intend to conduct doctors' seminars about PRK and Lasik. You will be notified in the near future of the seminar date.

In the meantime, for your patients who have sensible and realistic expectations, the techniques are good. Tasmanian Eye Clinics intend to maintain a highly ethical approach to the introduction of this technology to Tasmanians.

The technology is changing so quickly that we do not consider that a Tasmanian-based facility, because of our small population, is either justified or needed. We will continue to offer to our mutual patients, the best quality of service and result that can be obtained in the wider treatment context."

7 The letter does not specifically identify the plaintiffs. It refers to a number of categories of persons, they being "the lay press", "some of our colleagues", "some of our partners", "reputable mainland practitioners", "patients", "practitioners involved in both PRK and Lasik treatments" and "two Melbourne-based clinics". The plaintiffs claim that it was published of an concerning them. In par2 of the statement of claim, they gave the following particulars of identification:

"(a) The plaintiffs are and were at all material times the only ophthalmologists carrying out Excimer laser eye treatment in Tasmania;

(b) The plaintiffs carried out Excimer laser eye treatment at all material times at their practice, known as 'The Eye Hospital', at 262 Charles Street, Launceston which was the only such facility in Tasmania.

(c) In or about September 1997 the plaintiffs had written to all ophthalmologists practising in Tasmania to advise that they had recently purchased a laser for carrying out Excimer eye treatment, seeking referrals of patients for such treatment.

(d) At the material time, the plaintiffs had, by newspaper advertisements, published publicity regarding treatment for shortsightedness and other refractive anomalies with laser surgery.

(e) The particulars set out above at (a) to (d) inclusive were well known within the medical profession of Tasmania at the time of publication of the matter complained of herein, including those persons to whom the matter complained of was published."

8 By par2, it is also pleaded, as particulars of publication, that the letter was published to some hundreds of medical practitioners throughout Tasmania. I will assume, for the purpose of determining the question of law, that the reference in the letter to "some of our colleagues" was a reference which included the plaintiffs. The letter referred to publicity from "some of our colleagues" regarding treatment for short-sightedness and other refractive anomalies with laser surgery. I must assume from what is pleaded, that the plaintiffs, who prima facie were colleagues of the ophthalmologists who worked for the first defendant, had in or about September 1997 written to all ophthalmologists practising in Tasmania to advise that they had recently purchased a laser for carrying out Excimer eye treatment, seeking referrals of patients for such treatment and had, at a material time, by newspaper advertisements, published information regarding treatment for short-sightedness and other refractive anomalies with laser surgery. I cannot assume that the September 1997 missive contained any advice other than that which I have stated and I have no knowledge concerning the detail of the information published by the plaintiffs in the newspaper advertisements, other than that it concerned treatment for short-sightedness and other refractive anomalies with laser surgery. I will also assume that the reference to "the facilities and practitioners involved in both PRK and Lasik treatments" was a reference to a class of ophthalmologists, in Tasmania and outside Tasmania, and that the plaintiffs were members of that class. The number of ophthalmologists in that class is unknown. It could be considerable, I do not know.

9 By the Rules of Court, O21, r7(3) if a plaintiff alleges, in an action for defamation, that the words or matter complained of were used in a defamatory sense other than their ordinary meaning, the plaintiff must give particulars of the facts and matters on which the plaintiff relies in support of that sense. No such particulars are provided by the statement of claim in this case, and the defendants are therefore entitled to assume that the defamatory imputations which are pleaded are alleged to be contained in the ordinary and natural meaning of the words. Paragraph 3 pleads that the imputations, which were defamatory of the plaintiffs, were:

"(a) That they are of such inexperience in the provision of laser eye surgery that Tasmanian doctors should not refer their patients to them for treatment;

(b) That they use such obsolete equipment in the provision of laser eye surgery that Tasmanian doctors should not refer their patients to them for laser treatment;

(c) That they have made dishonest claims about the technique of laser eye surgery, such that Tasmanian doctors should not refer their patients to them for treatment;

(d) That they are not reputable practitioners of laser eye surgery."

10 Finally, the statement of claim, par3, includes the following "particulars of imputations":

"The imputations each arise from the matter complained of, taken as a whole, but particularly as follows:-

(a) arises from the words beginning 'Some of our partners ...' and ending '... the most up-to-date equipment'; and the words beginning 'At Tasmanian Eye Clinics ...' and ending '... in these specialities'.

(b) arises from the same material as imputation (a).

(c) arises from the words beginning 'I think patients ...' and ending '... will increase quite rapidly'.

(d) arises from the words 'we have been actively engaged in referring to reputable mainland practitioners patients that we thought had a high probability of being successfully treated'."

11 I will deal first with imputation (a). In essence, the letter recommended that patients considering laser surgery be referred to one of two Melbourne based clinics, depending on whether PRK or Lasik treatment was required. The recommendation was expressed as based on the fact that those two clinics had both first class up-to-date equipment and the most experienced people in those specialities. However, there is no suggestion in the letter that the plaintiffs, or any ophthalmologists in Australia, other than the first defendant's ophthalmologists, have inadequate facilities, experience or skill for the performance of the procedures.

12 An imputation that a person is lacking in some quality which is essential to his or her profession or trade is defamatory. To be defamatory a statement must contain, expressly or by implication, a statement of fact or expression of opinion which would lower the person in the estimation of a reasonable reader who has knowledge of such other facts, not contained in the statement, as the reader might reasonably be expected to possess. However, to extol by words the virtues of one and not to extol the virtues of another, cannot alone amount to the making of a defamatory statement concerning the other. No reflection on that other's personal character or professional or trading reputation could result, and that applies to the circumstances of this case. It might be, of course, that the publication of the letter to doctors throughout Tasmania might have resulted in more patients being referred to the two Melbourne based clinics and fewer patients being referred to the plaintiffs. But a statement does not give rise to a cause of action in defamation merely because it causes damage to the plaintiff. The statement must also be defamatory of the plaintiff, and in my opinion the letter did not state, nor could it be implied by a reasonable reader, that the plaintiffs were of such inexperience in the provision of laser eye surgery that Tasmanian eye doctors should not refer their patients to them for treatment. I conclude that it is not open to a jury to hold that reasonable persons would understand the words complained of in the sense alleged in imputation (a).

13 For similar reasons, I conclude that it is not open to a jury to hold that reasonable persons would understand the words complained of as giving rise to the imputation alleged in imputation (b). It is simply not open for any reasonable reader to conclude that the letter, expressly or by implication, suggested that the plaintiffs, or any other specialist in the field other than the two Melbourne based clinics, use obsolete equipment.

14 With regard to imputation (c), there is no suggestion in the letter that the plaintiffs had made dishonest claims about the technique of laser eye surgery. It would not be open to a jury to conclude that a reasonable person would understand the reference to "grandiose and outlandish claims for the end result are sometimes a little exaggerated" as being a reference to claims made by the plaintiffs. On the facts pleaded, a jury would have no choice but to accept that there is no evidence that the plaintiffs had made any "claims for the end result" and to conclude that a reasonable reader would not understand that the plaintiffs had made grandiose, outlandish or exaggerated claims. An imputation of dishonesty on the part of the plaintiffs cannot be found in the letter. A reasonable reader could not possibly understand that to be the case.

15 Finally, as to imputation (d). It would not be open to a jury to conclude that a reasonable reader would understand the words "we have been actively engaged in referring to reputable mainland practitioners, patients that we thought had a high probability of being successfully treated" as meaning that the plaintiffs are not reputable practitioners of laser eye surgery. There can be no doubt that every working day of the year hundreds of doctors throughout Australia refer patients to surgeons and most of the doctors who do so regard the particular surgeon as reputable. The converse, however, is not the case, that is to say it does not follow that the doctors regard other surgeons as not being reputable. A statement by one doctor, or a group of doctors, that they refer patients to a particular specialist could not possibly be regarded by a reasonable reader as defamatory of other specialists.

16 Accordingly, I determine that the contents of the letter published by the defendants are not capable of bearing the defamatory meanings alleged in the statement of claim. The action should be dismissed as a result. The contrary was not submitted.