Smith's Newspapers Limited v Becker [1932] HCA 39

Smith's Newspapers Limited v Becker [1932] HCA 39 - HCA 1932 case summary — Zoe

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by the appellant were proved true except the statements that doctors would not consult with him and that scores of people had died an agonizing death from the use of atophan. The subject matter was one of public interest, and a fair-minded man might reasonably hold such an opinion. That is all the appellants have to prove. Public health is a matter of public interest, and so is the conduct of persons who practise medicine (Seymour v. Butterworth (1); Dakhyl v. Labouchere (2) ). What is a matter of public interest is the system of medication in the hands of an unregistered medical practitioner. It is not a matter of public interest as to the relation between a medical man and any individual patient. This was a proper occasion of comment. It is not necessary to justify a matter which is a subject of fair comment. The true test of whether the comment is fair is whether the comment could have been made by a reasonable man whether prejudiced or not (Sutherland v. Stopes (3)). The question of public interest is independent of the question of fair comment (Hunt v. Star Newspaper Co. (4); Sutherland v. Stopes (5) ). The critical fact to the commentator is that this man has been declared by the Medical Board unfit for registration because of his lack of qualifications, The respondent could not have been granted registration if there had been reciprocity between Germany and South Australia so long as his qualifications were not sufficiently high. Speight v. Syme (6) shows that the writer must know the facts about which he is writing, but it is not necessary to know the evidence by which they are to be proved. There evidence to show that the genesis of the article was a complaint by a qualified medical practitioner. As to whether atophan is a dangerous drug

the appellants do not have to show that atophan had caused agonizing deaths in scores of cases. That was a comment on the properties of atophan. The appellants justified the effect of the administration of atophan. The danger lies in the inability to determine the patient's susceptibility to the drug. The article complained of sets out to deal with the danger of the use of atophan by an unregistered person, and the official negligence

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of the statute, some matters which I need not particularize with regard to the respondent's practice which I regard with disfavour. These, however, are not very heinous. On the other hand, the imputations upon the respondent - an educated foreigner belonging in his own country to a learned profession - were calculated to hold him up to infamy as an inhuman or reckless exploiter of the sick, charging him at least with extensive manslaughter or worse. In these circumstances the first question to which I have addressed my mind is whether the trial Judge, upon whom the responsibility fell of estimating the damages, took into account all the considerations on each side which should guide his mind and excluded those elements which should be disallowed. After rereading his judgment more than once, I have come to the conclusion that he did perform the delicate task which the circumstances of this case required, without deviating from the path which the illegality of some of the respondent's conduct and his lack of status made so difficult. In this state of things I ask myself whether I, as an appellate Judge who has neither seen nor heard the respondent or any other witness and has nothing but the printed page to guide me in estimating the insult and injury to the respondent and the tc of the appellant, should embark upon a reconsideration of the quantum of damages to be awarded. No doubt the responsibility is placed upon us of determining the appeal by way of rehearing. But the estimation of damages in an action for libel does not depend upon the use of the logical faculties, and arithmetical and legal competence affords but small aid in performing the task which in most cases is entrusted to a jury, whose varying conclusions are seldom interfered with. The assess- ment must be entrusted to the arbitrium boni viri, and when that judgment has been exercised upon correct principles, with a full understanding of the relevant circumstances, I think we should not interfere unless his conclusion appears to us to be unreasonable. Tam quite unable to say that the sum of £5,000, although admittedly large, is unreasonable, and, even if on the materials available to me IT would assess the damages at half that sum, I should feel unable to say that one who, having the greater advantages possessed by a trial Judge doubled my estimate, was wrong. No doubt the findings of the Judge do not enjoy the same protection from the

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mitigated by the imposition upon them of some restraints and disabilities. Fees or remuneration for medical attendance cannot be recovered at law except by registered practitioners. They alone may give death certificates upon which burials can take place without a coroner's order. Among other things, the Medical Practitioners Act 1919 (sec. 35) forbids an unregistered person, by any means or in any way whatsoever, to advertise or hold himself out as being, or pretend to be, a doctor of medicine, master of surgery, doctor or other medical or surgical practitioner. The respondent disregarded this prohibition. Upon his plate, in the telephone book, and in press notices and otherwise, he continually used descriptions which were a complete violation of the statute. He continued this course with impunity for nearly two years, during which he conducted an increasing practice. His methods of treat- ment were those taught in Germany, and differed sometimes from those practised here ; but for the most part he performed the work of an ordinary general practitioner. In some respects he departed from our standards of professional propriety. In order to avoid the use by others of his prescriptions and remedies, he adopted a code in prescribing and directed his patients to one chemist who understood its meaning. He composed in German notifications or advertise- ments for insertion in the press which, to our notions, appear a little florid. Further, in addition to adopting a title and description in defiance of the law, he did not hesitate to represent by the letters "M.D. MS." the degree of Doctor of Medicine which his own historic University had conferred upon him, when, as he says, he was informed that the studies and training by which the single German degree were obtained would have entitled him here to two degrees. Another matter at which any refined professional sensibility must have been offended was the necessity, that every death among his patients imposed upon him, of reporting to the police and procuring from a magistrate a coronial burial order with as much privacy as possible.

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phenyl-quinolin-carboxylic acid, has been found of service in the elimination of uric acid and has been greatly employed in cases of gout and sometimes for the relief of pain arising from other conditions. Its use originated in Germany in 1908, and became general. But in 1922 some doubts were started as to the safety of the drug because it was suspected of having caused some cases of acute yellow jaundice. These doubts were renewed in 1926, and, as a result of observation and experience, a number of papers have been contributed to the medical journals of Great Britain and America supporting the conclusion that the administration of the drug is attended with some tisk of the patient contracting that complaint, either because of a pre-existing hepatic condition, or because of a too great or prolonged use of the drug, or because of some natural idiosyncrasy. These cautions from British and American medical authorities do not appear to have been circulated in France until 1928; and it is not at all clear when and to what extent they were communicated to the profession in Germany, where the remedy seems to have been touch used. The respondent was, probably, quite unaware that any medical opinion existed that some risk was involved in using the drug, which, in South Australia, was on sale in tablet form at chemists and other shops. He prescribed the preparation very freely among his patients, and he did not adopt some of the precau- tions which are now recommended before doing so. But, notwith- standing the appellants' efforts to find evidence to the contrary, his administration of the drug appears to have proved injurious to no one, although one patient who began to take it did immediately show symptoms of constitutional intolerance for it. The numbers of the Medical Journal of Australia for 27th April and Ist June 1929 contained a discussion of evil consequences ascribed to atophan and cinchophen preparations, whereupon there appeared in a Sydney daily paper some articles upon the risks to which the sale of the drug exposed the public. These articles came into the hands of a medical man who practised in the same town as the respondent, and he at once visited the office of the appellants, who published newspapers in Sydney, one of which, a weekly, circulated in South Australia, The appellants, as the result of this visit, proceeded to

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or the pursuit of the calling by him is unlawful. It follows also that if a part of the matter complained of is defamatory only because it reflects upon the plaintiff in his vocation, or if the plaintiff is engaged in any activity or transaction which otherwise would be taken into account for the purpose of assessing damages, then if the trade, business, vocation, activity, or transaction is unlawful it must be excluded from consideration. Accordingly, in an action of 'slander the plaintiff will fail if it appear that the words concern him in an illegal trade and otherwise are not actionable without special damage, or that the special damage consists in the loss of some benefit sought or obtained by an unlawful pursuit or transaction, and in an action for libel he cannot rely upon the exercise of an unlawful -ealling either upon the issue of libel or no libel or as a matter entitling him to special damage or affecting general damages. The cases which establish these positions are perhaps in some respects not very satisfactory, but they are in accord with principle. They were all decided in the first half of last century. They are: Morris v. Langdale (1) (slander spoken of a stock-jobber and causing damage consisting of loss of contracts, held not actionable because non constat that both his calling and his contracts were not unlawful under Sir John Barnard's Act); Hunt v. Bell (2) (libel reflecting upon the plaintiff as an exhibitor of unlawful pugilism, held not actionable) ; Jones v. Stevens (3) (libel upon an attorney as such held actionable, although he had not renewed his certificate, because he nevertheless -continued to be an attorney capable of carrying on his profession) ; Yrisarri v. Clement (4) (libel upon the conduct of an agent of a foreign belligerent Government in connection with a loan, held actionable, although the raising of the loan was illegal, because the 'libel imputed the commission of a moral fraud " ultra" the illegal transaction) ; Long v. Chubb (5) (libel upon a medical practitioner both in his professional and private character; upon it appearing 'that he was not an authorized practitioner recognized by law, Tindal L.C.J. directed the jury that if they thought the libel spoke

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be as likely or as unlikely to occur whether he did or did not violate the Medical Practitioners Act 1919 in the course of his practice in the treatment of diseases. Accordingly, the unlawful conduct of the respondent does not afford a defence to the appellants. It goes to damages only. But it affects damages in two ways. It operates positively to exclude compensation for loss, whether actual or conjectural, which depends upon the respondent's unlawful conduct or upon a reputation or " good will" acquired by holding himself out as a doctor. It also weakens the respondent's claim to be considered as the blameless victim of a gratuitous attack. Murray CJ., in dealing with the niceties of discrimination which are thus required, said, after quoting from Jones v. Stevens (1), that he did not think the respondent was deprived of the right of suing for a libel reflecting on his attainments by the imputation that he was a German quack. When he came to deal with damages, he said (2) : - " The imputations made against the plaintiff affect him not only in his character as a German physician and surgeon who has received his training in Germany, but in his private character also, for they reflect on his honour by suggesting pretence and deception, and on his humanity by suggesting callousness in advising ignorant people to take a drug which he knew might possibly cause their deaths. The damages to be awarded in such a case must be heavy. The defendants have no real interest in the Tanunda district of this State. They belong to Sydney, and are merely concerned to make a profit by the sale of their newspaper. Special damages for the injury to his practice in South Australia are not, and, possibly, could not, be lawfully claimed by the plaintiff, but the libel has gone forth to the world, and may have caused irreparable injury to his professional and private character. The judgment of this Court which, in a sense, is the antidote, may not reach the knowledge of all who have been or will be affected by the bane. I shall, of course, bear in mind that the plaintiff has been violating see. 35 of the Medical Practitioners Act."

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But I have the misfortune to be at variance with the learned Chief Justice who tried the action as to the sum which the respondent should recover by way of damages. His Honor awarded £5,000. In estimating the damages, (1) should be excluded, save in so far as it may be held to the prejudice of the respondent that he committed breaches of the Medical Practitioners Act. As to (2) - this may be neglected in computing the amount of damages: it goes only to present and future earnings by the exercise of a calling, which the respondent is permitted to carry on, but for which he is not allowed to recover any remuneration in view of his character as an unregistered practitioner. Thus, in effect, (3) alone remains for consideration. In considering the amount of damages which the respondent should recover, I do not consciously depart from the view which the Chief Justice took of the outrageous character of the libel, and the deserts of the respondent. At the same time I am not satisfied that his Honor did not take into consideration some matters which would have been relevant in estimating the damages the respondent should be awarded, if his right to sue in respect of the statements touching him in the way of his calling had not been affected by the operation of the Medical Practitioners Act. His Honor said (1): " Special damages for the injury to his practice in South Australia are not, and, possibly, could not be lawfully, claimed by the plaintiff, but the libel has gone forth to the world, and may have caused irreparable injury to his professional and private character." It is true that the Chief Justice also said : "T shall, of course, bear in mind that the plaintiff has been violating sec. 35 of the Medical Practitioners Act." The reference to the respondent's professional character may be explained as a reference to him as a man who had been educated and trained for a profession. rather than to the exercise of his calling. But the very large sum of £5,000 appears to me to be in excess of any sum at which a sound discretion would arrive, if it did not take into consideration elements which, by operation of the statute, were excluded from the action and in respect of which the respondent should not be compensated. Acting on the general view of the case adopted by the learned Chief Justice in other respects, I think that the amount of damages

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Judgment (170 paragraphs)