DOCTOR ALLEGES LIBEL

Press, Volume LXXXIX, Issue 27094, 18 July 1953, Page 9

DOCTOR ALLEGES LIBEL

Colleague Sued For £5OO Damages

EVIDENCE HEARD AT PATEA (New Zealand Press Association) HAWERA, July 17. Claiming damages of £5OO for alleged defamation of character, Edmund Phillip Houghton, a medical practitioner, of Patea, and formerly assistant medical superintendent of the Patea Hospital, proceeded against John P. Duncan, acting-superintendent of the Patea Hospital, in the Magistrate’s Court at Patea today. The Magistrate (Mr W. C. Harley, S.M.) reserved his decision. Mr R. J. O’Dea appeared for the plaintiff, and Mr S. G. Cathro for the defendant. The claim was based on a letter written by the defendant to the “Wanganui Chronicle” in May, and published as correspondence, during criticism in public of the administration of the Patea Hospital. Houghton claimed as false and malicious the following words contained in Duncan’s letter to the newspaper: “It seems the ‘concerned’ practitioner, who arrived in New Zealand a little

over 10 years ago when the war was on, has not been in the services at any time,* or he might have learned the Army saying: ‘No names, no pack drill’.” The statement of claim said Houghton took these words to mean, and claimed they were understood to mean by the persons to whom they were addressed, that he (Houghton) came to New Zealand to avoid his duties and obligations to King and country in a time of national peril, and while in New Zealand continued to avoid his duties during the years 1939 to 1945. By these premises he had been greatly injured in his reputation, and had been brought into odium, ridicule, and contempt, he claimed. Evidence by Plaintiff Giving evidence in support of the claim, tne plaintiff said that in October. 1938, the New Zealand Government advertised in Britain for medical practitioners. He applied and was accepted. After sailing from England on December B—his passage was paid by the Government —he arrived in January. 1939, and was appointed as an assistant medical officer by the Mental Hospitals Division of the Health Department under contract for three years, said Houghton. He was so engaged at the outbreak of war. In September, 1939, in the first few weeks of the war, he volunteered for service with the New Zealand Medical Corps, but his enlistment was refused because he was a Government employee and because the Health Department refused to allow him to break his contract, said Houghton. On June 23, 1941, he wrote to the War Office, London, offering his services at the conclusion of his contract

in January, 1942, but his offer was declined. At the end of his contract, he was appointed medical superintendent of the Maniototo Hospital on a temporary war-time appointment to release the then superintendent, a single man, for service with the New Zealand Medical Corps, said Houghton. At the end of the war, he moved to Patea and established himself in private practice. In 1926, the plaintiff said, he had been a member of the University Officers' Training Corps, and qualified for an “A” certificate entitling him to a commission. In 1927, he was commissioned with the Gold Coast Defence Force. He was sent to Africa, and

served for two years in the Gold Coast. In 1929, he was transferred to

the Royal West African Frontier Force and served in Nigeria for three years. . In 1932, he returned to England, and ' was commissioned in the suppiemen- ‘ tary reserve of officers for the 4th ’ Queen’s Own Hussars, said Houghton. _ In 1938, he was transferred to the j supplementary reserve of officers for the Royal Army Medical Corps. He resigned his commission on leaving for j New Zealand. “Aghast at Insinuation”y Houghton said he bought a copy of the “Wanganui Chronicle,” in which ' he read the defendant’s letter on May 13. He read the letter up to the point . where it commented upon his lack of ’ war service. He was aghast at the : insinuation that he had arrived m ; New Zealand during the war, and that ! he had shirked his obligations. The plaintiff said he consulted his , solicitor, and instructed him to write ' to Duncan, giving him the opportunity ; of apologising and of retracting the statement. The plaintiff produced a copy of the letter sent to Duncan and the latter’s reply. No apology was made. The plaintiff said he considered that 1 the passage in Duncan’s letter to which he took exception had no reference to a letter which he (Houghton) had written to the “Wanganui Chronicle” on May 11. Cross-examined by Mr Cathro, Houghton said the matter was not one which could have been settled by the British Medical Association. It was an attack on his personal character, not based on ethical grounds. The defendant had attacked his reputation as a citizen, not as a doctor. Asked if he had received any communication from the B.M.A. about the matter, Houghton said he had been requested to refrain in future from writing to newspapers about the treatment of patients. He had also received verbal approval of his attitude in the case from a high authority in the B.M.A. Mr Cathro: Do you think Dr. Duncan has a duty and an interest to reply? Houghton: This started with an editorial article in the “Chronicle” to which the secretary of the Hospital Board replied, making some unjustifiable statements about me. Mr Cathro: You had in your hands an effective remedy? The Magistrate: What was that? Mr Cathro: He could have written another letter to the “Chronicle” to tell the public the facts. The Magistrate: Don’t you think enough letters had been written al- • ready? It would have been much more seemly if neither of the first two letters had ever been written. Mr Cathro: We heartily agree. It was nothing to do with the Hospital Board. Defence Submissions Mr Cathro said the defence was an admission of the publication of Duncan’s letter, but a denial that if was published falsely and/or maliciously. The defence was a denial of any innuendo. It was contended that the words were fair, and bona fide comment on matters of public interest in the district in the disputes between ’ Houghton and the Patea Hospital ■ Board. The letter was published by ’ Duncan in reply to a letter published bv Houghton in the “Chronicle.” in which the administration of the Patea ' Hospital and the treatment of patients , were criticised.

Duncan had replied to Houghton in ' vindication of his own professional ; reputation, and of the standard of ; treatment in the hospital, said ’ counsel. The defence therefore claimed that the occasion was privileged. As a further defence it was claimed that the words objected to by Houghton did not mean what was alleged by Houghton; they were incapable of the alleged meaning or any other defamatory meaning; and without the meaning alleged the words » were not libel, Mr Cathro said, r The evidence failed to show that ’ Duncan had made his statement . maliciously, said Mr Cathro. He moved - for a non-suit. The answer to all that Mr Cathro had said was the indisputable right 1 nf every man to his unimparied reputation, said Mr O’Dea. The state- - ment complained of had no relation < to the letter published by Houghton. Authorities quoted by Mr Cathro I. made it plain that no plaintiff had ever been non-suited for failing to t prove malice in the first instance and. ti further, the law presumed in his e favour the prima facie falsity of the statement in question. “I hold that the statement com-

plained of is not a privileged statement.” said the Magistrate, dismissing the motion of a non-suit. "People cannot write to the newspapers and claim privilege. There is a case here to answer.”

Mr Cathro said the alleged meaning put on the words used was not capable of being put there, and there was nothing further from Duncan’s mind than to impute that Houghton was a shirker. Duncan had been closely associated with the Army, and he took “No names, no pack drill.” to mean “Do not open your mouth or complain, or you will suffer punishment”—in other words. “If you keep your nose out of trouble you’ll not get into trouble yourself.” Defendant Denies Malice The Magistrate then asked both counsel to meet him in chambers. When the Court resumed, evidence was given by Duncan. H* 1 denied that he had intended anv malice in what he had written. He said he took precautions aeainst libffi bv showing his letter to the Hospital Board’s solicitor before it was published, and also of referring it to the chairman of the board and to the editor, of the “Wangaui Chronicle.” who checked it three times.

Asked whv he should have thought there was anv dahger of libel, the defendant said he had previously had experience with an editor who had been very strict. “I had no desire to libel Dr. Houghton; I just wanted to answer him. I had no intention of imputing cowardice.” Duncan said. Mr O’Dea: But other people took that inference from your words? Duncan: That is irrational. Under war-time conditions, the plaintiff could not have shirked his duties unless he took to the hills. The defendant said he was prepared to withdraw anything he had said that was untrue, but he refused to apologise.