Supreme Court New South Wales Medium Neutral Citation: O'Neill v Lewis [2017] NSWSC 1213 Hearing dates: 16 June 2017 Decision date: 16 June 2017 Jurisdiction: Common Law Before: McCallum J Decision: Imputations 2(a) and (b) struck out for ambiguity with leave to re-plead Catchwords: DEFAMATION – objections to imputations – no question of principle Category: Procedural and other rulings Parties: Dr John O'Neill (plaintiff) Dr Lou Lewis (defendant) Representation: Counsel: S Chrysanthou (plaintiff) J Van Aalst (defendant) Solicitors: Horton Rhodes Legal Pty Ltd (plaintiff) John Hertz & Associates (defendant) File Number(s): 2017/137662 Publication restriction: None Judgment 1. HER HONOUR: These are proceedings for defamation which are before the Court today for the first listing in accordance with the Defamation List Practice Note SC CL 4. Each of the parties is a doctor. The proceedings arise out of a series of remarks made by the defendant following a controversial boxing match attended by the plaintiff as doctor. The burden of the defamation complained of is that it is suggested the plaintiff allowed the fight to continue when it ought to have been stopped because one of the boxers was obviously concussed. 2. In accordance with the requirements of clause 13(b) of the Practice Note, it has been indicated on behalf of the defendant that publication of all matters complained of is admitted. 3. A number of objections were raised to the form of the pleading but after argument there remain only two matters to be ruled on. First, it is submitted on behalf of the defendant that imputations 2(a) and 2(b) pleaded in respect of the first matter complained of do not differ in substance, contrary to the requirement of r 14.30(3). Those imputations are: 2(a) The plaintiff, a doctor, incompetently allowed boxer Danny Green to continue fighting in a boxing match despite the fact that Mr Green was obviously heavily concussed. (b) 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 severe concussion. 1. The argument in respect of those imputations incidentally revealed what I regard to be an ambiguity in one or other of the imputations. Ms Chrysanthou, who appears for the plaintiff, submitted that the imputations convey different stings because the first attributes the plaintiff with an incompetent failure to diagnose concussion whereas the second attributes him with negligently endangering the boxer's life, having observed the concussion. 2. I do not think that is made plain on the present form of the imputations, since each includes the phrase, "Mr Green was obviously heavily concussed" or a like expression. The submissions made today reveal that the same or substantially the same words are used to have different meaning in different imputations, one intending to convey that the concussion had been observed and one intending to convey that it had not. If the ambiguity is cured, I would accept that the imputations convey different stings but the ambiguity should be cured by a re-pleading. 3. The second objection relates to the imputations pleaded in respect of the second matter complained of. Again, the complaint is that those imputations do not differ in substance. They are 4(a) and 4(b), as follows: 4(a) 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 concussion [sic]. (b) The plaintiff, a doctor, was recklessly indifferent to the welfare of Danny Green. 1. Ms Chrysanthou submitted that, if nothing else, there is a difference between the two because one attributes the plaintiff with an act, namely, having negligently endangered the boxer's life whereas the other attributes the plaintiff with a condition, namely, the condition of being recklessly indifferent to the welfare of a person within an imputation which identifies the plaintiff as a doctor. I accept that those imputations do differ in substance and that each may stand. The plaintiff should, however, re-plead the statement of claim in accordance with these reasons to cure the defects in imputations 2(a) and (b). 2. I make orders 1 to 4 in the short minutes. In addition, I order that the costs of today's arguments be each party's costs in the cause. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2017