O'Neill v Fairfax Media Publications Pty Ltd

O'Neill v Fairfax Media Publications Pty Ltd - [2019] NSWSC 655 - NSWSC 2018 case summary — Zoe

[4]

Judgment

HER HONOUR: These are proceedings for defamation arising out of articles published in The Sydney Morning Herald (both in print and online) in February 2017. The first defendant is the proprietor of the newspaper. The articles were written by the well-known journalist and author, Mr Peter FitzSimons, who is the second defendant.
The articles concerned the events of a boxing match held in Adelaide between Mr Anthony Mundine and Mr Danny Green. The plaintiff, Dr John O'Neill, was the ringside doctor for the contest. In the first minute of the first round, Mr Mundine struck Mr Green in the head with what was later ruled a foul blow. The referee called Dr O'Neill up to the apron to examine Mr Green. Dr O'Neill excluded injury or concussion and the fight continued. Mr FitzSimons' articles made a strident claim that the contest should have been stopped for the safety of Mr Green.
Dr O'Neill claims that the articles were defamatory of him, conveying the following imputations: 1. the plaintiff, a doctor, incompetently allowed boxer Danny Green to continue fighting in a boxing match despite the fact that Mr Green suffered bleeding on the brain; 2. the plaintiff, a doctor, negligently endangered Danny Green's life by allowing him to continue fighting in a boxing match when Mr Green obviously had brain damage; and 3. the plaintiff was such a reckless ringside doctor that he failed to stop a fight despite the fact that one of the boxers obviously had concussion.
The defendants deny that the matters complained of conveyed those imputations. In the event that the imputations are found to have been conveyed, the defendants rely on the defences of justification under s 25 of the Defamation Act 2005 (NSW) and honest opinion under s 31 of the Act. As to the justification defence, it should be noted at the outset that the defendants adduced no evidence that Mr Green in fact suffered bleeding on the brain or "brain damage" (as that term might commonly be understood) as a result of Mr Mundine's foul blow. On 16 March 2017 the newspaper wrote to Dr O'Neill's solicitor acknowledging that the reference to bleeding on the brain was incorrect.
I have concluded that the articles were defamatory of Dr O'Neill as contended by him and that the defences relied upon must fail. I consider that Dr O'Neill is entitled to an award of damages in the sum of $385,000. My reasons for those conclusions are as follows.

[5]

Circumstances in which the claim was brought

Much of the background evidence was uncontroversial and may be accepted as fact without further discussion, except where I have indicated otherwise. Dr O'Neill completed his studies in medicine at the University of New South Wales in 1983. In 1985, he began working as a ringside doctor at boxing contests. He has worked as the official ringside doctor for several high profile contests, both domestically and internationally.
Notwithstanding his involvement in boxing, Dr O'Neill's professional focus has extended into pre and postoperative care in the field of neurosurgery. Since 2005 he has worked as an assistant surgeon with a number of neurosurgeons including Dr Charles Teo, Dr Marc Coughlan and Dr Neil Cochrane.
In October 2016, it was announced that the Green versus Mundine fight would take place in Adelaide on 3 February 2017. Mr Manolikos, the promoter for the event and Mr Green's manager, asked Dr O'Neill to be the official ringside doctor. Dr O'Neill agreed on condition he would be the only ringside doctor for the main fight and that he would not work on the "undercard" fights. In his evidence Dr O'Neill said he sought that arrangement so that he could focus solely on Green and Mundine.
In January 2017, Mr Manolikos spoke to Mr Hadley, the official Australian National Boxing Federation (ANBF) supervisor for the fight. The ANBF confirmed that Dr O'Neill was to be the sole official ringside doctor for the main fight.
In the meantime, Mr Mundine's agent, Mr Khoder Nasser, had appointed Dr Lou Lewis as a ringside doctor for the event. In evidence Mr Manolikos said he raised this with Mr Nasser and they agreed that Dr O'Neill was to be the only ringside doctor for the main fight. As it transpired, that was not Dr Lewis's understanding. It will be necessary to return to that issue.
On 2 February 2017, Dr O'Neill flew into Adelaide and visited the fight venue. He familiarised himself with the venue in case of an emergency. He rang Royal Adelaide Hospital to confirm they had a 24/7 trauma unit which included a neurosurgical team on-call should they be needed to perform urgent surgery.
On 3 February 2017, at approximately 11.30am, Dr O'Neill attended the Mayfair Hotel in Adelaide for the reading of the rules. In attendance were Messrs Hadley, Manolikos and Garza (the referee for the contest), the judges and representatives for each boxer. Dr Lewis did not attend that meeting. The parties signed a form at the end of the meeting confirming the respective capacities in which each was attending the event. Significantly, only Dr O'Neill was listed as the official ringside doctor. However, on a separate form prepared by Mr Hadley (the ANBF running sheet), Dr Lewis was listed as one of two ringside doctors for the contest. Mr Hadley gave evidence that this was a courtesy to Dr Lewis and that it is common to have two doctors at ringside but there is only one official fight doctor.
At approximately 6.15pm, Dr O'Neill arrived at Adelaide Oval for the event. He attended ringside to collect medical forms to conduct pre-fight assessments of the participants. To his surprise, he found that the forms had already been filled out by Dr Lewis. Dr O'Neill left the matter there. He gave evidence that the reason he did not instead seek to perform his own pre-fight assessment was the perceived risk that an amendment to the form may be seen as tampering with official fight documentation. He also said that, in any event, completing the pre-fight assessment was a relatively insignificant part of his role as official ringside doctor.
After seeing Dr Lewis's name on the pre-fight assessment, however, Dr O'Neill sought out Mr Hadley to confirm that he was the sole doctor appointed for the main fight. Mr Hadley confirmed that he was.
Shortly before the Green versus Mundine fight began, Dr O'Neill noticed Dr Lewis at ringside. Dr O'Neill reminded him that he (Dr O'Neill) was the official and sole ringside doctor appointed for the fight. According to Dr O'Neill, Dr Lewis did not agree and sought to take the issue up with Mr Hadley.
Mr Hadley gave evidence that he saw Dr Lewis at ringside and said "Lou, you're not the official fight doctor. So I don't want to see you up on the ring apron."
Mr Hadley said that Dr Lewis started arguing with him, but that he moved away. He said Dr Lewis tried to pull on his trousers but he (Mr Hadley) "just got in the ring". In his evidence, he said "I mean, I can't have an argument on national television with a doctor".
Dr Lewis did not give evidence at the trial. I accept Dr O'Neill's and Mr Hadley's account of those events.

[6]

The foul blow

Multiple segments of footage from different angles showing the blow and its impact on Mr Green were tendered at the hearing and played many times. I have watched them many times again in the course of preparing this judgment. The footage shows that the two men were held in a clinch. To my untrained eye, it appears that it is Mr Green who has a hold on Mr Mundine; the footage shows him pulling Mr Mundine's head and shoulders down with an arm around the back of the neck. The referee is heard to say "let him go, let him go, let him go", whereupon Mr Green releases his hold while facing away from Mr Mundine. At that point, Mr Mundine draws himself up and throws a punch from behind, swinging his arm under Mr Green's underarm and striking him hard to the left side of his face. Footage taken from an aerial view shows that the force of the blow pushed Mr Green's head sideways and pushed him off balance. He is seen stumbling backwards towards the ropes on the other side of the ring, assisted by the referee. Slow motion footage shows him with a stunned facial expression as he utters an unsurprising expletive. He slumps against the ropes then drops briefly towards the floor, squatting on one leg with the other leg forward before getting to his knees and then standing up unassisted. As he stands up, the referee (who looks to be about half the size of Mr Green) places one hand on either side of Mr Green's chest but he does not appear to exert any force so as to assist Mr Green in recovering his vertical stance. Mr Green then walks unassisted to the adjacent side of the ring and stops with his forearms resting lightly over the ropes.
The commentator for the match was Mr Ted Cofie. Mr Cofie is a former professional boxer who held both domestic and international titles. He had seen Mr Green fight before, approximately 22 times. He gave evidence that, following the blow, he thought Mr Green did not look very well; his eyes seemed glassy, his physiology and demeanour had changed and he was breathing heavily (Mr Cofie thought abnormally so for the early stages of a fight). His initial thought was that Mr Green was concussed. He maintained that opinion in his evidence in the proceedings.
Dr O'Neill's vision of the blow was obscured. He was called onto the ring apron by the referee to assess Mr Green for injury. Dr Lewis followed about five seconds later and stood beside Dr O'Neill. He did not have direct contact with Mr Green.
Dr O'Neill stood very close to Mr Green. He placed his hands on the back of Mr Green's head and asked a set of questions, looking directly into his face. In his evidence Dr O'Neill outlined the process of his assessment as follows: "my fingers extended around the back of his neck and my thumbs were positioned under his eyes on the front of his face in that position there... l was checking for any swelling, any neck tenderness, any abnormal cervical spine anatomy... throughout the ensuing examination, I used my hands to feel for any unsteadiness or any loss of balance by Mr Green... Both of my thumbs were positioned underneath the eye sockets, what we call the orbital bones, of each of Danny's eyes, and l ran my thumbs underneath both of the eye bones underneath, again to check for depressed fractures, any abnormal anatomy, swelling, bruising, lacerations... I had a close look at Danny Green's face, which I knew very well, and he was quite sweaty. I observed no swelling, no bruising, no lacerations, no bleeding on his forehead, on either side of his face, there was no fluid coming out of his eyes, his nose, his mouth, and certainly no fluid or any drainage of any fluid out of his ears. His face looked symmetrical to me, and normal... The next thing I did was have a really close look in his eyes, and I noticed that he displayed, in either eye, no abnormal eye movements, no wandering eyes, or funny eye movements. It's a condition we call nystagmus, and his eyes were perfectly normal, left and right, and he engaged with locked eyes; he looked at me, I looked at him, and at one stage I did observe him blink. I remember that... his eye muscles appeared normal... Then I had an even closer look at his pupils, and I observed in both his right pupil and his left pupil, his pupils were equal, they were concentric, they were circular, and during the course of the examination, they reacted normally to light."
Dr O'Neill gave evidence that he then asked Mr Green to tell him what his (Dr O'Neill's) name was. Mr Green did not respond immediately. Dr O'Neill thought he may not have heard him. There was considerable background noise at that point. Dr O'Neill then held up two fingers and said "Son, you're running out of time. Two questions. What's my name, where are you?" Dr O'Neill's evidence was that, again, Mr Green did not respond immediately. However, a close analysis of the footage shows that, when Dr O'Neill held his two fingers up, the referee immediately tapped Dr O'Neill on the arm and began to turn away, before Mr Green would have had an opportunity to answer. Dr O'Neill gave evidence that the referee said "I think I'm going to have to stop this fight", whereupon Mr Green quickly answered the two questions. Dr O'Neill was still facing Mr Green directly at that point. The footage shows that Dr Lewis was turning away from Mr Green towards the referee and shaking his head, presumably to indicate his agreement that the fight should not continue. Dr O'Neill can then be seen turning to the referee to call him back.
The words said by Mr Green are difficult to hear due to the very intense background noise. My hearing of the words is that, as the referee turned away, Mr Green said, "No, no, no! Doc O'Neill, Adelaide". There was a dispute between the parties as to whether he said (either then or at some other point) "Dr Lou O'Neill" (which would indicate confusion) or "Dr John O'Neill" (which would be correct). The suggestion appears to have come from something Mr Green said after the fight. I am not satisfied that Mr Green said "Dr Lou O'Neill" (or indeed "Dr John Lewis", as he was also reported to have said) at any point. As indicated, the words I made out on the material in evidence are "Doc O'Neill".
Dr O'Neill concluded at that point that Mr Green was not suffering from an injury and was not concussed. He told the referee that Mr Green was okay to continue in the fight. The referee asked Mr Green if he was okay. At that point Mr Green can be seen resuming an active boxer's stance and can be heard to say: "I'm good Doc, I'm fuckin' good".
In total Dr O'Neill took approximately 50 seconds to form the view that Mr Green was not concussed, 25 seconds of which was the actual assessment face to face. The time between the blow, Dr O'Neill's assessment and the recommencement of the fight was approximately 65 seconds.
As already noted, while Dr O'Neill was carrying out his assessment of Mr Green, Dr Lewis was standing beside him. Dr O'Neill gave evidence that, after he finished his assessment and indicated that Mr Green was okay to continue, Dr Lewis said that he wanted the fight to be stopped and that he asked "are you stopping the fight?" He said the question appeared to be directed at both the referee and Dr O'Neill. Dr O'Neill said he answered that he was the doctor and that Mr Green was okay to continue. Dr O'Neill gave evidence that, at that stage, Dr Lewis said "okay" or "fine; I'm withdrawing from this contest. Whatever happens is on your head."
The footage reveals that this conversation was very short and I am not persuaded that it occurred in the sequence recalled by Dr O'Neill at the trial. At the point where it is clear that the referee proposes to allow the fight to continue, Dr Lewis does not appear, on the footage, to be as aggravated as suggested in the aftermath of these events. At an earlier point, as the referee turns away apparently meaning to stop the fight, Dr Lewis certainly appears to be questioning whether the fight should continue. However, shortly before the referee resumes the contest, Dr Lewis can be seen nodding his head at Dr O'Neill. He does not give the appearance of protest at that point. He and Dr O'Neill can then be seen walking back to their seats without further discussion. However, as Dr Lewis did not give evidence, it is not possible or fair to draw any firm conclusion on that issue.

[7]

The following rounds and subsequent events

The fight continued and Mr Green went on to win on points in 10 rounds. The result was controversial; some observers commented that Mundine had the better of Green on points. Dr O'Neill said he continued to watch Mr Green closely throughout the fight and saw no signs of concussion. He had no concerns about Mr Green from watching him throughout the contest; this was not challenged in cross-examination. Immediately following the fight whilst in the ring, Mr Green made a speech in which he spoke clearly and articulately. Dr O'Neill observed him to move freely and without faltering in his stride. Dr O'Neill said he conducted a post-fight medical assessment on Mr Green with no issues of concern; however he did not record that assessment in a document. He gave evidence that this was because he did not have notepaper on hand at the time and that his overriding concern for the safety and welfare of Mr Green was satisfied. He considered the paperwork to be a minor part of his role at that stage. It was in fact Dr Lewis who completed the post-fight medical forms. He listed no issues of concern for either boxer.
Mr Manolikos was with Mr Green from immediately after the fight until 4am. He did not notice anything abnormal about his speech, gait or behaviour.
Following the contest Dr O'Neill directed Mr Green to have an MRI scan which was carried out on 9 February 2017. There was no significant difference between the results of that scan and MRI imaging undertaken on 27 February 2015. The results included "susceptibility weighted index" (SWI) sequencing which came back as normal.
Two experts who gave evidence at the hearing explained the significance of the SWI sequencing result. Dr Cochrane defined that test as follows in his expert report (emphasis added): "Susceptibility-weighted index (SWI) is a sequence of imaging performed on an MRI scan designed to show mineral products, and specifically blood (iron) due to the magnetic susceptibility of metallic ions during the MRI scan In simple terms, this is a highly sensitive sequence to determine if blood products are extra overstated within the brain, that is evidence of brain haemorrhage ... It is my experience, and certainly the intention of the SWI sequence on MRI scanning, that this sequence is highly sensitive for detecting blood products (bleeding) of the brain."
Dr Coughlan explained the test as follows (emphasis added): "Susceptibility Weighted Index refers to an MRI sequence which is particularly sensitive to compounds which have paramagnetic properties including deoxy haemoglobin ferratin haemosiderin which are breakdown products of blood. Thus the most common use of Susceptibility Weighted Imaging is for the identification of small amounts of haemorrhage or products of haemorrhage particularly within the brain."
The evidence of the experts established that SWI sequencing is a sensitive test for haemorrhage in the brain, with the caveat that there is a small rate of error.

[8]

The role of Dr Lou Lewis

In the aftermath of the fight, there was extensive discussion in the media of the controversy over the foul blow thrown by Mr Mundine, whether the fight should have been stopped and who should have been declared the winner. Dr Lewis evidently contacted media to convey his view, amongst others, that the fight should have been stopped after the blow as he thought Mr Green was concussed.
Dr O'Neill's defamation action initially included Dr Lewis as a defendant. That part of the claim was resolved after Dr Lewis provided the following apology to Dr O'Neill on 8 September 2017: "In February 2017 I made a number of comments about Dr John O'Neill in relation to the fight between Danny Green and Anthony Mundine on 3 February 2017 at Adelaide Oval. Specifically, I published material claiming that I was an officially appointed ringside doctor to the fight and attacked Dr O'Neill's actions and decisions with respect to his medical assessment of Danny Green and decision to permit Danny Green to continue the fight. I acknowledge that Dr O'Neill was the sole appointed ringside doctor for the fight and that I did not assess Danny Green and therefore could not determine that he was concussed. I apologise for defaming Dr O'Neill. I had no right or basis to make those remarks. My comments were unjustified and unsubstantiated. The defamatory publications by me were motivated by anger and lapse in judgment and I deeply regret the publications and the hurt I have caused to Dr O'Neill."
As already noted, there was a dispute between the parties as to Dr Lewis's role in the contest. He was not selected as an official ringside doctor yet he completed the official pre- and post-fight medical reports. Mr Hadley did not invite him to attend the all-important reading of the rules on the morning of the contest, yet he listed him as a doctor for the contest on the ANBF running sheet. In his letter of apology, Dr Lewis conceded that Dr O'Neill was the sole appointed ring doctor.
Dr O'Neill submitted that Dr Lewis had no role in the fight and was simply an "intermeddler". The defendants submitted, to the contrary, that he was one of the two ringside doctors whose attendance at and for the fight was arranged and was known about, and regarded as appropriate, by all relevant participants.
As already noted, however, Dr Lewis was not called by the defendants to give evidence. I draw the inference that any evidence he would have given would not have assisted the defendants' case. [1]
On the strength of Mr Hadley's evidence and the terms of Dr Lewis's apology to Dr O'Neill, I am satisfied that he was not the official ringside doctor for the main fight and that he had no official role in the fight beyond being part of Mr Mundine's entourage. However, it is not clear whether that matters. Whether as an intermeddler or otherwise, he was an experienced ringside doctor who became involved in the events the subject of Mr FitzSimons' article. The significance of those conclusions is considered below in my discussion of the defence of honest opinion.

[9]

The matters complained of

Dr O'Neill sues on two separate publications. The first was published in print in The Sydney Morning Herald and on the SMH tablet app on 10 February 2017. The second was made available for publication on the SMH website on the same date. The internet article was almost identical to the printed article but appeared under a different headline and contained an additional paragraph which was not suggested to be significant for present purposes.
The printed article was published under the headline "Stop the fight! Please, stop the fight!" It was part of a regular column, "The Fitz Files", which appears under a photograph of Mr FitzSimons sporting the familiar red scarf.
The article opened with a discussion of the controversy as to who won the contest. Relevantly, the first article said: "Which brings us to the Mundine/Green fight in Adelaide last Saturday night, nominally won by Green, though lots of judges deem Mundine the rightful winner. I don't know, and I don't care. As many times stated, l had no desire to see two good men, let alone men over 40, try to batter the other's brain stem to the point that the other would sink into unconsciousness and suffer brain damage while the crowd roars for more... ... There was, in demonstrable fact, such obvious brain damage on the night, that a qualified judge wanted it stopped. When Mundine hit Green with a foul blow in the first round, Green went down like a shot duck and the two ring side doctors crowded into the ring to confer with the referee. One of them, Dr Lou Lewis, who had been doing this for four decades, had no doubts. Green was concussed. And he was right, as confirmed by Green afterwards. 'I didn't know if l was Arthur or Martha,' he said. Well, Lewis knew exactly who he was. He was a boxer with a bleeding brain, and it was dangerous for him to continue. His job was to pull the fight. And so, ignoring Green - who kept telling the ref, 'Let's fight, let's fight, I'm good to go' - Lewis stepped up and said to the ref, 'the fight should be stopped, I don't want it to go on...' The ref didn't react. 'Are you stopping the fight?' Lewis asked, incredulous. The referee, with the backing of the other doctor, said 'No...' and indicated the fight could go on. 'I'm having nothing more to do with this fight,' Lewis said, and walked out, doing the right thing. At this point, Green's head was in Zone Red. 'Another serious blow when he's already concussed, it is no exaggeration to say, could have been fatal,' Dr Michael Gannon of the Australian Medical Association, was quoted later by the ABC. And so there you have it. A bloke with a bleeding brain was allowed to continue, risking his life, even though that one experienced ring-side doctor wanted it called off!"
The internet version of the article appeared under the heading "Comment" and the further headline: "Danny Green suffered bleeding on the brain against Anthony Mundine, and yet they let the fight go on."
On 16 March 2017, in response to a concerns notice sent by Dr O'Neill's solicitors, the defendants accepted that the reference to bleeding on the brain was incorrect. On about 22 March 2017, the internet article was altered to remove those references.

[11]

Defamatory meaning

The principles to be applied in determining defamatory meaning are well known and need not be rehearsed here. The test is whether, on the balance of probabilities, the meaning contended for by the plaintiff was conveyed to the ordinary reasonable reader, a person "of fair average intelligence who is neither perverse, morbid, suspicious of mind nor avid for scandal", who "does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs" and who does not engage in over-elaborate analysis in search for hidden meanings, nor adopt a strained or forced interpretation. [2]
A helpful summary of the principles to be applied in undertaking that assessment may be found in the judgment of White J in Hockey v Fairfax Media Publications Pty Limited. [3]
It may be noted that each imputation includes an element concerning Mr Green's physical condition (that he had "suffered bleeding on the brain"; that he "obviously had brain damage" and that he "obviously had concussion"). Each of those conditions is asserted in terms in the matters complained of. In that circumstance, unsurprisingly, the defendants did not seek to contend that the physical component of each imputation was not conveyed. The critical contest concerned what (if anything) it said about Dr O'Neill that the fight had been allowed to continue.
The fact that the physical element of each imputation was stated in terms in the article does not obviate the need to consider the meaning of those terms to the ordinary reasonable reader. Any contended ambiguity in that respect ought to have been brought forward for resolution before the determination of any other issue in the proceedings. [4]
In closing submissions, the defendants contended (for the purpose of the two substantive defences) that the natural and ordinary meaning of the term "concussion" is not same as the specialised medical meaning given to the term by the expert witnesses called in the case. They submitted that the term would be understood by the ordinary reasonable reader to mean: "a state of shock or temporary incapacity, involving a rattling or shaking or jarring of the brain, caused by a blow - or, as Dr Cochrane put it, a state of being 'stunned' by a blow."
As was acknowledged during the hearing, the term "stunned" is a layman's term. Its precise meaning in this context is unclear. To the extent that the submission suggested a meaning of the term "concussion" that is broader than the specialised medical sense in which it was addressed in the evidence of the experts, Dr O'Neill objected to it. He submitted that the case had up to that point been conducted on the common understanding that the term "concussion" was being used in the medical sense and that it was not now open to the defendants to put their case on a broader basis.
I am not persuaded that the natural and ordinary meaning of the term "concussion" is different from or broader than the sense in which that term is used by experts. Plainly, the ordinary reader would know less than a brain surgeon about concussion and how to diagnose it, but that is not to say that he or she would use the word in a different sense. The defendants' argument would hold that, every time a person is stunned by a blow to the head, it would be said in the ordinary meaning of the word that the person had concussion. It came close to being a contention of res ipsa loquitur; that concussion means a stunning blow to the head. I do not accept that proposition. In my view the ordinary use of the term comprehends that concussion is a matter for diagnosis: "you've hit your head, you'd better see a doctor, you might have concussion."
Even if that is wrong, and there is a broader sense in which the term concussion is ordinarily used, in my view the defendants are confined to the meaning contended for by Dr O'Neill as a result of the way in which the case has been conducted. Dr O'Neill noted the following particulars in the amended defence: "15. The blow caused Green to suffer concussion, which was apparent from Green's immediate loss of motor coordination/balance, vacant expression and heavy breathing. …. 16. As a result of suffering concussion, there was a risk that, if Green fought on, he would lack the ability to properly defend himself and was exposed to further or more violent blows from Mundine, which could have caused further or more serious injury or death. … 24. It would have been apparent to the plaintiff, and was apparent to Dr Lewis, by the fact that Green had incorrectly identified Dr Lewis, that Green was confused and/or suffering cognitive impairment as a result of the blow, and that such confusion and/or impairment was a further symptom that he was suffering concussion. … 31. After the Contest, Green made a number of public statements indicating, in substance, that he had suffered concussion after the first round blow, but that he had played down or dismissed the effects of the concussion at the time so as to remain in the Contest. … 33. While Green did not suffer bleeding on the brain from the first round blow (in the sense of suffering a brain haemorrhage), the imputation is nevertheless true in substance or not materially different from the truth in circumstances where Green suffered a concussion, and consequently bruising of the brain, and the Contest should have been stopped as a result."
I accept, as submitted on behalf of Dr O'Neill, that there is no attempt in the pleadings to justify the contention that Mr Green "obviously had concussion" by reference to the bare fact that he was "stunned" by the Mundine blow, nor can such a case be inferred. The term used in the imputation suggests the diagnosis of a medical state (Mr Green had concussion), not simply a physical event (his head was shaken by the blow). In my view, the terms of the defence indicate that the imputation is not ambiguous and that the defendants understood it in the sense in which it was intended in the plaintiff's case, namely, that Mr Green was in a state that warranted a diagnosis of concussion in the medical sense. That is the basis on which I have determined the issues in the case.
In my view, as submitted by Dr O'Neill, the imputations are conveyed by the plain words of the article. As to imputation (a), "that the plaintiff, a doctor, incompetently allowed boxer Danny Green to continue fighting in a boxing match despite the fact that Mr Green suffered bleeding on the brain", Dr O'Neill relied on the following aspects of the article in particular: 1. the headline of the first article "Stop the fight! Please stop the fight!" 2. the headline of the second article "Danny Green suffered bleeding on the brain against Anthony Mundine and yet they let the fight go on" 3. "the two ring-side doctors crowded into the ring to confer with the referee" 4. "the referee, with the backing of the other doctor..." 5. "He was a boxer with a bleeding brain, and it was dangerous for him to continue" 6. "At this point Green's head was in Zone Red" 7. "There was, in demonstrable fact, such obvious brain damage on the night, that a qualified judge wanted it stopped." 8. "... Green went down like a shot duck..." 9. "One of them, Dr Lou Lewis, who had been doing this for four decades, had no doubts. Green was concussed. And he was right, as confirmed by Green afterwards." 10. "Well Lewis knew exactly who he was. He was a boxer with a bleeding brain, and it was dangerous from him to continue. His job was to pull the fight" 11. "Lewis stepped up and said to the ref, 'the fight should be stopped, I don't want it to go on..." 12. "Are you stopping the fight? Lewis asked, incredulous." 13. "The referee, with the backing of the other doctor, said 'No'..." 14. "'I'm having nothing more to do with this fight', Lewis said and walked out, doing the right thing." 15. "Another serious blow when he's already concussed, it is no exaggeration to say, could have been fatal." 16. "And so there you have it. A bloke with a bleeding brain was allowed to continue, risking his life, despite the fact that one experienced ring-side doctor wanted it called off!"
As to imputation (b), "that the plaintiff, a doctor, negligently endangered Danny Green's life by allowing him to continue fighting in a boxing match when Mr Green obviously had brain damage", in addition to the matters set out above, Dr O'Neill emphasised the following parts of the article: 1. "...I had no desire to see two good men...sink into unconsciousness and suffer brain damage..." 2. "...all those tempted to sign on to having anything to do with the third brain-damage-fest..." 3. "There was, in demonstrable fact, such obvious brain damage on the night... "
As to imputation (c), "that the plaintiff was such a reckless ringside doctor that he failed to stop a fight despite the fact that one of the boxers obviously had concussion", the following aspects of the article were emphasised: 1. "One of them, Dr Lou Lewis who has been doing this for four decades, had no doubts. Green was concussed. And he was right, as confirmed by Green afterwards. 'I didn't know if I was Arthur or Martha', he said." 2. "Another serious blow when he's already concussed, it is no exaggeration to say, could have been fatal."
In resisting the proposition that the imputations were conveyed, the defendants noted a number of matters of context.
First, they submitted that the tone and character of Mr FitzSimons's column, which is of long standing, is such that the ordinary reasonable reader would not have regarded or expected the column to be "a source of news in the sense of reporting facts". It was noted that the column "is written in Mr FitzSimons' distinctive voice and style, the characteristic elements of which include writing in the first person, a jocular and conversational tone, references to Australian slang and vernacular, and the use of colourful and argumentative language."
It is not clear to me that I can properly have regard to other writings of Mr FitzSimons in order to determine his "distinctive voice and style" so as to inform the meaning of the matters complained of. I do not mean to say that I reject that proposition out of hand. It could conceivably be appropriate to approach the determination of meaning on the basis that the ordinary reasonable reader could be influenced by the known style of a particular personality (such as a comedian), provided it was established to be notorious. However, to have regard to other writings of the same person is unorthodox. The usual approach, while acknowledging the importance of context, is to confine attention to the words sued on rather than other words published by the same person.
In any event, consideration of Mr FitzSimons' "distinctive voice and style" does not point to the conclusion that the imputations were not conveyed; on the contrary. Mr FitzSimons is a powerful wordsmith. The force of his language derives from the very devices to which attention was drawn in the submissions. The point was perhaps more appropriately directed to the defence of honest opinion than to the question of defamatory meaning.
Secondly, the defendants submitted, perhaps inconsistently, that although written in a "colourful and attention-grabbing style", the articles could not fairly be described as "sensational". The point of the submission was to meet the authorities that acknowledge that a more sensational article is likely to be read with less accuracy and analytical care. [5]
For my part, I would have thought that "colourful and attention-grabbing" is a passable description of the meaning of the term "sensational", which is not necessarily derogatory. Whether the articles are properly described as colourful or sensational, the important consideration in my view is that they were powerful and likely to excite a strong emotional response. I do not think that is an argument for resisting the meanings contended for by the plaintiff.
The third matter of context relied upon by the defendants was that the articles barely referred to Dr O'Neill whereas other participants (apart from the referee) were named and discussed. I do not think that derogates from the power of the criticism of Dr O'Neill and the referee. If anything, the careful omission of their names reinforces the inference that they were the object of the author's (and Dr Lewis's) criticism. I do not accept that Dr O'Neill was a peripheral figure in the articles. The articles clearly convey that he participated in the decision that the fight should continue.
Turning to the content of the articles themselves, the defendants put a number of submissions as to why the plaintiff's imputations were not conveyed.
First, they noted that the imputations assume as a premise that Dr O'Neill was the person who failed to stop the fight, whereas the article makes plain that it was the referee who had that authority, not the ringside doctor. The defendants appeared to rely in this context on the fact that, "although perhaps not known to the ordinary reasonable reader", their contention finds support in the rules of boxing. It is not appropriate to have regard to that extraneous material.
I do not accept that the reader would understand, from the terms of the article, that the power to stop the fight ultimately rested with the referee. The article refers to the fact that the other (so-called) ringside doctor, Dr Lewis, knew that "his job was to pull the fight". In my view, the article squarely pins responsibility for the continuation of the fight on the combined decision-making of the referee and the unnamed doctor, who is portrayed as having overruled an outraged Dr Lewis.
Secondly, the defendants submitted that the reader: "might well have considered that that criticism was directed not at any particular person (including, least of all, the plaintiff), but rather the collection of individuals and interests that broadly make up the 'boxing community', which promoted and facilitated the fight and others like it."
It was noted that this is "consistent with" Mr FitzSimons' evidence as to the target he had in mind. The intention of the author is of course irrelevant in determining defamatory meaning. In any event, I do not accept the submission. As I have indicated, in my view the language is clear. The article points to the referee and the unnamed ringside doctor as those who should have stopped the fight and who put the fighter at risk in failing to do so.
Thirdly, the defendants noted that none of the words of the imputations, "incompetent", "negligent" or "reckless", or any word of comparable meaning, appears anywhere in the column, let alone in relation to Dr O'Neill. That of course is not uncommonly the position. The task of the interpreter is to consider the language of the article as a whole and to draw any appropriate inferences as to what it says of the people attributed with failing to stop the fight.
The article is replete with references to the dangers of the fight continuing and strident criticism of those who allowed that to occur. That is to be inferred from at least the following excerpts: "There was, in demonstrable fact, such obvious brain damage on the night, that a qualified judge wanted it stopped... He was a boxer with a bleeding brain, and it was dangerous for him to continue. His job was to pull the fight"... "Another serious blow when he's already concussed, it is no exaggeration to say, could have been fatal".
I am satisfied that the ordinary reasonable reader would readily infer that, assuming Mr Green was concussed, had suffered bleeding on the brain or had brain damage, the ringside doctor (Dr O'Neill) would have been incompetent, negligent and reckless to allow the contest to continue.
For those reasons, I am satisfied that the imputations specified by Dr O'Neill were conveyed. As already indicated, in my view the tone and language of the articles, while being colourful and attention-grabbing, is also assertive and powerful. The statements that give rise to the imputations are made in absolute terms. The reader would understand from the language of the articles that Mr Green was in fact concussed; that he in fact had a bleeding brain and that he had suffered brain damage. Indeed it would in my view be a contorted meaning to draw some different or lesser meaning from expressions such as "Danny Green was concussed"; "there was in demonstrable fact such obvious brain damage"; and "he was a boxer with a bleeding brain, and it was dangerous for him to continue".
The defendants accepted that those imputations, if conveyed, were defamatory. I am satisfied that each imputation was conveyed and was defamatory of Dr O'Neill.

[13]

Expression of opinion or statement of fact?

The first task is to determine whether the matter was an expression of opinion of Mr FitzSimons rather than a statement of fact. The Defamation Act does not guide that task and accordingly it is necessary to turn to the general law. [6]
I have previously held that, although the defence in s 31(1)(a) is directed to "the matter", the question whether it is conveyed as opinion or fact must be considered through the lens of the defamatory meanings found. That is the approach I took in O'Brien and again in Feldman v Polaris Media Pty Ltd [2018] NSWSC 1035. I remain of that view.
In O'Brien, I explained my approach at [45]-[46] as follows (footnotes omitted): "Both the defence of fair comment at common law and the defence of honest opinion under s 31 of the Defamation Act are directed to the matter complained of (rather than to the imputations specified by the plaintiff, as in the case of the defences under ss 25 and 26 of the Defamation Act). However, as explained by the High Court in Channel Seven Adelaide Ltd v Manock, the meaning pleaded by the plaintiff is relevant to the defence, not least because it is the meaning found by the court that is to be scrutinised for its fairness. On that basis I accept that, as occurred in Ahmed, a question to be posed for the tribunal of fact is whether the ordinary reasonable viewer would have understood the meaning found to have been conveyed as comment as opposed to fact. However, that is not to say that the form of the imputation is determinative. The care to be taken in that respect was emphasised in Ahmed at [44], where the Court said: 'The risk in treating the imputation as the matter which must be identified as an expression of opinion or fact is that the form of the imputation may not accurately reflect the language of the defamatory publication. That is significant, bearing in mind the contextual nature of the inquiry as to whether a statement is opinion.'"
Although the task focusses on the meaning found, the context in which that meaning was conveyed must also be considered. In O'Brien, I said at [50]: "As explained in Ahmed in the passage cited above, the form of the imputation must not be permitted to hijack that task. One aspect of that consideration is to recognise that an opinion and its factual premise can logically be combined within the one statement. In proceedings for defamation, an imputation specified in a pleading will often combine a defamatory attribution and a factual assertion on which it is based. A defence of comment would not necessarily fail by reason of the inclusion of a factual component in the imputation. The critical question is whether the defamatory sense of the matter complained of was conveyed as an expression of opinion rather than an assertion of fact."
The decision in O'Brien was upheld on appeal: O'Brien v Australian Broadcasting Corporation (2017) 97 NSWLR 1; [2017] NSWCA 338 at [169]-[170] per McColl JA, Macfarlan and Leeming JJA agreeing at [210] and [227]. However, the Court was not required to consider the correctness of the approach set out above. For completeness, I should note that there has also been an appeal against my decision in Feldman. That appeal has been heard but not yet determined. However, the principles stated above were not contested at first instance in that matter and I do not understand the appeal to involve a challenge to their correctness. The parties in the present matter did not dispute the correctness of that approach.
In Goldsbrough v John Fairfax & Sons Ltd, [7] Jordan CJ explained the distinction between statements of fact and comment as follows: "It must be indicated with reasonable clearness by the words themselves, taking them in the context and the circumstances in which they were published, that they purport to be comment and not statements of fact; because statements of fact, however fair, are not protected by this defence. In other words, it must appear that they are opinions stated by the writer or speaker about facts, which are at the same time presented to, or are in fact present to, the minds of the readers or listeners, as things distinct from the opinions, so that it can be seen whether the opinions are such that they can fairly be formed upon the facts."
It is helpful to consider two further cases discussing the application of those principles. In O'Shaughnessy v Mirror Newspapers [8] , a case concerned with the common law defence of fair comment, the defendant had criticised the plaintiff's production of Shakespeare's Othello. The trial judge had taken the issue of fact or comment away from the jury and directed the jury that the article did not contain any defamatory statements of fact. The High Court held that his Honour had erred: "It appears to us that the passages we have quoted could fairly have been regarded by the jury as going beyond criticism of the production and attributing a dishonourable motive to the plaintiff as a statement of fact. This is one of those cases where the critic, in making her evaluation that the production was a disaster - which, of course, she was entitled to do - did not plainly confine herself to commenting upon facts truly stated; she wrote what could, we think, have been regarded as amounting to a defamatory statement of fact, viz. that the producer dishonestly suppressed the roles of other players to highlight his own role. It is not that the writer merely failed to preface what she had to say about the production with some formula such as "it seemed to me"; it is rather that the jury could have found that an imputation of dishonesty was levelled against the plaintiff as the writer's explanation of what she asserted to be a waste of talent. If what was written had been no more than comment it only had to be fair, but, if it were fact, it had to be correct to defeat the plaintiff's claim." [9]
More recently, in Channel Seven Adelaide v Manock, [10] Gleeson CJ said: "[4] In Pervan v North Queensland Newspaper Co Ltd, McHugh J described as 'the conventional case of fair comment' one where the basis of the comment appears in the publication and the reader (or viewer, or listener) is able to judge whether the facts justify the comments. He said that was very different from what he called 'the Kemsley situation'. It will be necessary to return to consider exactly what such a situation is, but, in one respect, this description of the conventional case may be unduly narrow. The defence is concerned with comment based on facts. The truth of those facts will affect the viability of the defence. The distinction between a comment (such as an expression of an opinion, or inference, or evaluation, or judgment) and the factual basis of the comment, blurred though it may be in many communications, affects the application of the defence in a number of ways. So long as a reader (or viewer, or listener) is able to identify a communication as a comment rather than a statement of fact, and is able sufficiently to identify the facts upon which the comment is based, then such a person is aware that all that he or she has read, viewed or heard is someone else's opinion (or inference, or evaluation, or judgment). The relationship between the two conditions mentioned in the previous sentence is that a statement is more likely to be recognisable as a statement of opinion if the facts on which it is based are identified or identifiable.
Those passages reveal the fundamental importance, if a statement is to be understood as an expression of opinion, of specifying the intended factual premises on which the opinion is based and articulating the opinion as the author's own conclusion based on those factual premises.

[14]

Context, manner and tone

The defendants relied on a number of matters of context, manner and tone to support the contention that the article was an expression of opinion.
First, they submitted that it would be permissible, in determining whether the defamation was conveyed as opinion, to have regard to other articles published by Mr FitzSimons (particularly his weekly column "The Fitz Files") as part of the relevant surrounding circumstances. They highlighted a number of aspects of the column which they contended were of particular significance (the same matters were also relied upon in respect of the issue of defamatory meaning considered above).
It was contended that the column does not report news in the sense of drawing the attention of readers to facts or matters previously unknown and that it would not be regarded by the ordinary reasonable reader of the column as a news article or as a source of news in that sense. It does not follow that the column does not include the repetition of asserted facts.
It was further contended that the column regularly contains a breakout subsection, titled "What They Said" or "They Said", in which Mr FitzSimons presents a selection of around 10 to 20 quotes from athletes, coaches or sporting administrators, such quotes having been reported in the Australian or international media during the preceding week (see, for example, Exhibit 2 tabs 45, 46, 50). In his evidence in the proceedings, Mr FitzSimons said "the nature of [The Fitz Files] column is to use things that have happened in the public domain in that week" (Tcpt, 31 May 2018, p 381 (29)-(32)).
The defendants submitted that the reader would accordingly understand the column to be one in which Mr FitzSimons provides his views and reaction to what has already been reported in the press. It was submitted that, unless indicated otherwise, the reader would not assume Mr FitzSimons had spoken personally to anyone quoted in the column or, as a matter of common sense, that he could have, given the number of quotes typically featured and the diversity and celebrity of their provenance. So much may be accepted, but it does not follow that Mr FitzSimons is immune from the liability that ordinarily attaches to the repetition of a defamatory statement. An opinion based on the repetition of unchecked facts carries the same liability as the bare repetition of the unchecked fact; the defence of opinion does not hold otherwise.
Secondly, the defendants relied on the fact that, as already noted, the internet version of the article appeared under the banner of "comment". The defendants also relied on the colourful, forthright and argumentative language of the article. It may be accepted the article included strident language and some expressions of comment or opinion. The whole tenor of the article is a passionate and (frankly) persuasive argument as to the dangers of boxing. However, the critical question is whether the defamatory imputations complained of by Dr O'Neill were conveyed as opinion or whether they were, rather, conveyed as the factual premises for that opinion.
The defendants submitted that there was such widespread controversy about the fight that the reader would understand the articles to add another opinion to the debate. Again, so much may be accepted. The critical task, however, is to discern what was conveyed as opinion and what as fact. The principal difficulty is that the assertions concerning Mr Green's condition were not conveyed in the language of opinion. I also do not accept that the reader would understand Mr FitzSimons to be simply agreeing with the opinions of others. The article explicitly states propositions couched as fact.
Separately, the defendants sought to rely on the fact Mr FitzSimons had written extensively in his weekly column since 2001 on the dangers of concussion and the fact that he had been associated with pushing for reform in contact sport would lead the reader to conclude that the articles were expressions of his opinion. The defendants also sought to rely, for the same purpose, on evidence given by Mr FitzSimons during the trial as to his "very personal and genuine preoccupation with the dangers of suffering concussion". I have no difficulty in accepting the evidence, and indeed its characterisation. Mr FitzSimons is an important voice for the safety of athletes in this context. However, it is doubtful whether it is appropriate to have regard to that extraneous material.
The defendants sought to support this approach by reference to the decision of the Court of Appeal in Petritsis v Hellenic Herald. [11] After citing the passage from Goldsbrough set out above, the Court said: "In determining the question of construction, the jury are entitled to take into account all the circumstances in which the publication was made, including the manner of speaking, the context, the tone of voice, the relationship between the material relied upon and the alleged comment and the surrounding circumstances."
Dr O'Neill submitted that the historical material in Mr FitzSimons' column did not fall within the scope of "surrounding circumstances" discussed in that passage in Petritsis and could not properly inform my assessment of whether the matter was an expression of opinion or fact. It was submitted that Petritsis is not authority for the proposition that the reader can take into account years of prior articles written by an author to determine whether or not he is expressing an opinion or stating a fact. Counsel for Dr O'Neill noted in that context that the defendants had not pleaded a case that the matters complained of invoked Mr FitzSimons' previous writings on concussion as proper material for comment. It was further noted that none of the articles now relied upon was identified in Mr FitzSimons' answer to interrogatories (cf question 3(c)).
I am inclined to accept the submission put by Dr O'Neill on this issue. However, even if that is wrong, it does not alter the conclusion I have reached.
In my view, the defamatory sense of the article as captured in Dr O'Neill's imputations was clearly conveyed as fact rather than as an expression of opinion. Indeed, in my respectful opinion, the contrary view is barely arguable. The article included the statement that "Danny Green suffered bleeding on the brain against Anthony Mundine..."; that he was "a boxer with a bleeding brain..."; that "there was, in demonstrable fact, such obvious brain damage on the night..."; and that "one of [the ringside doctors], Dr Lou Lewis... had no doubts, Green was concussed"; adding "and he was right, as confirmed by Green afterwards."
In my view, those assertions would clearly be understood as statements of fact, and alarming fact at that, forming the premises for Mr FitzSimons' strident opinion.
The defendants made a further submission which raises an interesting philosophical question. It was submitted that a statement that a person is concussed can only ever be expressed as an opinion because it is not susceptible of empirical proof. The same could probably be said of virtually any medical diagnosis. Indeed, on that analysis, many supposed facts may be classified as opinions in the sense that they are inferences or conclusions drawn from observed facts. However, I do not think that is the sense in which the term "opinion" is to be understood for the purposes of the defence. It is well recognised that a publication may be defamatory because it conveys a defamatory imputation by inference. The defence of honest opinion draws a different distinction. The purpose of the defence is to protect the expression of personal beliefs, views or judgments where their factual basis is made available for scrutiny by the reader so as to allow the reader to form his or her own view. Here, it was the asserted factual basis for the opinion expressed in the article that was defamatory.
For those reasons, I am satisfied that the imputations were conveyed as fact, not opinion, and it follows that the defence must fail. However, in case that conclusion is wrong, it is appropriate to consider the other elements of the defence.

[16]

Proper material

The third element of the defence is that the opinion was based on proper material. That involves two discrete requirements. First, the material on which the opinion is based must be sufficiently identified; both as to the fact that it is the material on which the opinion is based and as to the content of that material (which may be established by proving that it is notorious).
The test for identifying the material on which the opinion is based is to determine what the ordinary reasonable reader would have understood from the matter complained of to have been intended by the author to be considered as the basis of his or her comment: Bickel v John Fairfax & Sons Ltd [12] per Hunt J.
As to whether the content of that material is sufficiently identified, the requirement is that the material be stated or referred to in the matter complained of, or be notorious. So in Manock (a case concerned with the common law defence of fair comment), the High Court described a rule "that material cannot be fair comment unless 'the facts on which it is based are stated or indicated with sufficient clarity to make it clear that it is comment on those facts'". The relevant passage continues (at [45]): "That is, the alleged comment must be sufficiently linked to facts being commented on by reason of those facts being stated in the publication containing the comment, or being referred to in it, or being notorious."
The point is also put nicely in Hawke v Tamworth Newspaper Co Ltd, [13] also a case involving the common law defence, where Hunt J outlined the test as follows: "The material upon which the comment is based must be stated expressly or impliedly in the matter complained of or it must constitute a matter of contemporary history or general notoriety and thus, in one way or another, made known to the readers to enable them to judge for themselves whether they agree with the published opinion based upon that material."
The second requirement is to determine whether the material is proper material. In the present case, it is contended that the material on which the opinions were based was proper material for comment because it was substantially true. [14] However, there is an issue to be determined as to what is required to be proved true. The defendants' case asserted that the proper material included the fact that others had expressed certain opinions, so that all that would need to be proved true was that those opinions had been expressed. Accordingly, it is necessary to determine whether Mr FitzSimons' opinion was expressed on the basis of the fact that others had expressed those opinions or upon the basis that those other opinions were true. [15]
In the amended defence, the defendants identified the following as the proper material (amendments to the original defence are shown in revision mode): "(a) There was a fight between Mundine and Green in Adelaide on Saturday 3 February 2017; (b) Mundine hit Green in the first round; (c) Green fell down and in the publicly expressed opinions of Dr Lou Lewis, Dr Michael Gannon, Dr Peter Lewis and Green himself was concussed after receiving the first round blow; (d) the two ringside doctors crowded [in]to the ring and conferred with the referee; (e) Dr Lewis has been acting as a ringside doctor for four decades; (f) Dr Lewis determined that Green was concussed; (g) Green said words to the following effect to the referee: "Let's fight, let's fight, I'm good to go"; (h) it was dangerous for Green to continue fighting after suffering if he had suffered concussion; (i) another serious blow, when if Green was already concussed, could have been fatal; (j) Dr Lewis's job A ringside doctor's role, in those circumstances, was to advise the referee to end the fight; (k) Dr Lewis said words to the following effect to the referee: "The fight should be stopped, I don't want it to go on" and asked "are you stopping the fight?" (l) the referee, backed by the other ringside doctor, responded to Dr Lewis's question by saying "No" and indicating that the fight could go on; (m) Dr Lewis said words to the following effect: "I'm having nothing more to do with this fight" and walked away; (n) after the Contest, Green said words to the following effect "I didn't know if I was Arthur or Martha", confirming that he was concussed at the time and other words by which he acknowledged that he was concussed by the first round blow; and (o) frequent head trauma and concussion caused by boxing can have tragic consequences for boxers and their families; (p) Mr Michael Gannon of the Australian Medical Association said words to the following effect about Green "Another serious blow when he's already concussed, it is no exaggeration to say, could have been fatal", (q) Dr Peter Lewis of the Australasian Ringside Medicine Association backed the view that the fight should have ended early; and (r) Dr Peter Lewis said words to the following effect about the first round blow "When you've suffered a blow like that you're concussed so you're not really able to make rational decisions in your own self- interest".
The particulars omit an obvious and important matter. The article said: "Well, Lewis knew exactly who he was. He was a boxer with a bleeding brain, and it was dangerous for him to continue. His job was to pull the fight."
Applying the test in Bickel, I am satisfied that the ordinary reasonable reader would have understood the assertion that Mr Green had bleeding on the brain, or perhaps that Dr Lewis knew Mr Green had bleeding on the brain, to be intended by Mr FitzSimons to be considered as part of the basis of his opinion. There was no attempt to prove either proposition to be true. In my view, that is fatal to the proof of this element.
In any event, even disregarding that difficulty, the defence faces a further insurmountable problem because critical components of the proper material are either misstated in the particulars or not proved to be substantially true. Perhaps the most obvious problem is the fact that the particulars acknowledge that a component of the basis for the opinion was that Dr Lewis determined that Mr Green was concussed. Not only was that not proved (Dr Lewis did not give evidence) but he acknowledged in his apology that he "did not assess Danny Green and therefore could not determine that he was concussed".
The defendants' submissions dealt only briefly with this issue. A considerable amount of time was spent at the hearing and in submissions on the question whether Dr Lewis was or was not one of the official ringside doctors for the main fight. I do not think that is ultimately of any great significance; I am content to proceed on the assumption that he was at least an experienced ringside doctor who was in fact present playing some role at the main fight. The difficulty is that it was not proved that he determined that Mr Green was concussed. The defendants submitted that is the only reasonable inference to be drawn from "the available evidence" (such as it was), including the accepted fact that he made a statement to the referee indicating that he thought the fight should be stopped. It does not follow that Dr Lewis had determined that Mr Green was concussed. He may have apprehended a risk of concussion but that is not the element the defendants are required to prove.
If it can be suggested (as it was by the defendants) that Dr O'Neill did not have time to reach a determination on that issue, the same can be said with significantly greater force against Dr Lewis. He arrived on the apron after Dr O'Neill had started examining Mr Green and did not examine Mr Green himself. He has retracted the assertion that Mr Green was concussed, for that very reason. In circumstances where he was not called as a witness, I am not prepared to draw the inference contended for.
Similarly, the particulars acknowledge that a component of the basis for the opinion was that Mr Green himself considered that he was concussed. However, Mr Green also was not called to give evidence. The proposition that he had formed that opinion was based on what was probably post-match bravado in statements he made including "I didn't know if I was Arthur or Martha". That remark goes no further to proving that Mr Green had concussion than his relatively more contemporaneous self-assessment, "I'm good Doc, I'm fuckin' good".
The particulars also rely on the "publicly expressed opinions" of Dr Michael Gannon and Dr Peter Lewis. However, Dr Peter Lewis's opinion was not stated in the matter complained of and was not shown to be notorious (the plaintiff submitted that it was not open to the defendants on the pleadings to rely on that material in any event but it is not necessary to resolve that dispute).
The contention that the words attributed to Dr Peter Lewis (particulars (q) and (r)) were notorious invited the Court to draw an inference. The defendants submitted (in summary) that the contest was watched by a large television audience and was the subject of widespread publicity; that the readers of Mr FitzSimons' column would have been sports fans and would have watched other media coverage in relation to sport; that the television broadcast containing the interview with Dr Peter Lewis was broadcast as part of a news segment on the ABC and was in the public domain; that there was a transcript of his statements on the ABC website and that a substantial proportion of the intended audience of Mr FitzSimons' column would most likely have watched footage of the contest and the blow after the event.
I accept, as submitted by Dr O'Neill, that the opinion of one doctor expressed a few days before publication of the matter complained of as to whether Mr Green was concussed could not be considered a notorious fact. There was no evidence to establish that Dr Peter Lewis is widely known in the Australian community. The suggestion that material becomes notorious by being broadcast on the ABC (still less, by being placed on its website) is novel and must be rejected.
Particulars (h) and (i) suffer from a different problem. The amendments to those particulars were, with respect, aspirational. The defendants might wish that the opinions of Mr FitzSimons had been expressed by reference to a contingency ("if [Green] had suffered concussion"; "if Green was already concussed") but that is simply not how the article was written. It includes the clearest statements that Mr Green was concussed. I am satisfied that the ordinary reasonable reader would have understood Mr FitzSimons to be stating that proposition as fact and to have intended that fact to be considered as part of the basis of his opinion.
Finally, Dr O'Neill submitted that any opinion is not protected under s 31 because there is no rational connection between the facts stated and the opinions expressed. It is difficult to determine that issue in circumstances where the parties are in dispute as to what was fact and what was opinion. If the proper analysis is that, based on the stated fact (had it been the fact) that Mr Green was suffering concussion, brain damage and bleeding on the brain, Mr FitzSimons was of the opinion that it was reckless to allow Mr Green to continue fighting, that could hardly be impugned as an irrational or unreasonable opinion. However, it is not necessary to decide that question.

[17]

Defeasance

In case my conclusion as to the defence of honest opinion is wrong, it is appropriate to consider the matters of defeasance pleaded in the reply. Section 31(4) of the Defamation Act relevantly provides: "A defence established under this section is defeated if, and only if, the plaintiff proves that: (a) in the case of a defence under subsection (1)--the opinion was not honestly held by the defendant at the time the defamatory matter was published, or (b) in the case of a defence under subsection (2)--the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published…
Dr O'Neill bears the onus of proof on this issue. In order to defeat the defence, it would be necessary to establish that Mr FitzSimons did not honestly hold the opinions in question. As to the newspaper, it would be necessary to establish that it did not honestly believe that the opinion was honestly held by Mr FitzSimons. Dr O'Neill submitted, by reference to the evidence of Mr FitzSimons in the trial, that at the time the articles were published Mr FitzSimons did not hold a particular belief about Dr O'Neill and accordingly that he could not have honestly held the opinion that Dr O'Neill was incompetent, negligent or reckless in allowing the fight to continue.
I do not accept that submission. Mr FitzSimons is nothing if not passionate about this issue. In my assessment, he is also fiercely, even abrasively honest. In his oral evidence, he made plain his understanding of what concussion means, based on his own extensive exploration of that issue. I have no doubt that he is sincere in equating rattling the brain (through a blow to the head) with brain damage and bleeding on the brain. While his article targeted the boxing industry as a whole, I accept, as submitted by the defendants, that his attack was broad enough to encompass the conduct of the plaintiff. The fact that he omitted Dr O'Neill's name in the article reinforces my conclusion that he felt critical of Dr O'Neill's conduct even if he did not say so in terms. I accept, for the reasons submitted on behalf of the defendants, that nothing in the evidence established that Mr FitzSimons did not honestly hold the opinions embodied in the imputations. The defendants also noted that nothing was put forward to suggest that the newspaper did not believe Mr FitzSimons held those opinions. Accordingly, had it been necessary to determine this issue, I would have found that the matters of defeasance were not proved.
In any event, for the reasons already given, the defence of honest opinion must be rejected.

[19]

Meaning of the term "concussion"

As already noted, there was a contest as to the meaning of the term "concussion" in the imputation. For the reasons already explained, I have understood the imputation to use that term in its medical sense (if that definition differs from the ordinary meaning, which I do not accept). Within the medical evidence, while there was no single agreed definition of that term, there was a degree of common ground. The descriptions of the experts variously described concussion by reference to functional disturbance or structural injury.
Dr O'Neill defined concussion as functional disturbance, as follows: "abnormal brain function following head trauma..."
As already noted, expert evidence was also given by Dr Cochrane. Dr Cochrane is a consultant neurosurgeon with significant experience in neuro and spinal surgery. He completed his Fellowship with the Royal Australasian College of Surgeons in January 2007. He is an accredited assistant surgeon at St Vincent's Private Hospital and North Gosford Private Hospital.
In his written report dated 9 March 2018, Dr Cochrane defined "concussion" as an injury, as follows: "A concussion is an injury of the brain manifest by a blow, rotation injury or change in velocity subject to the brain that results in neurological impairment (usually temporary but sometimes protracted). Concussion may or may not be associated with a loss of consciousness (and it is known that loss of consciousness may be seen in as few as 10% of persons who ultimately [are] found, on neuropsychological testing, to be suffering a concussion). Concussion may or may not be associated with injuries evident on a screening of the brain by means of radial investigation (MRI in particular), but most sufferers of concussion will not have an observable or an acute injury of the brain on MRI scan. Concussion is a relatively broad term for what might otherwise be known as a mild traumatic brain injury."
In evidence in the trial, Dr Cochrane expanded upon that explanation as follows: "Concussion in my mind is a physiological and anatomical disturbance to the brain... So some physical changes must occur in the brain, whether they are visible or not, to result in concussion as an injury. An injury will not resolve in 25 seconds or thereabouts."
However he also agreed in cross-examination that concussion is a transient impairment of neurological function caused by a blow that resolves spontaneously.
The other expert called for the plaintiff was Dr Marc Coughlan, an experienced neurosurgeon. Dr Coughlan graduated from the University of Cape Town in 1996 with a Bachelor of Medicine and Surgery. He completed his Fellowship with the Royal Australasian College of Surgeon in Neurosurgery in May 2005. He is a consultant Neurosurgeon at North Gosford Hospital and an associate partner at the Centre for Minimally Invasive Neurosurgery at Prince of Wales Private Hospital. In his written report dated 15 March 2018, he defined concussion by reference to a disturbance of function, as follows: "Concussion is a clinical diagnosis of transient neurological dysfunction induced by mechanical forces to the brain that result in a functional disturbance of the brain function. Concussion falls within the spectrum of traumatic brain injury and is a clinical diagnosis."
He maintained that definition in cross-examination.
The defendants called expert evidence from Dr Peter Lewis, an experienced general practitioner and ringside doctor. Dr Peter Lewis graduated from Monash University in Melbourne with a Bachelor of Medicine and Bachelor of Surgery in 1983. He has been a ringside physician in boxing since 1988, working domestically and internationally. He has been the ringside physician for several world titles. He is the chairman of the Australian Ringside Medical Association. He defined concussion as follows: "My working definition of concussion, based on my years of experience, is impaired brain function as a result of a traumatic blow. This is characterised by impairment in coordination, judgment and memory."
The defendants also sought to rely on the 2012 Consensus Statement on Concussion in Sport [16] . Counsel for Dr O'Neill submitted that the consensus statement was not definitive but acknowledged that it contained information relevant to the growing understanding of what a concussion was at the time of the contest. The defendants submitted that it was a "convenient compendium of the state of awareness of the medical and scientific community generally as to such things as what is concussion, and how do you recognise it". The consensus statement defines concussion as follows: "Concussion is a brain injury and is defined as a complex pathophysiological process affecting the brain, induced by biomechanical forces. Several common features that incorporate clinical, pathologic and biomechanical injury constructs that may be utilized in defining the nature of a concussive head injury include: 1. Concussion may be caused either by a direct blow to the head, face, neck or elsewhere on the body with an "impulsive" force transmitted to the head. 2. Concussion typically results in the rapid onset of short-lived impairment of neurologic function that resolves spontaneously. However in some cases, symptoms and signs may evolve over a number of minutes to hours. 3. Concussion may result in neuropathological changes, but the acute clinical symptoms largely reflect a functional disturbance rather than a structural injury and, as such, no abnormality is seen on standard structural neuroimaging studies. 4. Concussion results in a graded set of clinical symptoms that may or may not involve loss of consciousness. Resolution of the clinical and cognitive symptoms typically follows a sequential course. However, it is important to note that in some cases symptoms may be prolonged."
I do not accept the defendants' submission that the consensus statement allows me to determine whether or not Mr Green was in fact concussed. As I will explain, I am satisfied that the diagnosis of concussion is a clinical diagnosis for the treating physician, or, if that is wrong, at least a subject for expert medical evidence.
In his closing submissions, Dr O'Neill defined concussion as follows: "a concussion is an injury of the brain manifest by a blow, rotation injury or change in velocity subject to the brain that results in neurological impairment - most sufferers of concussion will not have an observable acute injury of the scan - it is a relatively broad term for mild traumatic injury"
The defendants' medical definition of concussion can be inferred from the following in closing submissions: "The experts all said or accepted that the meaning of "concussion" was along the following lines: "a transient impairment of neurological function, caused by a blow, that resolves spontaneously", being a form of "traumatic brain injury". All of them (with the notable exception of Dr Cochrane) said that it was a functional disturbance rather than a structural injury."
Doing the best I can with that evidence, I have proceeded on the basis that concussion is defined as the transient impairment of neurological function induced by a force or blow and that it is a mild form of traumatic brain injury. I accept that it usually resolves spontaneously with the caveat that it may on occasion lead to serious acute injury. I also accept that the determination as to whether a person has concussion is a clinical diagnosis based on an evaluation of a constellation of signs and symptoms.

[20]

Expert Evidence

Dr O'Neill provided an expert report in this matter. He readily conceded that he is not an independent witness in the matter but considered it appropriate to reduce his opinion to the form of a report so as to be admissible at all. I have approached his opinion evidence with caution because of his personal interest in the matter. That said, I found no reason to doubt it.
In cross-examination Dr O'Neill accepted that, following the blow, Mr Green displayed signs consistent with concussion: "Q. Now, do you agree with this, Dr O'Neill, that the outward signs and symptoms which indicate a possible concussion after a blow to the head would include the following: a loss of balance? A. Yes. Q. Or an impairment of balance? A. Yes. Q. A temporary disorientation? A. A disorientation, yes. Q. Stumbling? A. Yes. Q. Staggering? A. Yes. Q. Difficulty remaining upright? A. Yes. Q. Having legs which might be described as jelly legs or rubber legs? A. l don't know what that term means. Q. Don't you? A. No. Q. Slumping down to the ground? A. Isn't that the same as being unable to stand? Q. It may be. Slumping down to the ground? A. Yes. Q. And difficulty in getting up? A. Yes. Q. Needing to lean on something in order to stand? A. Yes. Q. A glassy or vacant expression? A Yes. Q Heavy breathing? A No. Q. All right. Well, with the exception of heavy breathing - sorry, I withdraw that. I suggest to you that Danny Green displayed every one of those signs that I've just been through with you, immediately after the first round blow. Do you agree? A. Yes. Q You saw all of them at the time on the night, didn't you? A. Yes. Q. Now, putting aside for the moment, the matter of his responses to your questions, which I will come to, but focusing just on the physical signs that I just went through with you, do you agree that simply because of the existence of those signs, even before you commenced your assessment on the apron, those signs were sufficient to indicate that Green was concussed? A. No. Q. Do you accept that the existence of all those signs which you saw meant that a much more thorough examination of Danny Green was necessary than what you were able to do in the very short time available to you? A No.
Dr O'Neill observed that, following the blow, Mr Green was never motionless on the floor of the ring and that he did not lose control of his head. He said his physical examination of Mr Green indicated normal physiological signs. The verbal component of his examination was normal. In his opinion, Mr Green was not concussed.
Dr Cochrane supported that opinion. In his report, he said: "I have observed the video footage of the Contest. I believe Green was transiently disoriented by a blow sustained in the first round punch as described. I do concede that Green suffered a temporary disorientation. I do not however believe Green suffered a concussion. The reason I state this is that Green demonstrated, after being assessed by the ringside doctor, Dr John O'Neill, that he appeared to be lucid, appropriate and seemingly responding appropriately to questions, with no evidence of visual impairment, and the ability to maintain normal gait and balance subsequent to the clinical assessment at the ringside."
In further evidence in chief, Dr Cochrane was asked whether it is possible for a person to be concussed and for the symptoms or the concussion to resolve or disappear within 25 seconds (which was approximately the duration of Dr O'Neill's assessment of Mr Green face to face on the ring apron). He said he did not believe that was possible. He explained that, in his view, concussion is "a physiological and anatomical disturbance to the brain".
As already noted, Dr Cochrane agreed that a reasonable definition of concussion is "a transient impairment of neurological function caused by a blow that resolves spontaneously". He also accepted that, for a few seconds after the blow, Mr Green displayed apparent neurological impairment. However, he did not accept that it followed that Mr Green had concussion. He maintained the view that the fact that Mr Green was able to resume the contest indicated that he was not concussed, saying: "It demonstrates that it's extremely unlikely that a concussion has occurred if there's persisting normal neurological function in terms of coordination, agility, balance and the like."
Dr Cochrane was an impressive witness. I have placed considerable weight on his evidence.
Dr Coughlan took the view that he was not in a position to form a definitive opinion as to whether Mr Green was concussed because he maintains that concussion is a clinical diagnosis based on a constellation of the history of symptoms obtained and signs observed by the clinician. However, having watched the footage of the fight, he considered that the examination carried out by Dr O'Neill was appropriate for the setting. Dr Coughlan gave evidence that it would be unlikely for a concussion to occur and resolve within 25 seconds because some physical changes must occur to the brain which could not resolve that quickly.
In cross-examination it was put to Dr Coughlan that 25 seconds at ringside was insufficient to carry out a clinical diagnosis for concussion. He said: "A. Would you - no, I wouldn't agree with that. I wouldn't agree with that. I think you - you are arguing about the thoroughness and what's appropriate depending on where you are. But if you say that, it's like saying any paramedic who comes to the roadside and does a cursory examination of an - confused, unconscious patient is not accurate, l - I don't think that's reasonable."
Dr Coughlan was also pressed as to his opinion that a conclusion as to concussion must be reached as a clinical diagnosis. It was put to him in cross-examination that, where the signs are "so obvious", it would not require a medical degree to reach a conclusion of concussion. He disagreed, saying: "I do need a medical degree to see whether or not a patient that is imbalanced or poorly balanced is concussed."
He accepted that it is not necessary to have a medical degree to see if someone is imbalanced but maintained that one does need a medical degree to form a reliable diagnosis or opinion about whether a person who has displayed poor balance has concussion.
Dr Coughlan emphasised that the diagnosis of concussion is based on a constellation of symptoms some of which are "hard" and some of which are "soft"; hard symptoms including vomiting and severe confusion; soft symptoms including a glazed look and ataxia (loss of coordination). He also emphasised the importance of expertise in assessing those signs. Dr Coughlan was also an impressive witness and I have given his evidence significant weight.
The defendants' expert, Dr Peter Lewis, is an experienced general practitioner and ringside doctor. In contrast to the evidence of Dr Coughlan, he considered that it is possible to form an opinion as to whether an individual is concussed by a blow by watching video footage (as opposed to making a clinical diagnosis). He was of the view that Mr Green suffered concussion because he was unable to stand without assistance and appeared dazed and confused and because his eyes were glazed and unfocused. The premise that Mr Green was unable to stand without assistance was not explored. To my observation (from the footage), while he did slump against the ropes, Mr Green regained his stance unassisted within a short period.
Dr Peter Lewis did not agree with Dr Cochrane's opinion that the fact that Mr Green's outward signs of concussion appeared to resolve quickly indicated that he was not concussed. Dr Peter Lewis said that, as concussion is a dynamic affliction, the fact that the objective indicators spontaneously resolve does not indicate that the patient was not at one point concussed. He also maintained in cross-examination that there is no time basis for a diagnosis for concussion. He stated that concussion can last for seconds.
Separately, he expressed the opinion that a period of less than one minute, the time in which Dr O'Neill assessed Mr Green, was insufficient to make a diagnosis of concussion.

[21]

Truth of the concussion imputation

I will address the imputations in the order in which they were addressed in the defendant's submissions.
The defendants addressed the concussion imputation first. They submitted that imputation (c) raises the following issues of fact: 1. whether Mr Green was concussed as a result of the blow (including whether he "obviously" had concussion); and 2. in circumstances where Mr Green was concussed, whether Dr O'Neill acted recklessly by failing to stop the fight.
As already explained, I have approached this issue on the basis that the defendants are required to prove that Mr Green was in a state that warranted a diagnosis of concussion based on an evaluation of a constellation of signs and symptoms. The defendants' case appeared to assume that, if the known signs and symptoms of concussion were proved, it would necessarily follow that Mr Green had concussion. I reject that approach. It entails a false syllogism. In my view, the conclusion that a person is concussed must entail an evaluative assessment (by a person with appropriate expertise) of the constellation of symptoms and signs noted and observed.
As indicated by the expert evidence summarised above, the parties were in dispute as to whether that assessment can be made after the event by an analysis of video footage. Dr O'Neill maintained that concussion was only assessable by a clinical diagnosis: "The diagnosis of concussion is strictly a clinical one... it means you have to examine - it's a two-component examination of the person that has had the head trauma, comprising both a physical and a verbal component. The idea being that with a good - now called 'head injury assessment', but it's the same thing - with a good head injury assessment comprising those two components, a physical and a verbal component, you will either verify the presence of abnormal brain function or exclude the presence of abnormal brain function, thereby confirming a concussion or eliminating a concussion."
Similarly, Dr Coughlan maintained in cross-examination that a concussion is a clinical diagnosis unable to be conclusively determined in any other way. He said: "Q. But do you need a medical degree to form a reliable diagnosis or opinion about whether someone has concussion? A. Well, yes. If you look at the SCAT5 document they say, do not - "Concussion is a clinical diagnosis to be made by a medical practitioner based on the following criteria", and they give you a set of hard criteria. So, I think the word concussion is bandied around very glibly. Perhaps if we're discussing confusion or acute confusional state, but concussion is a clinical diagnosis..."
The consensus statement relevantly states: [17] "While agreement exists pertaining to principal messages conveyed within this document, the authors acknowledge that the science of concussion is evolving and therefore management and return to play decisions remain in the realm of clinical judgment on an individualized basis."
I am satisfied on the strength of that evidence that concussion is properly regarded as a clinical diagnosis. Dr O'Neill was the only person who carried out a face to face assessment of Mr Green. I am satisfied on the strength of Dr O'Neill's evidence and that of his expert witnesses that he carried out reasonable steps in making that assessment. On that basis, I am not satisfied on the balance of probabilities that, at the time the fight was allowed to continue, Mr Green obviously had concussion.
That is a sufficient basis for rejecting the justification defence insofar as it concerns imputation (c). The defence in response to imputations (a) and (b) was essentially derivative, resting on the contention that, if (c) was established to be true, it could be accepted that (a) and (b) were substantially true. It follows that the defence must fail.
In case my conclusion for determining the defence in respect of imputation (c) on the narrow basis indicated above is wrong (that is, lest it be found that a conclusion of concussion is not exclusively within the province of a medical practitioner by clinical diagnosis), it is appropriate to indicate that I would nevertheless have concluded that Mr Green was not concussed, for a number of reasons.
First, Dr O'Neill was in the best position on the night to carry out the assessment for concussion. His assessment that Mr Green was not concussed is of significant weight. I accept Dr O'Neill's evidence that it is not significant that he did not see the blow land and that the clinical assessment is far more significant in assessing a patient for concussion. Dr O'Neill was watching Mr Green very closely after the blow and saw no signs of concussion. The following evidence on that issue was not challenged in cross-examination (Tcpt 56): [18] "Q. Now, could I just go back to the fight itself. The fight resumed. Did you observe Mr Green and what he was doing after the fight resumed? A. Very closely, yes. Q. Did that tell you anything about whether you had been correct in determining that he had not suffered concussion? A. I observed Danny Green to not give me any indication that he had suffered from that blow to the head in any way, shape or form. Q. What was there about what he was doing that made you think that? A. His footwork was absolutely normal. At no stage did he stumble, trip, lose balance, or appear clumsy. Also, his strength. For the rest of that round and for the duration of the fight, he was able to, in clinches and in close contact with his opponent, Anthony Mundine, significantly push him around and not be pushed or manhandled by his opponent. So his agility and his strength were undiminished. Q. What about timing, things like that? A. Completely normal.
Secondly, Mr Green went on to win the fight in 10 rounds and gave an articulate speech in the ring after the fight. Dr O'Neill watched Mr Green give an interview after the fight and noted that he spoke clearly and was well orientated. I accept that this does not necessarily mean he was not concussed but it is a powerful consideration. In that context I note the comments of Dr Cochrane in cross-examination: "Q. --the fact that a person is able to resume, say, a boxing contest demonstrates that no concussion has occurred at all? A. It demonstrates that it's extremely unlikely that a concussion has occurred if there's persisting normal neurological function in terms of coordination, agility, balance and the like."
Mr Cofie thought that Mr Green's boxing style changed after the blow. He said: "Well, Danny Green is an aggressor. That means that somebody that goes forward in a boxing match. In that particular boxing match, Danny Green was heavier than Anthony Mundine and Anthony Mundine is a defensive fighter, so he uses his punches whilst he's on the retreat and he uses his evasive skills, you know, to offset the attacking fighter and counter punch. After the blow, Danny Green was retreating and became the defensive fighter and Mundine, almost uncharacteristically became the offensive fighter, so he was looking for the one big punch to knock him out and Danny Green was, you know, I think obviously quite slower and defensive. So the whole scope of the contest changed."
That may or may not be an indication of the impact of the blow. It is not necessarily a sign that Mr Green was concussed. There might be many reasons for such a change in approach in a boxing contest.
Thirdly, my assessment of the expert evidence supports that conclusion. Dr Cochrane gave logical and comprehensive evidence justifying his conclusion that Mr Green was not concussed: "It is my perception that as a result of a blow to the chin sustained during the contest Green was stunned. He was not knocked unconscious. He most certainly suffered a transient state of decreased capacity, after which he appeared to respond appropriately to screening questions administered by the ringside doctor and was looking directly at the ringside doctor during the assessment, and (as far as l can ascertain), correctly responded to questions asked of him. Green regained composure some eight seconds after he first slumped at the ropes, and to my eye appeared to be fully lucid within 20 seconds of the administered blow. I have no doubt that there was a transient alteration in Green's functional capacity as a result of the blow, but to my eye he appeared to rapidly regain a normal function and to me there was no evidence of impairment of behaviour, coordination, balance and in fact he went on to perform at the expected level in a professional boxing competition to the conclusion of a 10 round Contest, ultimately winning the Contest. This suggested [sic] me there was no evidence that a significant head injury was sustained, be it a concussion or otherwise, that caused impairment to Green beyond the few seconds being dazed after the subject blow. There is therefore no evidence on the behaviour and function as evidenced [sic] me by the video footage, the [sic] Green suffered a neurological condition that impaired his function, such as a concussion would do. Green was not concussed as a result of the subject blow as supplied on the video footage ... I have observed the video footage of the Contest l believe Green was transiently disoriented by a blow sustained in the first round punch as described. I do concede that Green suffered a temporary disorientation, I do not however believe Green suffered a concussion. The reason I state this is that Green [sic] demonstrated, after being assessed by the ringside doctor, Dr John O'Neill, that he appeared to be lucid, appropriate and seemingly responding appropriately to questions, with no evidence of visual impairment, and the ability to maintain normal gait and balance subsequent to the clinical assessment at the ringside. Substance [sic] to the assessment, Green appeared to be oriented and able to continue the Contest. I fully concede that Green suffered a transient [sic] to alteration in a state which I would best defined [sic] as being a "stunning" event" almost certainly as result of the blow sustained, but I do not believe on the evidence provided to me that a concussion eventuated."
Commenting on whether concussion should have been suspected, Dr Cochrane said: "I agree that concussion should have been suspected. I perceive that Dr O'Neill did in fact suspect a concussion and appears to be performing appropriate neurological screening for this at the ringside. [sic] Is my opinion that Dr John O'Neill made a reasonable determination that concussion had not occurred."
Dr Cochrane was an impressive witness. As already noted, he is a renowned neuro and spinal surgeon. He made concessions where appropriate and did not present his evidence in a partisan fashion.
Whilst I acknowledge Dr Peter Lewis's eminence and experience in this field, I found his opinion less compelling. He said: "The First Round Blow caused Green to suffer a concussion. This is evidenced by the video footage I have watched, which showed Green unable to stand without assistance, appearing confused and disoriented, and on a brief closeup of his face, his eyes appear glazed and unfocussed. As per Sports Medicine for the Combat Arts, progression to a staggered and uneven stance is a major indication of either head trauma or another major concern, and requires swift assessment by the ringside physician, and an abrupt halt of proceedings until this assessment is undertaken." (footnotes omitted).
I accept that Dr Peter Lewis is an extremely experienced ringside doctor. However, it is important to note that his expert opinion was based on his observation of the footage of the contest. He did not have the benefit of examining Mr Green, looking directly into his eyes as Dr O'Neill did, watching his movement first hand and hearing him speak. Further, whilst I am acutely aware of the fact that I am not an expert in this medical field, to the extent that expert opinions in the case are based on what is seen on the video, I have also watched the video for myself many times and am able to form my own view as to what can be seen. I accept that Mr Green appears to have been stunned by the blow momentarily. However, it can be seen from the video footage that he did not lose consciousness (he can be seen mouthing profanities). Further, to my observation, loss of physical balance from the force of the blow was a significant factor, if not the sole cause, in his stumbling back towards the ropes. Once back on the ropes, after briefly slumping towards the ground in a one-legged crouch or squat, he regains his stance unassisted and walks over to the referee. During that time the referee places his hands on Mr Green's body several times but to my observation, apart from during the initial stumbling back to the ropes, the referee is not providing any physical support for Mr Green's balance.
Fourthly, I note that the MRI report conducted in the week after the fight noted no change from the MRI carried out in 2015. As already explained (and addressed again below), the SWI sequencing effectively excluded bleeding and the defendants have acknowledged that the reference in the article to bleeding on the brain was incorrect.
Fifthly, Dr O'Neill was more familiar with Mr Green as a patient than any other expert witness. He gave evidence, which I accept, that his familiarity with Mr Green meant that he was better able to assess him for concussion: "Q. I understand. Is there any significance in a ringside physician's knowledge or experience with the individual boxer? A. Very much so. Q. Why? A. You get to know mannerisms, small things, looks. Other subtle body language signs. Like, for instance what I just expressed then. And you know when something isn't right with a boxer. The better you know them, the better you can sense if things aren't quite right.
I also note that Dr O'Neill had previously indicated to Mr Green's manager to concede a fight after forming the view that Mr Green's safety was at risk and that he might have been concussed during a contest. I am satisfied on that basis that Dr O'Neill was not a stooge for the Green camp; he was prepared to stop a fight if he assessed there to be a risk.
I have already referred to the fact that, in the matter complained of, Mr FitzSimons placed reliance on the fact that, after the fight, Mr Green had said (referring to when he was struck) that he didn't know if he was "Arthur or Martha". I do not think that is particularly significant. The statement was not intended as a description of symptoms in a medical context and probably involved an element of bravado.
Further, I am satisfied that the period of Dr O'Neill's examination, although short, allowed enough time for him to reach a conclusion as to whether or not Mr Green was concussed. That conclusion finds support in the evidence of Dr Coughlan.
Although Dr O'Neill conceded that Mr Green showed several soft signs of concussion after the blow, he maintained in cross-examination that he was still in a position to rule out concussion. I accept that evidence.
Although I have interpreted the video more benignly than Dr Peter Lewis, it may be accepted that Mr Green displayed at least some of the signs referred to above on the night. Dr O'Neill was alive to the possibility of concussion based on those signs. He excluded concussion at the end of his clinical assessment. As submitted on behalf of Dr O'Neill, symptoms of maladies overlap and cannot be taken to lead definitively to the diagnosis of one injury or disease without clinical assessment. For those reasons l reject the defendants' submission that Dr Cochrane's evidence, which indicated Mr Green was suffering signs consistent with concussion, must lead inevitably to the conclusion that he was in fact suffering concussion.
Finally, I note that, although Dr Lewis was not the official ringside doctor on the night, he assumed responsibility for completing the post-fight medical forms and recorded that there was no evidence of injury arising from the contest. The defendants submit that this is of little weight as the concussion had resolved by then. I disagree. In my view the failure to list concussion as an injury suffered during the contest indicates that, in all probability, at the time he completed the form, Dr Lewis shared the view that Mr Green had not suffered concussion during the fight. If he thought he had, it would be extraordinary for a doctor to omit that from the post-match record.
For those reasons, the defendants have failed to prove that imputation (c) was substantially true.

[23]

Truth of the bleeding on the brain imputation

The defendants submit that imputation (a) raises the following factual issues: 1. whether Mr Green suffered bleeding on the brain as a result of the blow; and 2. in circumstances where Mr Green had bleeding on the brain, whether Dr O'Neill acted incompetently by allowing Mr Green to continue fighting in the contest with Mr Mundine.
As already noted, the defendants conceded in March 2017 that the statement that Mr Green suffered bleeding on the brain was incorrect. In the circumstances, the attempt to justify imputation (a) was surprising. The defendants adduced no direct evidence that Mr Green suffered bleeding on the brain as a result of the blow. Rather, the defence rested on inference on the basis that such bleeding is a possible incident of concussion.
Dr Cochrane defined bleeding on the brain as follows: "This represents the leakage or extravasation of blood from vessels in the brain to outside of the vessels of the brain, into or around the substance of the brain. Typically but not always, bleeding or haemorrhage on the brain it is a result of a traumatic event involving the brain. Sometimes bleeding on the brain can be caused by a rupture of vessels in the brain by, for example, the rupturing of an intracranial aneurysm. Bleeding of the brain is almost always picked up by radiological investigation such as CT scan or MRI scan."
He did not consider that Mr Green suffered bleeding on the brain from the blow: "I consider it highly unlikely that a Green suffered bleeding on the brain as to me he demonstrated no signs of gross motor dysfunction, sustained alteration of consciousness nor apparent neurologic impairment beyond a few seconds after the subject blow."
It is significant in this context to note the result of the SWI sequencing undertaken when Mr Green had an MRI on 9 February 2017. Dr Cochrane noted that the report indicated no bleeding and that the accuracy of the test was in the order of 97%-99%.
Dr Coughlan defined bleeding on the brain as follows: "Bleeding on the brain usually refers to a contusion or haemorrhage within the brain substance itself. This refers to structural macroscopic structural changes in the brain whereby there is destruction of either the small capillaries or larger vessels within the brain structure itself leading to extravasation of blood into or around the brain."
Dr Coughlan concluded that he was not in a position to form a view as to whether Mr Green suffered bleeding on the brain from the blow. He considered it impossible to accurately clinically diagnose bleeding on the brain without further testing.
Dr Peter Lewis was not asked whether Mr Green suffered bleeding on the brain from the blow. Instead he was asked whether micro-haemorrhaging or damage to the small blood vessels in the brain could be caused by concussion. He said: "There is a correlation between concussion and positive findings such as micro-haemorrhage and vessel damage on advanced imaging studies such as MRI, the sensitivity and specificity of these associations are low (2,3). Concussion may cause micro-haemorrhaging and small vessel trauma as evidenced by advanced MRI technology, but it does not always lead to such, and it is not required in the diagnosis of a concussion. With more severe trauma, the likelihood of positive findings increases. Significant positive findings such as haemorrhage, oedema and micro-trauma on MRI are highly suggestive of concussion, but again cannot confirm a diagnosis of concussion. To restate my definition of concussion, it is a diagnosis based on function, not imaging results."
The evidence as to a correlation between concussion and positive findings such as micro-haemorrhage and vessel damage should readily be accepted. However, for the reasons already stated, the evidence has not persuaded me that Mr Green did have concussion. Even if I am wrong about that, the evidence goes no higher than to establish a possibility of micro-haemorrhage and vessel damage. Dr Peter Lewis accepted that concussion does not inevitably lead to micro-haemorrhaging; he simply noted that there is a correlation.
I am not persuaded on the balance of probabilities that Mr Green suffered bleeding on the brain as a result of the blow, even if I am wrong as to whether he was concussed by the blow.

[25]

Damages

Dr O'Neill has succeeded in establishing that he was defamed by both publications sued on. The scope of publication was broad. The printed version of the article was published to an estimated 715,134 readers. [19] The online version, which was almost identical, was published to an estimated 43,292 readers. A revised version of the online article (with part of the defamatory content removed but which was still defamatory) was viewed by an estimated 44,193 readers. [20] The defamation was significant and Dr O'Neill is entitled to a substantial award of damages.
It is necessary to take into account the fact that Dr O'Neill was not named in the articles. The scope of publication must necessarily be considerably less in that circumstance. Conversely, however, I am satisfied that the damage to reputation occurred within the circles in which Dr O'Neill's reputation counts most, since those are the circles in which he would have been identified as the unnamed ringside doctor referred to in the article.
The principles regarding assessing damages for defamation are well established. The purpose of an award of damages is to provide consolation for hurt to feelings, compensation for damage to personal and professional reputation and vindication of Dr O'Neill's reputation. [21]
Section 34 of the Defamation Act requires the Court to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
Section 35 of the Act specifies the maximum amount of damages for noneconomic loss that may be awarded in defamation proceedings (unless the Court orders otherwise under subsection (2)). The amount is increased each year. The current amount is $407,500 as at 1 July 2019.
A debate as to whether that amount is to be regarded as the upper limit of a range within which all awards must fall or, alternatively, a mere cut-off point has been resolved by the decision of the Court of Appeal of Victoria in the Rebel Wilson case: Bauer Media Ply Ltd v Wilson (No 2) (2018) 361 ALR 62; [2018] VSCA 154. The decision authoritatively rejects the proposition that the maximum damages amount identified in s 35(1) of the Act fixes the upper limit of a duly confined range. The decision further holds at [249] that, where the condition for the exercise of the discretionary power in s 35(2) is enlivened (that is, where the court is satisfied that the circumstances of the publication are such as to warrant an award of aggravated damages): "The court is entitled to make an order for damages for non-economic loss that exceeds the statutory cap in respect of both pure compensatory damages and aggravated compensatory damages. In other words, the statutory cap does not then constrain the court's assessment of damages for non-economic loss; when an award of aggravated damages is warranted, the statutory cap is inapplicable."
However, as noted in the judgment at [244], the assessment remains subject to s 34, which stands as "an ever-present guide".

[26]

Hurt to feelings

The imputations are very serious, striking at the heart of Dr O'Neill's professional reputation. The publication of such imputations would be extremely hurtful to anyone in Dr O'Neill's position. He gave the following evidence on that issue, which I have no hesitation in accepting: "I feel terrible. This never leaves me. This is something that's like a black cloud or a black mark on my whole being. I can never escape from this, and to know that these things still exist out there somewhere, that really does hurt and, as I said, these are things that - I guess the word 'haunted' is not beyond how I feel. I feel devastated, haunted. These things have had a major effect on me personally, on my self-confidence, on the very things that I do, which is work with people in brain-related areas. This is dreadful. I am constantly suspicious, l wonder if this person has read these articles, or even though, you know, they may not say it to you, when you're assessing a child with parents you wonder whether they've read some of this or whether the father might be a boxing fan or may recognise me from the footage at the - and to know that these things still exist and haven't been sorted out and are still being put up as right and true, it's devastating."
Dr O'Neill gave evidence that, following publication of the articles and while he was working at a private hospital, a colleague alluded to discussions between staff fueled by the matters complained of as to whether Dr O'Neill let the fight go on despite bleeding on the brain when it should have been stopped. He was not cross-examined on that issue.
The defendants raised an issue concerning Dr O'Neill's credibility. It became apparent that he was mistaken as to when he first read the articles, as demonstrated by an email sent to Mr Green on 10 February 2017. In my view, the inconsistency in his evidence on that issue is not significant. It is readily explained by the fact that it would have been a fraught time in his life. In evidence before me he conceded that he was mistaken about when he first read the articles in light of the email.
Several witnesses gave evidence of the immediate distress and anxiety displayed by Dr O'Neill in the wake of the publications. In the months that followed he was described as being reclusive, withdrawn and obsessive about the articles.
Emily Sinead O'Neill is Dr O'Neill's daughter and a student at the University of Western Sydney. She gave evidence that she observed her father to be very hurt and upset by the matters complained of. She said that, subsequently, he has become moody and more agitated than usual. She said he was particularly hurt by the bleeding on the brain allegations in the second article. Although Dr O'Neill did not give that evidence himself, I have no doubt that imputation (a) would have been particularly hurtful.
One aspect of the articles that Dr O'Neill said was hurtful to him was his apprehension that the articles imply he was influenced in his decision to allow the fight to continue by Mr Green's desire to continue fighting. Dr O'Neill also said that he was asked by a golf professional, Mr Matt Laverty, whether he had a bet on the fight or if Mr Green had paid him a bonus, implying that he had an ulterior motive in allowing the fight to continue. However, those implications (if they arise) were not sued on as defamatory imputations and accordingly I have discounted that aspect of Dr O'Neill's hurt to feelings. I have also had regard to the likelihood that part of the hurt experienced by Dr O'Neill was due to other discussion of the incident. It seems unlikely that the entirety of Dr O'Neill's feeling described above was due to what Mr FitzSimons wrote.

[27]

Damage to reputation

I am satisfied that, prior to the publication of the matters complained of, Dr O'Neill had an excellent reputation as a doctor and a person of the highest integrity. The evidence on that issue was all one way and was not challenged.
Ms lngreed Rojas is a family friend of Dr O'Neill who has known him for 22 years. Ms Rojas said that, prior to February 2017, Dr O'Neill had a reputation for being a person of character, integrity and a down to earth good person.
Anthony Sobb is the CEO of Fairfield RSL who had held his position for 17 years. He met Dr O'Neill in 2014 through their mutual friend Johnny Lewis and they share an interest in boxing. Mr Sobb was an accredited trainer and cornerman. Mr Sobb knows people amongst the boxing community and other doctors and patients who know Dr O'Neill. He said that, prior to February 2017, Dr O'Neill had a very good reputation and was known to be a man of great integrity, a person with good knowledge and a sound ring doctor.
Frank Hadley is on the World Boxing Council Board of Governors and is a board member of the Commonwealth Boxing Council and the Oriental and Pacific Boxing Federation. He was the National Secretary of the ANBF, a position that he held for over 20 years. He has known Dr O'Neill since 2012 having worked with him in connection with a number of fights. He said that, prior to February 2017, Dr O'Neill had a reputation of being a highly regarded fight doctor and an international fight doctor.
Graham McGuinness has worked in hospital management for over 50 years and was, prior to his retirement, the CEO of the Central Coast Area Health Service. He was awarded an Order of Australia in 2012. He was good friends with Dr O'Neill. He said that, before February 2017, Dr O'Neill had a good reputation amongst the medical community in the Central Coast.
Graham Tink was a school principal in New South Wales public schools prior to retiring. He was good friends with Dr O'Neill and knows other people who know Dr O'Neill. He said that, amongst those persons, Dr O'Neill was highly regarded prior to February 2017. Relevantly he gave the following evidence about discussions he had with others in the wake of the fight: "My son spoke to me over FaceTime or by phone. His comment was, 'That looks like the last fight the doc has done. He won't be doing any more fights'... then a couple of people said: 'it looks like the doc has stuffed up this time.'"
Vicki McGuinness was the President of the Central Coast Branch of Riding for the Disabled before her retirement in 1998. She has known Dr O'Neill for about 30 years and they have become friends. She knows people who know Dr O'Neill, including persons involved in the medical profession. She said that, amongst those persons, Dr O'Neill had an impeccable reputation prior to February 2017.
Having regard to the nature of the imputations, the high profile of the fighters in question and the unhappy tendency of people particularly in professions such as law and medicine to repeat negative gossip, I am satisfied that the allegations probably spread widely amongst medical professionals and persons known to Dr O'Neill.

[28]

Matters of aggravation

Dr O'Neill sought aggravated damages on the basis that his hurt as a result of the publication of the matters complained of was aggravated by his knowledge of the following matters: (a) The conduct of the defendants in publishing the matters complained of without first seeking the plaintiff's comment; (b) The conduct of the defendants in failing to apologise despite request on 17 February 2017; (c) The conduct on the defendants in leaving the second matter complained of on the SMH website despite being notified on 17 February 2017 that many of the allegations made in it were false. Further, as already explained, despite the defendants ' concession , they maintained the justification defence claiming that Mr Green had suffered bleeding on the brain while leading no positive case on that issue apart from the correlation evidence given by Dr Peter Lewis .
Aggravated damages may be awarded where the conduct of the defendant in publishing the matter complained of or in the defence of the proceeding is improper, unjustifiable or not bona fide and such conduct increases the harm suffered. [22]
Mr FitzSimons accepts that he did not seek Dr O'Neill's comment before publishing the matters complained of. Having regard to the nature of Mr FitzSimons' column, I readily accept that it might be impracticable for him to make those kinds of inquiries. However, I am satisfied that, absent some inquiry of Dr O'Neill, the publication of the "bleeding on the brain" imputation in particular was unjustifiable.
Dr O'Neill's solicitors sent the defendants a concerns notice regarding the articles on 17 February 2017. On 16 March 2017 the defendants' solicitors accepted that the reference to bleeding on the brain was incorrect. However, while the references to bleeding on the brain were removed (almost a week later), there was no apology. The article remained online with the "Bleeding on the Brain" headline for six days after that concession.
Dr O'Neill gave evidence that his hurt was aggravated by his consideration of the logical inconsistency inherent in the concession and the maintenance of that aspect of the defence.
I am satisfied that the maintenance of the defence to imputation (a) was unjustified in the face of the concession and having regard to the complete absence of any cogent evidence to prove the truth of that very serious imputation. The seriousness of the defamation is aggravated on that account. [23]
On 13 December 2017, Dr O'Neill's solicitors put the defendants on notice that aggravated damages would be claimed on the basis of their continued failure to apologise and their continued publication of the online article since at least 18 October 2017 notwithstanding the receipt of the apology and retraction from Dr Lewis.
I am not persuaded that Dr O'Neill is entitled to any additional aggravated damages on that account. While Dr Lewis' remarks were obviously an important source used in the preparation of the matters complained of, the truth defence relied primarily on the footage of the fight and the evidence of the defendants' own experts.
I am satisfied that aggravated damages are warranted on the basis of the failure to contact Dr O'Neill before publishing the articles, the failure to apologise in regard to imputation (a) and the defendants' maintenance of the defence of justification concerning that imputation.

[29]

Matters of mitigation

The defendants relied on a number of matters in mitigation of damages, as follows: (a) the circumstances in which the publication of the matters complained of were made; (b) the substantial truth of such of the plaintiff's imputations that are proved to be true; (c) the substantial truth of such of the particulars of justification set out above as are proved to be true; (d) the facts, matters and circumstances proven by the defendants in evidence in support of the justification defence; (e) the plaintiff having brought proceedings for defamation against Dr Lewis (Supreme Court of New South Wales Proceedings No 2017/137662) in relation to the publication of matter to the same effect as the matters sued on in these proceedings; (f) any damages award made in favour of the plaintiff in the proceedings referred to in (e) above; (g) any receipt by the plaintiff, or agreement to receive, compensation for the publication of the matter the subject of the proceedings referred to in (e) above."
The defendants cross-examined a number of witnesses as to their knowledge of other articles (published by other media organisations) concerning the Green versus Mundine fight where similar criticisms were made of Dr O'Neill. Dr O'Neill submits that those articles are irrelevant to my assessment of damages because they were not particularised but more importantly because of the application of the English decision of Associated Newspapers v Dingle. [24]
In Dingle, Lord Radcliffe said: "A libel action is fundamentally an action to vindicate a man's reputation on some point as to which he has been falsely defamed, and the damages awarded have to be regarded as the demonstrative mark of that vindication. lf they could be whittled away by a defendant calling attention to the fact that other people had already been saying the same thing as he had said, and pleading that for this reason alone the plaintiff had the less reputation to lose, the libelled man would never get his full vindication. It is, I think, a well understood rule of law that a defendant who has not justified his defamatory statements cannot mitigate the damages for which he is liable by producing evidence of other publications to the same effect as his; and it seems to me that it would involve an impossible conflict between this rule and the suggested proof of tarnished reputation to admit into consideration other contemporary publications about the same incident. A defamed man would only qualify for his full damages if he managed to sue the first defamer who set the ball rolling: and that, I think, is not and ought not to be the law."
Lord Denning reached a similar conclusion: "It does a newspaper no good to say that other newspapers did the same. They must answer for the effect of their own circulation without reference to the damage done by others. They may not even refer to other newspapers in mitigation of damages."
That principle has been taken to be the law in Australia: Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 99.4 per McHugh J; Chakravarti v Advertisers Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37; Green v Schneller [2000] NSWSC 548 at [100] per Simpson J (as her Honour then was). Those authorities establish that a defendant is not entitled to mitigate the damages awarded against a plaintiff by showing that his or her reputation was damaged by reason of publications not the subject of the proceedings.
Particulars (b) and (c) can be put to one side as I have found the imputations were not substantially true.
The defendants submit particular (d) goes to any facts proven in mitigation consistent with jurisprudence derived from the authorities of Pamplin v Express Newspapers Ltd (No 2) [25] and Burstein v Times Newspapers Ltd. [26]
In Gacic v John Fairfax Publications Pty Ltd [27] McColl JA summarised the principles as follows: "[190] The respondents rely upon two lines of authority to support the use in mitigation of damages before the primary judge of the facts they contend were established to support their defences of justification and comment before Harrison J. [191] The first is Pamplin in which the Court of Appeal (Neill LJ, Purchas LJ agreeing) held that in a defamation case, even though a defence of justification or fair comment had failed, nevertheless a defendant was entitled to rely in mitigation of damages on any evidence which was properly before the court and jury, such as evidence which had been primarily directed to the failed defences. [193] The second authority on which the respondents relied is Burstein. In that case May LJ (Slade and Aldous LLJ agreeing) held, after an extensive review of authorities, that a defendant in a defamation suit who has not pleaded justification should be permitted to adduce evidence of "particular facts directly relevant to the context in which a defamatory publication came to be made" ("relevant background context") and which might be "capable of reducing the plaintiff's damages". In May LJ's view, such evidence was admissible because it was "directly relevant to the damage [to reputation] which [the plaintiff] claims has been caused by the defamatory publication".
Keene LJ in Turner v News Group Newspapers Ltd [28] said: "lt has long been established that evidence of specific acts properly admitted on [a plea of justification or fair comment] may ... be taken into account by the jury when assessing damages even though the plea has failed."
Furthermore, I note the comments of Macfarlan JA in Holt v TCN Channel Nine Pty Ltd. [29] "The law is undoubtedly concerned "to prevent. [defamation] trials from becoming roving inquiries into the plaintiff's reputation, character or disposition" (Burstein v Times Newspapers Ltd [2001] 1 WLR 579 at [35]; McBride at [16]) but that policy was not infringed in the present case. The policy is manifested by the rule that, in general, evidence of "particular acts of misconduct on the part of the plaintiff tending to show his character and disposition", as distinct from evidence of general bad reputation, is inadmissible in mitigation of damages (Gatley on Libel and Slander (11th ed 2008, Sweet & Maxwell) at [35.301]). This rule does not apply to evidence, such as led in Burstein, of particular facts which are directly relevant to the contextual background in which a defamatory publication came to be made. Nor is it applicable where, as described in Pamplin and as was the case here, the evidence is properly before the Court on another issue.
Dr O'Neill submitted that mitigation particulars of the kind described in Burstein were not pleaded in any event in this case. He submitted that the defendants are confined to Pamplin particulars. I agree. There are no facts led in support of the failed defences from which I would make findings such as to mitigate damages.

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Judgment (33 paragraphs)

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Cases Cited (34)