Haertsch v Andrews & Anor [1999] NSWSC 359

New South Wales Supreme Court CITATION : Haertsch v Andrews & Anor [1999] NSWSC 359 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20429 of 1998 HEARING DATE(S) : 9 April 1999 JUDGMENT DATE : 21 April 1999

PETER HAERTSCH (Plaintiff)

v PARTIES : CRAIG GEORGE ANDREWS (First Defendant)

THE STATE OF NEW SOUTH WALES (Second Defendant) JUDGMENT OF : Levine J

W H Nicholas Q.C. R Lancaster COUNSEL : (Plaintiff)

M Lynch (Second Defendant) Schrader & Associates (Plaintiff)

SOLICITORS : Gilbert & Tobin (First Defendant)

Crown Solicitors Office (Second Defendant) CATCHWORDS : Imputations - capacity - difference in substance DECISION : See paragraph 15

DLJ : 1 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

No. 20429 of 1998

JUSTICE DAVID LEVINE

WEDNESDAY 21 APRIL 1999

PETER HAERTSCH (Plaintiff)

v

CRAIG GEORGE ANDREWS (First Defendant)

THE STATE OF NEW SOUTH WALES (Second Defendant)

JUDGMENT (Imputations - capacity - difference in substance) 1 By a Statement of Claim filed on 6 November 1998 the plaintiff sues the first defendant as the editor of the bi-monthly magazine entitled " Polare ' and the second defendant by reason of the New South Wales Health Department, so it is alleged, being the publisher of that journal. The particular article sued upon is Exhibit A, the whole journal tendered by the plaintiff is Exhibit 1: it provides a context. 2 The article sued upon is comprised of two parts, a letter to the editor which is the following terms: "Dear Editor, I am transgendered and a mother, but unfortunately I have, for all practical purposes been bed ridden after SRS corrective surgery was carried out by Dr Peter Haertsch two years ago. My 17 year old daughter Tracey was required to do an essay for a School English assignment. It was to be about changes and effects on her life and this is her essay. I am sending it in as written. I think it is self-explanatory if the above is known. Rachael". 3 The second component is entitled " The Lonely Haunting Cry… " being the essay referred to in the communication with the editor. The essay fairly acknowledged by the defendant to be a moving composition is, on any fair reading, an integral part of the publication as a whole sued upon. 4 The plaintiff alleges that the matter complained of conveys the following defamatory imputations: "4(a) that the plaintiff was so grossly negligent in carrying out sexual reconstruction surgery on the patient Rachel (sic) that he caused her ongoing intolerable pain; (b) that the plaintiff was so grossly negligent in carry out (sic) sexual reconstruction surgery on the patient Rachel (sic) that he destroyed her quality of life; (c) that the plaintiff was so grossly negligent in carrying out sexual reconstruction surgery on the patient Rachel (sic) that he caused her to be bedridden for life; (d) that the plaintiff was so grossly incompetent in carrying out sexual reconstruction surgery on the patient Rachel (sic) that he caused her ongoing intolerable pain; (e) that the plaintiff was so grossly incompetent in carrying out sexual reconstruction surgery on the patient Rachel (sic) that he destroyed her quality of life; (f) that the plaintiff was so grossly incompetent in carrying out sexual reconstruction surgery on the patient Rachel (sic) that he caused her to be bedridden for life". 5 The first objection taken to the imputations is that they do not differ in substance. Mr Lynch was good enough to remind me of the decision of Hunt J in Matheson v Kennedy & Anor (unreported, 3 November 1989) where his Honour was concerned with a similar question as to the distinction, if any, between incompetence and negligence. His Honour found that there was but, in effect, " only just ". I am of the same view and this basis for dealing with the matter does not succeed. 6 It is next contended the matter sued upon is incapable of conveying the imputations pleaded. 7 It is argued that the availability of the pleaded imputations depends upon the proscribed " inference upon inference" drawing most recently reviewed by Hunt CJ at CL in Amalgamated Television Services Limited v Marsden (1998) 43 NSWLR 158 at 167. Indeed, it is suggested that there are three inferences involved here. The first inference is that the person Rachael became bedridden because of, or as a result of, surgery performed by the plaintiff. The second is that the surgery which he did perform was performed negligently or incompetently. The third inference is that because of the negligent or incompetent performance of the surgery the complainant was caused to suffer ongoing intolerable pain because of the plaintiff's negligent surgery, thereby the complainant's quality of life was " destroyed " not diminished, not damaged, but destroyed completely, rather than just for two years as is referred to in the matter complained of. 8 It is next argued that in any event, the ordinary reasonable reader would understand surgery not to be risk free, particularly " serious ' surgery, and that sometimes the procedure can have an unfortunate outcome which leaves a person with disability. Further, there is a problem, it is contended, in that the matter complained of contains the letters " SRS" which would be meaningless to the ordinary reasonable reader they being an abbreviation for sexual reconstruction surgery. 9 I have given the submissions by Mr Lynch for the second defendant, which were supported by Mr Andronos for the first defendant, serious consideration. 10 There are two critical components of the whole of the matter complained of: first, the reference to the surgery carried out by the plaintiff and second, the statement in the last sentence " if the above is known " which embraces the highly emotive component of the daughter's essay. 11 I am not persuaded at all that the ordinary reasonable reader would have to go through the proscribed ratiocination in drawing the three inferences referred to. I am persuaded however by the statement by Mr Lynch that these imputations are " pitched " very high. They most certainly are. They arguably represent however, for the purposes of the present application, in my view, no more than the drawing in the case of each imputation of an inference from what is either expressly stated in the matter complained of or implicit in it, particularly the fact of the surgery, the fact that it was corrective surgery, the fact that it was carried out by the plaintiff two years ago and the fact that for all practical purposes the plaintiff has been bedridden. Whether the inferences (if they be inferences) represented by the imputations are available to the high level pitched in each of the causes of action, in my view, should be a matter for the jury. 12 Nothing, in my view, turns upon any question of ignorance of " SRS "; arguably its omission would make no difference to the substance of the plaintiff's complaint. 13 This is one of those cases, in my view, which is an " all or nothing " case. The perils in pleading imputations pitched so high are clear and I am not persuaded that the matter complained of is incapable of conveying them bearing in mind the general principle of reasonableness, referred to in Marsden and the approach referred to in Jones v Skelton (1963) 63 (Supra) (NSW) 644 and Lewis v The Daily Telegraph [1964] AC 234. 14 This is pre-eminently a case for the jury and the parties should turn their mind as to whether there exists a mechanism to be availed of with some promptitude for the determination of the question of fact as to whether or not the imputations are conveyed. 15 The formal orders are: 1. Imputations 4(a) - (f) inclusive shall go to the jury. 2. The defendants are to pay the plaintiff's costs. 3. The parties have liberty to file, by consent, orders and directions for the further conduct of the matter in the Defamation List, within 14 days. 4. At the expiry of 14 days, liberty to restore to the Defamation List on 3 days notice. *********