Supreme Court of WA|2002-12-10|Before: Steytler J

Roberman v Australian Broadcasting Corporation [2002] WASC 301 (10 December 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ROBERMAN -v- AUSTRALIAN BROADCASTING CORPORATION [2002] WASC 301

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

Various paragraphs of statement of claim struck out

Commonwealth v Temwood Holdings Pty Ltd [2002] WASC 107

Dean v More Than a Morsel Pty Ltd [2002] ACTSC 101

Hoad v Nationwide News Pty Ltd (1998) 19 WAR 468

Mickelberg v 6PR Southern Cross Radio Pty Ltd [2001] WASC 33

1 STEYTLER J: These are defamation proceedings. On 26 March 2002, I struck out a number of paragraphs in the plaintiff's statement of claim and gave him liberty to replead. He has since done so, by way of an amended statement of claim. To this, the defendant raised a number of objections. The plaintiff has consequently sought leave further to amend his statement of claim, in the form of a minute dated 9 October 2002. However, the defendant objects to that minute also, and has applied to have a number of its paragraphs disallowed or struck out. Some of the defendant's objections relate to paragraphs of the statement of claim in the form it took prior to 26 March 2002. These objections could have been, but were not, raised at the time of the earlier application. The defendant consequently needs leave to raise them now.

2 Before coming to the objections, I should say something about the action. I will do so by repeating much of what I said in the course of my previous judgment.

3 The action relates to material which was broadcast by the defendant in the course of its "Four Corners" television programme on 12 February 2001. The programme included a story entitled "Adverse Outcomes", parts of which concerned the plaintiff, a prominent obstetrician and gynaecologist who has, since August 1996, been medical director of the obstetrics unit at King Edward Memorial Hospital. The story, so far as it concerned the plaintiff, centred around a number of incidents.

4 The first was the giving of birth by Mrs Debbie Davie to twins at King Edward Memorial Hospital on an unspecified date. The story recorded that, instead of a caesarean birth, Mrs Davie was "induced" at 8 am "for a natural delivery". The reporter, Jill Colgan, told viewers that the plaintiff, Dr Roberman, saw Mrs Davie only briefly after that. She said that, nearly 12 hours later, there was still no sign of the twins, and a heart monitor showed that one of them, Andrew, had a prolonged slowing of his heartbeat. Dr Roberman is said to have come in at about that time, but to have left again. Ms Colgan reported that, two hours later, "worried staff" telephoned Dr Roberman "but he made no arrangement to come in". At about 11 pm Dr Roberman was said to have been called again and finally to have come to the hospital. Ms Colgan said that, half an hour later, he delivered the twins, one by vacuum extraction and the other with forceps. Andrew was born with brain damage and was said to have speech problems, "occupational therapy problems", delayed development, cerebral palsy and "features of ADHD". Ms Colgan reported that Mrs Davie had taken "her case to a law firm well versed in legal action against King Edward".

5 There was then footage of a lawyer who said that there were about 15 cases outstanding "of which there are about four cerebral palsy cases, ... a half dozen cases involving babies who have died whilst being delivered at King Edward and ... a few other cases involving obstetric complications". Ms Colgan then said that the plaintiff was "cited" in six of the 15 cases, many of which bore "similar hallmarks". The lawyer is then shown as saying:

"If I was trying to say one thing which seems to be recurring, it would be the fact that there seems to be a delay in making a decisive decision about labour once difficulties are encountered.

That seems to be the problem - either not intervening to deliver the baby by caesarean or something else.

So that would be the common thread in the cases that I'm seeing."

6 Next, Ms Colgan mentioned that, just three months after Mrs Davie's case, Dr Roberman was "again accused of taking too long to attend a troubled birth" and that it was once again claimed that there was a breakdown in communications between staff and doctor. She reported that "the outcome" was a severely brain-damaged infant and a multi-million dollar lawsuit against the hospital.

7 The broadcast then dealt with an unidentified 20-year-old woman. Ms Colgan said of her that, in May 1999, she "was full-term and undergoing what's called a trial of scar - attempting to deliver the baby naturally after a previous caesarean".

"After a prolonged labour, it's claimed Dr Roberman left the decision about whether or not to have a caesarean up to the patient, without explaining the risks.

After 27 hours of labour, the previous scar split and the baby tore through the woman's uterus.

Despite an emergency caesarean, the baby suffered massive brain damage and died three weeks later.

That case is also in the hands of lawyers."

9 The next segment of the broadcast was a relatively long one relating to a Mrs Sadie Batten. Mrs Batten was told, after falling pregnant, that she would "need a caesarean, so as not to disturb the cervix further". This was because she had undergone surgery for cervical cancer. The reporter then recounted that, six months into an otherwise uneventful pregnancy, Mrs Batten went into labour. While driving to the hospital her husband, Mr Dean Batten, rang the police to report the emergency. He told a duty officer that his wife was in labour, that she was only 26 weeks pregnant and that she had cancer of the cervix. He said that the duty officer told him that he would let King Edward Memorial Hospital know that he and his wife were on their way there.

10 Ms Colgan said that these events took place on the evening of 15 March. She added that, within days, "the visiting clinical review team was due in to examine the obstetrics unit". She said that there had been intense discussion in recent weeks about adverse outcomes, clinical practices and the lack of supervision of junior doctors and that it was a time when "you might expect the hospital to be on its toes".

11 Ms Colgan said that the factors affecting Mrs Batten all added up to a high-risk birth. The baby was very premature, there were signs that he was in distress and a "very junior doctor" was on duty. Mrs Batten is shown saying that the junior registrar that dealt with her initially was "three months into his first year".

12 Ms Colgan then said that the junior registrar rang the consultant on call, the plaintiff, for advice around 7.30 pm. Mrs Batten, in turn, said that the two midwives who were on duty were asked by her what they were waiting for and that they replied by saying that they were waiting for someone more experienced to come in. Each of Mr and Mrs Batten said that the atmosphere was tense. They said that their baby son, Jack, still had a strong heartbeat but Ms Colgan added that the situation was deteriorating because his heartbeat had slowed and attempts to delay the birth had failed. She said that the experienced midwives were becoming frustrated that no doctor was intervening to deliver the baby.

13 Next, Mr Batten is shown saying that, from 7.30 to 8 pm, the junior registrar "didn't move very much at all" and that it "was as though he was waiting for somebody to turn up".

14 Ms Colgan then reported that, by 8.30 pm, it had become clear to the midwives, at least, that a decision had to be made and one of them urged the registrar to deliver the baby. She said that the junior registrar then rang a senior registrar to come in "only to have her misdiagnose the way the baby was lying in the womb and make a failed attempt at delivery".

15 Ms Colgan said that precious time was slipping away and Mrs Batten said that, by 9 pm, "things had gone too far really".

"What they didn't know was the junior registrar had telephoned Dr Roberman over a period of two hours, not once or twice or three times, but four times, finally asking him on the fourth call explicitly to come in.

When Dr Roberman arrived, it was after 9.45 pm."

17 The segment then goes on to disclose that the baby died not long after his birth. It also shows footage of Mr Batten saying that he and Mrs Batten were told by one of the midwives that she did not think that what had happened on that night was "normal". The reporter, Ms Colgan, said that:

"Alarmed by the case, the hospital lawyer did what had never been done before - reported the death of a baby at King Edward to the State Coroner."

18 Mr Batten also said that nobody wanted to talk to him and Mrs Batten and they approached the Chief Executive Officer of the hospital. He said that, after he and Mrs Batten eventually got to meet the Chief Executive Officer of the hospital, he told them that their son should not have died and advised them to get a lawyer.

"At the coronial inquest into Jack's death, the series of mistakes that night became clearer.

An inexperienced registrar, Dr Michael Gannon, out of his depth.

A senior registrar, Dr Miriam Lee, arriving on the scene and causing confusion with her misdiagnosis of the baby's position.

...

Finally, retired expert obstetrician Dr Frederick Hind insisted Dr Roberman should've attended the hospital sooner, after the second phone call."

20 Immediately thereafter Mr Batten said, in the course of the broadcast:

"The on-call consultant at the time just happened to be the head of the Obstetrics Department who lives three minutes away.

And given the information that he had a very, very inexperienced junior registrar dealing with a mother who's severely premature - 25 weeks, 26 weeks, meconium draining - ... contractions severely going from three minutes ... I would've taken the time to just drive down and make sure that he was OK.

I would've believed that's [sic] duty of care.

I believe in medical circles, anybody with due diligence would have taken the duty of care to drive down to make sure this - his inexperienced junior registrar was okay and not drowning."

21 The broadcast material is said to have given rise to a number of defamatory imputations. I will set out those which are material.

22 In par 6(a), the plaintiff contends that that part of the broadcast which related to Mrs Davie gave rise to defamatory imputations, inter alia, that the plaintiff:

"(i) failed to attend on his patient, Mrs Debbie Davie, whom he knew or should have known was requiring his specialist medical assistance in the delivery of her twins;

(ii) ignored requests from KEMH staff to attend Mrs Davie when she was requiring his specialist medical assistance during labour;

(iii) took too long to make the decision to deliver Mrs Davie's twins by caesarean section;

(iv) caused Mrs Davie's son, Andrew, to suffer serious brain damage ... "

23 In par 6(b), the plaintiff contends that that part of the broadcast which related to the unidentified 20-year-old woman gave rise to defamatory imputations, inter alia, that the plaintiff:

"(i) allowed his pregnant patient, during a long labour, to decide to proceed with a natural delivery without explaining to her the risk to her or her baby arising from her previous caesarean delivery;

(ii) caused his patient to suffer serious injury to her uterus."

24 In par 6(c), the plaintiff contends that that part of the broadcast which related to Mrs Batten gave rise to defamatory imputations, inter alia, that the plaintiff:

"(ii) recklessly disregarded Mrs Batten and her unborn baby's interests by continually failing to respond to numerous phone calls advising him of serious and endangering complications in the birth of Mrs Batten's baby, such delay resulting in a fatal injury to Mrs Batten's baby arising from a necessary emergency caesarean section which might have been avoided had the plaintiff promptly responded;

Particulars of Complications

The baby's heartbeat slowing, attempts to delay birth having failed, a senior registrar having attended at the request of the junior registrar but having misdiagnosed the way the baby was lying in the womb and the senior registrar having failed in an attempt to deliver.

...

(iv) acted unprofessionally in failing to take timely responsibility for attending upon the birth of Mrs Batten's baby to the point where Mrs Batten required emergency caesarean [sic] to be performed, in circumstances where the ultimate outcome of Mrs Batten's complicated delivery was that Mrs Batten's baby died."

25 In par 7, the plaintiff sets out a further part of the broadcast material touching upon problems experienced in the obstetrics unit at the hospital. Ms Colgan there said that, 18 months after the events involving Mrs Batten, and despite the concerns of senior staff, the plaintiff was made head of obstetrics at the hospital. She went on to say that, in September 1998, five months before the new chief executive officer, Mr Michael Moodie, arrived, the plaintiff himself acknowledged in an internal memorandum that there were major problems in the obstetrics unit. A "voiceover" went on to say, seemingly quoting from the plaintiff's memorandum:

"Morale is currently poor within the obstetrics service due to the enormous pressure of work.

The rapid throughput of patients does not allow adequate care and standards have fallen.

Significant medico-legal problems have been encountered in the recent past.

The potential payout is huge.

The training of our registrars has reached crisis point.

They have much less expertise when they reach their senior levels of training, compared with registrars in past years."

26 There was then some discussion with Jennifer Beck, an in-house lawyer appointed by the hospital "to deal with the growing number of legal issues". After some discussion of Ms Beck's responsibilities, Ms Colgan said:

"Nine months before the Battens came into King Edward, Jennifer Beck wrote an emotive letter, claiming the standard of care in the Labour Ward and Delivery Suite had significant ethical, moral, financial and legal implications for the hospital.

In subheadings such as 'Dead Baby' she listed five cases of death or injury to infants.

She cited poor decision-making by Doctor Brian Roberman, a lack of supervision of junior doctors, inadequate after-hours care and an institutionalised malaise that had led to a reluctance to change."

"Within days of Jack Batten's death, the visiting clinical review team had finished its investigation and found the obstetrics unit seriously flawed."

28 The matters pleaded in par 7 are alleged, in par 8, to have given rise to defamatory imputations to the effect that the plaintiff:

"(a) was responsible for the decline in standards of the Labour Ward and Delivery Suite at KEMH due to the lack of supervision of young doctors;

(b) by reason of his poor decision making as head of the obstetrics unit at KEMH was the cause of the decline in standards in the obstetrics unit which had led to the death or injury of 5 babies."

29 In par 9, the plaintiff sets out an extract from the broadcast touching, inter alia, upon the Coroner's findings in respect of the death of Mrs Batten's baby. Ms Colgan there said the following, in the course of commenting on the Coroner's findings:

"But so conflicting was some of the evidence between Dr Roberman and the junior registrar, the Coroner believed either Dr Roberman had lied in court or the registrar had grossly misunderstood his senior doctor.

Either way, the Coroner held Dr Roberman responsible."

30 In par 10(a), the plaintiff pleads that these words, in their context, gave rise to the defamatory imputation that "there are reasonable grounds to suspect the Plaintiff lied in the Coroner's Court".

31 The plaintiff has also pleaded, in par 9(c) of the minute, inter alia that, during the course of the broadcast, Mrs Batten said that she and her husband had "hoped it might have gone to the medical board" for somebody to be "made accountable" and that nobody had "been made accountable for what happened on that night". In par 10(b)(i) the plaintiff pleads that this, in its context, gave rise to a defamatory imputation that:

"the Plaintiff's neglectful treatment of Mrs Batten warranted his being investigated by the Medical Board, such investigation being warranted because there was a reasonable suspicion that the plaintiff's negligent treatment had caused the death of Mrs Batten's baby."

32 Finally, in par 11 of the statement of claim, the plaintiff pleads that the whole of what was broadcast gave rise to defamatory imputations, inter alia, that the plaintiff:

"(a) caused the problems experienced within KEMH's obstetrics unit by his professional negligence and managerial incompetence;

...

(c) is an incompetent obstetrician;

...

(e) has caused unnecessary serious injury to, and the death of, babies delivered under his supervision and care".

33 All of these imputations have been objected to by the defendant. Those appearing in pars 6(c)(ii), 6(c)(iv) and 10(b)(i) of the minute, to which I shall refer as "the new imputations", were pleaded after the earlier application was decided. The balance of the imputations, to which I shall refer as "the old imputations", appeared in the pleading as it stood at the time of the earlier hearing, but were not then objected to.

34 I will deal with the new imputations first. However, before doing so, I should mention some of the well-accepted principles which are applicable to an application of this kind.

35 It must, firstly, be borne in mind that imputations will only be struck out, at this early stage of the proceedings, if they are untenable or manifestly groundless (Taylor v Jecks (1993) 10 WAR 309 at 319; Smith v Littlemore (1996) 15 WAR 289 at 294 - 5 and Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 446 - 7).

36 Next, it is well-established that a pleaded imputation must express the precise act or condition asserted of or attributed to the plaintiff or with which the plaintiff is charged: Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 663 at 687 and Taylor v Jecks, above, at 319 - 320. Imputations which are repetitive will also be struck out. Imputations of that kind are necessarily embarrassing. A reasonable test of distinctness is that of whether the justification of each imputation would be substantially different: Lewis v Daily Telegraph Ltd [1964] AC 234 at 282.

37 In deciding whether or not an imputation is capable of arising from the words complained of, the issue is essentially that of whether a reasonable person, in the sense of an ordinary reasonable viewer of fair, average intelligence, who does not live in an ivory tower, who is not inhibited by strict rules of construction and who is not unusually suspicious or naive or avid for scandal, would understand the matter complained of in the manner alleged. (See Smith v Littlemore, above, at 294 and 295; Slatyer v Daily Telegraph Newspaper Co Ltd [1908] HCA 22; (1908) 6 CLR 1 at 7 and Lewis v Daily Telegraph Ltd, above, at 258 - 259.) In considering what might be understood by such a person, it must be borne in mind that the ordinary and natural meaning of words may be either the literal meaning or an implied or an inferred or an indirect meaning, not requiring the support of extrinsic facts: Capital & Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741, 745 and Jones v Skelton (1963) 1 WLR 1362 1370. However, it must not amount to a judgment or conclusion resulting from the viewer's own beliefs or prejudices: Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 at 301.

38 That brings me to the imputation pleaded in par 6(c)(ii). The defendant raises two objections. The first of these is that the imputation is incapable of arising from the broadcast.

39 I was referred, in this respect, to what I had said in my earlier reasons given in respect of the imputation then pleaded in par 6(c)(viii) of the statement of claim, being one to the effect that the plaintiff "failed to adequately supervise the birth of Mrs Batten's baby which caused the death of her baby". I said, in par 37, the following:

"However, counsel for the defendant also contended that the broadcast material is incapable of giving rise to the imputation that the lack of adequate supervision caused the death of the baby. He referred, in support of his submission, to part of the broadcast material in which, as I shall later explain, the reporter said that the Coroner found that the baby died of natural causes because, 'faced with evidence that Jack was so premature and gave such signs of foetal distress', it followed that 'a caesarean any earlier on ... [Mrs Batten] might not have saved him anyway'. Although, as I shall also mention below, the reporter added that, given 'the litany of mistakes the Coroner found, his cautious verdict devastated Sadie and Dean Batten', it seems to me that an imputation that the plaintiff's lack of supervision did, in fact, cause the death of the baby is not arguably capable of arising. At best, it seems to me, the imputation which arises is that it might have done so."

40 Counsel for the defendant contends that, for those reasons, it is not open to the plaintiff to plead that the plaintiff's alleged delay resulted in a fatal injury to Mrs Batten's baby arising from a necessary emergency caesarean section which might otherwise have been avoided.

41 Also, counsel for the defendant contended that there is nothing in the broadcast material which is capable of giving rise to the imputation that the plaintiff had in fact been advised of the complications which have been particularised. He referred, in this respect, to the fact that the four telephone calls which were said to have been made to the plaintiff were made over a period of two hours and that one or more of the complications referred to may have occurred after one or more of the first three telephone calls. In particular, counsel for the defendant submitted, there was nothing to suggest when, if at all, the junior registrar informed the plaintiff of the failed attempt at delivery by the senior registrar.

42 Counsel for the plaintiff contended that the plea, as it now stands, is materially different from that the subject of my previous observations and that there is nothing in those observations which would preclude it from being maintained. Also, while acknowledging the report of the Coroner's reasons for finding that the baby died of natural causes, counsel for the plaintiff stressed that the broadcast had also said that the chief executive officer of the hospital, Mr Moody, had told Mr and Mrs Batten that their son "shouldn't have died because the hospital is designed to save children like that". He referred also to a part of the report in which it was said that a retired expert obstetrician, Dr Frederick Hind, insisted (presumably at the coronial inquest) that the plaintiff should have attended the hospital sooner, after the second phone call.

43 It seems to me that, when regard is had to the whole of the broadcast, there are problems with the imputation as it is now formulated. The imputation is expressly to the effect that the delay resulted in the fatal injury. I am unable to accept that an imputation in such stark terms is capable of being found to have arisen in circumstances in which the broadcast records that the Coroner, after hearing evidence, including that of Dr Hind, said that the evidence disclosed that the baby was so premature and had given such signs of foetal distress that a caesarean any earlier might not have saved him anyway. In these circumstances, it seems to me that the only imputation which is capable of arising in this respect is that the plaintiff's delay might have resulted in a fatal injury to Mrs Batten's baby arising from the matters referred to. I should add, in any event, that there seems to me to be some ambiguity inherent in an imputation which pleads that the delay resulted in a fatal injury as a result of an emergency caesarean section which might have been avoided had there been a prompt response.

44 It also seems to me that the imputation, as formulated, is to the effect that the plaintiff was advised, in each of the "numerous phone calls" of the serious and endangering complications which have been particularised. That could plainly not have been so in circumstances in which it was said that the junior registrar had rung the plaintiff for advice at around 7.50 pm and also that the junior registrar had rung a senior registrar to come in after 8.30 pm. Self-evidently, that event, and the subsequent misdiagnosis and failed attempt to deliver the baby, could only have happened after 8.30 pm, leaving open the possibility that only one further telephone call was made to the plaintiff thereafter.

45 I would consequently disallow this amendment, giving leave to the plaintiff to reformulate it.

46 Before leaving this imputation I should mention, for the sake of completeness, that the defendant contended that it was embarrassing in its reference to a continual failure to respond to numerous phone calls, the contention being, in effect, that either the word "continually" or the word "numerous" should be deleted. While it seems to me that the word "continually" is probably unnecessary and, indeed, that the number of telephone calls could be specifically identified, I would not have been prepared to disallow the amendment on that account alone.

47 As to imputation 6(c)(iv), counsel for the defendant contends that its effect, again, is that the alleged failure to take timely responsibility for attending upon the birth of the baby resulted in the baby's death and that this imputation is not open, for the reasons which have earlier been canvassed.

48 It seems to me that that contention is rightly made. If the imputation is not that the failure to take timely responsibility resulted, ultimately, in the death of the baby, then it is difficult to know what purpose was intended to be served by the words "in circumstances where the ultimate outcome of Mrs Batten's complicated delivery was that Mrs Batten's baby died".

49 I would consequently disallow this amendment upon the ground that it is manifestly untenable when regard is had to the whole of the broadcast material.

50 Paragraph 10(b)(i) is also objected to on the ground that it is not reasonably capable of arising. The defendant's counsel contends that the imputation is one to the effect that the plaintiff's conduct caused the death of the baby and that, for reasons earlier canvassed, this is not open. I do not accept this submission. The plea is that an investigation was warranted because "there was a reasonable suspicion" that the plaintiff's negligence had caused the death of the baby. That, in my opinion, is materially different from a plea to the effect that the negligence did, in fact, cause the death of the baby.

51 However, counsel for the defendant also submitted that, having regard for the report of the Coroner's finding, it was plain that an earlier caesarean might not have saved the baby in any event, with the consequence that there was no scope for any reasonable suspicion that the plaintiff's negligence had caused the death of the baby. However, it seems to me that the imputation cannot be described as manifestly untenable when regard is had to the whole of what was broadcast. Mr and Mrs Batten are pleaded to have said that they were "grossly disappointed with the Coroner's decision" and Mr Batten is reported as having said that he and Mrs Batten "feel the decision has just put other mothers and children at risk ...". When these reported comments are taken together with the report of the Coroner's finding to the effect that Dr Roberman "needed to come to the hospital after the second phone call" and his criticism of "the confusion, poor communication, errors and delays", it seems to me that the pleaded imputation is tenable.

52 Counsel for the defendant also submitted that the imputation was embarrassing in form in that it failed to distil the defamatory sting and rolled up several notions. The notions which, he submitted, were rolled up in this way were that to the effect that the plaintiff's treatment of Mrs Batten was "neglectful", the second being that this warranted his investigation by the Medical Board, the third being that there was a reasonable suspicion that the plaintiff's neglectful treatment had caused the death of the baby and the fourth being that the plaintiff should be investigated because of the existence of that reasonable suspicion. All of these matters being rolled together, including the two suggested reasons for the investigation, were said to give rise to embarrassment.

53 The imputation is, with respect, a little wordier than it might be. In effect, it is one to the effect that the plaintiff's neglectful treatment of Mrs Batten warranted his being investigated by the Medical Board because there was a reasonable suspicion that it had caused the death of Mrs Batten's baby. When understood in this way, and I do not think that it can sensibly be understood in any other way, I am not persuaded that the plea gives rise to any embarrassment sufficient to warrant it being disallowed.

54 It was also contended, on behalf of the defendant, that, to the extent that the imputation raised the question of neglect, it was repetitive of other imputations. When read in the way in which I have suggested it should be read, it seems to me that there is no repetition such as should give rise to any embarrassment.

55 There remain those imputations which are now objected to, but which were pleaded at the time of the last hearing but not then objected to.

56 I have previously said, in Gardiner v Ray [1999] WASC 140 at par [33], that applications to strike out pleadings are overused. I there said that they are always productive of delay and expense, sometimes substantially so, and often produce no sufficient countervailing benefit, particularly when they are brought at a late stage of the proceedings, and that it was because of considerations of this kind that the time limit fixed by O 20 r 19 of the Rules of the Supreme Court was introduced. The purpose underlying that time limit is that of ensuring that, if an application of this kind in brought, it should be brought promptly so that it might at once be disposed of and the action continued without further interruption. I also there said (ibid) that the time limit is one to which more than lip-service should be paid and that those who wish to bring an application of this kind should consider, within the period of 21 days fixed for that purpose, what benefit will be derived by bringing the application and then weigh against that the inevitable consequences of delay and expense and, if the application is then thought to be justified, that it should be filed promptly. (See also Moir v Flint [2002] WASC 48 at [20] per McLure J.) In Robinson v Adshead (No 2) (1995) 12 WAR 577 at 581, Master Adams was not prepared to grant an extension of time even in circumstances in which the application to strike out was brought bona fide and could be assumed to have arguable merit, although he added (ibid) that he was not persuaded that "the evident merit" of the defendant's argument was sufficient to justify the extension of time that would be required.

57 In this case there has been an extensive delay of around 12 months, essentially explained only by reference to the fact that there has been a change of counsel. However, the statement of claim has still to be finalised and no defence has yet been filed. That being so, I am prepared to consider the objections, albeit with some reluctance, in order to see whether or not there are problems with the pleading which are likely to be productive of serious problems in, or leading up to, the trial. To the extent that there are such problems, it would, I think, be preferable for them to be dealt with now, notwithstanding the delay. However, where the objections raise matters which are unlikely to give rise to any real prejudice if they are not dealt with now, I do not propose to countenance them.

58 The first of these objections relates to the imputation pleaded in par 6(a)(i). Counsel for the defendant contends that this imputation is incapable of arising because it is plain that the plaintiff did, in the end, attend on Mrs Davie.

59 The plaintiff's response is that the pleaded imputation is plainly intended to be one to the effect that the plaintiff failed to attend on Mrs Davie when required. If that is so, it would, in my opinion, have been preferable for the plaintiff to have pleaded this expressly. That said, I am not persuaded that a failure, now, to strike out this paragraph would give rise to any real prejudice to the defendant and I do not propose to strike it out. It is, of course, open to the plaintiff to amend the paragraph should he consider it advisable to do so.

60 The imputation pleaded in par 6(a)(ii) is also said to be incapable of arising. The defendant contends that there is nothing in the broadcast material which suggests that the plaintiff "ignored requests" from the hospital staff to attend Mrs Davie. Rather, the broadcast material is said to have disclosed that the plaintiff "was not answering the phone or his pager", although it also discloses that, at 9.30 pm, "worried staff" had telephoned the plaintiff "but he made no arrangement to come in". Once again, while the plea might overstate the effect of the broadcast, I am not persuaded that a failure to strike it out will give rise to any real prejudice to the defendant.

61 The defendant also complained, in respect of this paragraph, that the imputation was not sufficiently distinct from that pleaded in par 6(a)(i). Once again, that complaint is not such as to justify the striking out of the plea at this late stage.

62 So far as the imputation pleaded in par 6(a)(iii) is concerned, counsel for the plaintiff was prepared to meet complaints which were made on behalf of the defendant by the deletion of the words "by caesarean section". In those circumstances it is unnecessary to give any further consideration to that paragraph.

63 The imputation pleaded in par 6(a)(iv) is said to be ambiguous and embarrassing. The problem was said to centre around the use of the word "caused". Counsel for the defendant referred, in this respect, to Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158. There, the Court had to deal with two imputations in the following terms:

"(g) The plaintiff caused the rape and murder of Anita Cobby by Lesley Murphy in that he was one of a number of men who had anal intercourse with Murphy when he was under thirteen years of age which acts caused Murphy such grave psychiatric damage that he raped and murdered Ms Cobby.

(h) The plaintiff caused the murders of two men by Andrew Tregurtha in that he was one of a number of men who subjected Tregurtha to inhuman and degrading acts of physical sexual abuse when he was a child which acts caused Tregurtha such grave psychiatric damage that he committed the two murders."

64 Hunt CJ at CL, with whom Mason P and Handley JA agreed, said (pages 162 - 163):

"The form in which each of the two imputations in issue in this appeal has been pleaded was (we were informed) designed to overcome any imprecision of the word 'caused' - so that, if the jury accept that the ordinary reasonable viewer of the telecast would have interpreted the matter complained of in the sense of the words in each imputation following the expression 'in that', they would also accept that the matter complained of conveyed the imputation that the plaintiff 'caused' the rape and murder of Anita Cobby by Lesley Murphy and/or the murder of two men by Andrew Tregurtha. Such a method of pleading was accepted by this Court in Drummoyne Municipal Council v Australian Broadcasting Corporation [(1990) 21 NSWLR 135], provided that it is successful in making clear the meaning for which the plaintiff contends (at 138 - 140, 154 - 155).

It was made apparent to counsel for the plaintiff during the hearing of the appeal in the present case that this form of pleading had not been successful in identifying the sense in which the word 'caused' was used in these two imputations. 'Caused' is what has become known as a 'weasel' word, in that, such is its convenient ambiguity, no-one will ever know the way in which it is being used or understood: E C Brewer, I H Evans, Brewer's Dictionary of Phrase and Fable (1989), London, Cassell; 'weasel word' is an expression of United States origin, but it is very expressive when applied to a word which has both a more serious and a less serious meaning: see also The Grand Panjandrim, J N Hook (1991, McMillan) (at 151). Here, it could mean the immediate cause (or the last link in the chain of causation) or it could mean some preceding link without which the consequences asserted by the plaintiff could not have occurred (the causa causans or the causa sine qua non). Such ambiguity would necessarily be destructive of a trial involving such emotive issues as this one will involve."

65 It does seem to me that the word "cause" in par 6(a)(iv) introduces a material ambiguity in that no attempt has been made to say just how it is that the plaintiff is said to have caused Andrew Davie to have suffered serious brain damage. It is unclear whether he is said to have been the immediate cause of that damage or whether he was responsible for some preceding link, without which that damage would not have occurred. In my opinion, this ambiguity does give rise to a real prejudice and the imputation should be struck out.

66 As to par 6(b)(i), counsel for the plaintiff has volunteered to amend the pleaded imputation by deleting the words "during a long labour". This amendment is sufficient to meet the defendant's objection. It is consequently unnecessary to consider that paragraph further.

67 The imputation pleaded in par 6(b)(ii) is said to be ambiguous and embarrassing. Once again, this complaint arises out of the use of the word "caused". The position in respect of this imputation seems to me to be no different to that in respect of par 6(a)(iv) and, for similar reasons, it seems to me that the paragraph should be struck out.

68 The imputation pleaded in par 8(a) is said not to be capable of arising. However, counsel for the plaintiff indicated a preparedness to delete the words "due to the lack of supervision of young doctors" and this, it seems, is sufficient to overcome the defendant's principal objection. While counsel for the defendant did submit that the imputation, in order to be accurate, even with the deletion, should have included the word "partly" before the word "responsible", I am not persuaded that any defect in that respect is sufficient to give rise to any real prejudice.

69 The imputation pleaded in par 8(b) is said not to be capable of arising from the matters pleaded in par 7. Counsel for the defendant submitted that the plaintiff's poor decision-making was only one of four causes seemingly cited by Ms Beck for the deaths or injuries to which she referred, the others being a lack of supervision of junior doctors, inadequate after-hours care and an institutionalised malaise that had led to a reluctance to change. When regard is had to all of the matters pleaded in par 7, including the plaintiff's own memorandum in which he refers to falling standards as a consequence of the "rapid through-put of patients", it seems to me to be manifestly untenable to allege that an imputation arises that the plaintiff's poor decision-making was "the cause" of the decline in standards. Because the plea may raise significant evidential issues, in its present form, it seems to me that there would be real prejudice to the defendant if I was to allow it to stand until the trial. I consequently propose to strike it out.

70 I should add that it does seem to me to be at least arguable, notwithstanding submissions to the contrary which were made on behalf of the defendant, that the words complained of, and in particular the contents of Ms Beck's letter, do give rise to an imputation that the decline in standards had led to five cases of death or injury to infants.

71 The imputation pleaded in par 10(a) is said to be incapable of arising from the words complained of. In a nutshell, counsel for the defendant contended that an imputation that there are reasonable grounds to suspect that the plaintiff had lied in the Coroner's Court could not arise from a statement to the effect that the Coroner believed that the plaintiff had lied or that the registrar had grossly misunderstood him. If there is any merit in this submission (and I am inclined to doubt that there is), I am not persuaded that a failure to strike out the imputation at this stage will give rise to any real prejudice to the defendant. I consequently do not propose to countenance the objection at this late stage.

72 Next, the defendant contends that the imputation pleaded in par 11(a) is embarrassing. The use of the word "caused" is again said to give rise to ambiguity and the "problems" which are said to have been experienced within the obstetric unit as a consequence of the plaintiff's professional negligence and managerial incompetence are not identified. While there is less difficulty, in my opinion, with the use of the word "caused" in this context than in the context earlier referred to, it does seem to me that the pleaded imputation, as a whole, lacks the requisite specificity and, if allowed to stand, would lead to problems for the defendant if it should seek to raise a plea of justification. It consequently seems to me that the paragraph should be struck out.

73 The imputation pleaded in par 11(c) is said not to be capable of arising. I am not persuaded either that the imputation is manifestly untenable having regard to the whole of what is pleaded to have been broadcast or, if I was to be wrong in that view, that it would give rise to any substantial prejudice if it is not struck out at this late stage. I consequently do not propose to strike it out.

74 Finally, counsel for the defendant contends that the imputation pleaded in par 11(e) is embarrassing in that it fails to identify the babies whose death has been caused by the plaintiff or to whom he has caused unnecessary serious injury, fails to specify in what respect or respects the serious injury is said to have been "unnecessary" and fails to specify how the plaintiff is said to have caused that "unnecessary serious injury" or the death of babies delivered under his supervision and care.

75 It seems to me that the pleaded imputation is deficient in all of these respects and that the deficiencies are such as to cause real prejudice to the defendant. Paragraph 11(e) should consequently be struck out.

76 It follows that pars 6(a)(iv), 6(b)(ii), 6(c)(ii), 6(c)(iv), 8(b), 11(a) and 11(e) of the minute should be struck out or disallowed, as the case may be, with liberty to replead if that should be considered necessary.

Roberman v Australian Broadcasting Corporation [2002] WASC 301

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (101 paragraphs)

Roberman v Australian Broadcasting Corporation [2002] WASC 301 (10 December 2002)

Parties

Cases Cited (10)