Nixon v Slater & Gordon [2000] FCA 531

IAN NIXON AND GREGORY ELLIS v SLATER & GORDON

VG 468 OF 1999

JUDGE:          MERKEL J

DATE:            28 APRIL 2000

PLACE:          MELBOURNE

SUMMARY

I propose to briefly summarise the reasons set out in my judgment but, in doing so, I emphasise that the reasons for my decision are those set out in my judgment and not in this summary.

The Court has found that the booklet published and distributed by Slater & Gordon, which uses a photograph of the applicants conducting surgery on its cover, carries the imputation that, for reasonable cause or upon reasonable grounds, Slater & Gordon is involved in a medical malpractice claim against the surgeons appearing in the photograph, being the applicants, and that that imputation is without foundation and is defamatory of each of the applicants.

There are a number of factors that are relevant to the amount of damages to be awarded.  First, the applicants have been seriously injured in relation to their professional repute.  Secondly, the booklet was sent to 8,531 medical practitioners in Victoria with the consequence that a significant number of doctors will be aware that the surgeons, the subject of the imputation, are the applicants.  Thirdly, the applicants are entitled to be apprehensive as to how they are viewed by their colleagues as a result of the publication, despite the evidence that a number of their colleagues did not think any less of them once they became aware that the applicants had no involvement with Slater & Gordon.  Finally, Slater & Gordon’s initial response to the applicants’ claim aggravated the harm caused by the publication.  No apology was forthcoming and the firm resisted the applicants’ request for access to its mailing list to enable them to communicate with the persons to whom the booklet was published.

However, in my reasons I also set out a number of mitigating factors in respect of the award of damages.  Further, differing amounts of damages are appropriate in respect of each of the applicants to reflect the difference in standing and experience of the two surgeons.

The approach I have taken to calculating damages for defamation is applicable to the calculation of damages under s 82 of the Trade Practices Act as a result of the publication and distribution of the booklet also constituting misleading and deceptive conduct in contravention of s 52 of that Act.

In my conclusion I stated that it is unfortunate that the development by Slater & Gordon of the code of conduct which it published in the booklet to reflect the firm’s “commitment to an ethical and highly professional practice in the area of medical negligence” has stumbled at its first hurdle.  It has not been suggested that there is anything in the code that is improper or inappropriate.  Indeed, I would expect that a number of medical practitioners may derive some comfort from the acknowledgment in the booklet that Slater & Gordon is aware of the effect that a claim can have upon a doctor’s reputation, and that, accordingly, when legal proceedings are commenced the firm endeavours to “avoid publicity which may unfairly reflect upon the doctor”.  However, in the present case, albeit unintentionally, Slater & Gordon’s endeavour to reassure the medical profession of its commitment to avoiding unfair publicity has resulted in unfair publicity concerning two members of that profession.

The Court makes the following orders:

1.      The respondent pay damages in the sum of $200,000 to the first applicant.

2.      The respondent pay damages in the sum of $100,000 to the second applicant.

3.      The respondent be restrained from publishing or distributing the booklet described in paragraph 4 of the Amended Statement of Claim in any form that uses the photograph of the applicants described in the particulars to that paragraph.

4.      Within 14 days from the date hereof the respondent, at its own expense, send by ordinary prepaid letter post the letter of retraction annexed as the Schedule to the order to each of the medical practitioners identified in Exhibit “AR 2” to the affidavit of Adam Gerhard Rollnik sworn on 7 April 2000.

5.      The respondent pay the applicants’ costs of and incidental to the proceeding.