DOCTORS DIFFER

Evening Star, Issue 19698, 27 October 1927, Page 3

DOCTORS DIFFER

SOUTH OTAGO SLANDER CASE VERDICT FOR DR BIGGS “ PRIVILEGED OCCASION AND NO MALICE.” His Honor Mr Justice Sim lias given judgment on the point of law referred to him in the case in which Dr Stewart, of Milton, claimed damages from Dr Arthur Cecil Digits, superintendent of the South Otago Hospital at Balcluiha, lor alleged slander. The case was tried before a jury at Dunedin on August 1G and 17, Mr H. E. Barrowelough, with him Mr C. B. Barrowelough, appearing for the plaintiff, and Mr J. S. Sinclair, with him Mr It. S. Bremncr, for the defendant. The following were the issues submitted to the jury and its answers:— 1. IVcro tho words set out in paragraph 4 of tho statement of claim defamatory of the plaintiff in connection with bis profession as a medical practitioner P—Yes. 2. Were tho said words true?—No, G. Did the defendant honestly believe them to be true?-—No. 4. Was the defendant, when he spoke the said words, actuated by malice against the plaintiff?—Yes. What damages is the plaintiff entitled to recover? —£25.

In tho course of his judgment His Honor pointed out that the plaintiff was a. medical practitioner residing and practising at Milton. The defendant was the medical superintendent of the South Otago Hospital Board, and resided at Balclntlia. Tho board’s base hospital was at Balclntlia, and there were hospitals also at Milton and Knitnngata. It was arranged that the plaintiff and Dr Edgar, who was the only other medical practitioner in Milton, should act alternatively for a period of six months as deputy superintendent of the Milton Hospital. Dr Edgar acted as such superintendent for a period of six months, and the plaintiff took up the position on March 1. 1926. The defendant was not_ satisfied with tho way in which the plaintiff was performing the duties of deputysuperintendent, and on June 22, 1920, he removed the plaintiff from tho position, and appointed Dr Edgar as deputy-superintendent in his place. Notwithstanding this change, the plaintiff remained for some time a member of the honorary hospital staff, but bo was removed afterwards from that position by I lie board. Tlic friendly societies in Milton objected' to this further change, and communicated with the board on tho subject in November, 1920. The board declined, however, to restore the plaintiff to his position as a member of tho honorary hospital staff. On December 16 a deputation of Milton citizens attended at Balclntlia to discuss with the board tho question of tho plaintiff’s position. Tho report of the proceedings at that meeting contained in the ‘ Bruce Herald ’ newspaper was accepted by the parties as being substantially correct. Tho chairman of the board asked if tho deputation desired the meeting to bo public, and the reply was in the affirmative. Tho first speaker from tho deputation was Mr John Murray, who said that they had come to try to ascertain tho reason why the board had declined to reinstate Dr Stewart as medical surgeon in tho Milton hospital. Ho was representing, ho said, tho great majority of tho friendly societies’ members, very many of whom desired to ho treated, when ill in hospital, hy Dr Stewart. One of the speakers, Mr D. Hepburn, said tho deputation wanted to help the board if possible; they wanted to try io find out what was wrong and remedy it if possible. After several speakers had expressed their views the medical superintendent, Dr A. C. Biggs, according to the newspaper report, rose to reply. The chairman asked if the medical superintendent’s remarks wore to go into tho Press. It was deemed at first to go into committee. This is the newspaper report of what then happened : “ Mr Fahey remarked that so far- as the deputation was concerned they wanted the matter ventilated in public and Dr Stewart wanted it public. too. Members of the deputation: ‘Hear, boar’; we all do. Mr Clark: Very well. I’ll withdraw my vote for committee. Lot’s hear the lot in public if von want it. It was then unanimously decided by the hoard that the medical superintendent’s statement be made in open meeting.” Tho defendant thereupon proceeded to make a statement in connection with llio plaintiff and the slilto.ii Hospital. The plaintiff alleged that a passage m this statement was defamatory of him in connection with his profession, and he claimed to recover £SOO as damages. The passage of which tho plaintiff complained was as follows; — Some time ago a, woman living in the neighborhood of Milton was expecting confinement, and a week before that she developed mumps. Dr Stewart tried all he could to get that woman into private maternity homes at Balclntlia, Milton, and Forth street (Dunedin) —to got those pianos to take in a woman suffering Irom a highly infectious disease into a place wlmro there were other women and little babes. Actually the case arrived at the door of tho Milton home, but tho nurse in charge quite rightly refused to take it in.

The defendant pleaded that these words were true in substance and m foot. He pleaded also that ho spoke the words in discharge of his duty as medical' .superintendent for the board and at the request of the board, and without malice, in the honest behefthat they were true. He claimed, therefor, that the occasion was privileged. After the issues were answered by the jury the further consideration of the action was adjourned. Tire plaintiff had moved for judgment, bub waived his right to the damages awarded by the jury. The defendant had moved for a judgment in hislavor, on the ground that Hie. occasion o the publication was privileged, and there was no evidence fit to be submitted to the jury of malice or excess of privilege. In the iilternntn c the defendant asked for a new trial on the ground that the verdict was against tiic weight bf evidence in connection with the answers to issues two and four. , , The, question whether Hie occasion was privileged, if the facts were not in dispute, was a question of law only, for flic judge and not the jnrv. An occasion was privileged where the person wlio made a communication had an interest or a duty (legal, moral, or social, of perfect or imperfect obligation) to make it to Hie pesrson to whom ho did make it, and the person to whom he did make it had a corresponding interest or duty to receive it. in the present ease the object of' tlic deputation was to ascertain the board’s reasons for refusing to reinstate the plaintiff as a member of the honorary hospital staff at Milton. The defendant's statement was made at the request of the hoard for the purpose of making these masons clear to the members of the deputation. It was tlic duty of the defendant to make the statement when requested to do so by the hoard. The memhersof the deputation had an interest in hearing the defendant’s statement of the reasons. And so, also, had Hie members of the hoard. Prima facie, therefore, the occasion was privileged, ft was contended, however, on behalf of the plaintiff Hint the presence of the newspaper reporters at the meeting prevented the occasion from being privijened. But the ease of Pittard v. Oliver (1891) was an authority against that view. There the defendant at a meeting of a hoard of guardians, of which ho was a member, made certain defamatory statements concern-

ins; the plaintiff in connection with his accounts as clerk of the board, it ''' as held by' the Court of Appeal that the occasion was privileged, notwithstanding the presence of newspaper reporters.' To the same effect was the decision of Mr Justice Williams m the case of Hodges v. Glass. In the present case the defendant was not responsible in any way for the presence of the reporters or for the matter being dealt with in open meeting, ana the occasion, His Honor thought, nas privileged. , , .1 After quoting other eases on _ the question of malice, His Honor said it was not suggested that the statement complained of here contained m Jt.se li evidence of maiicc, mid the pliuntnl 10lied on several extrinsic cn’cninstances as justifying a finding of malice. Jim first was the relations between the parties. It was clear from the evidence that there had been friction -hetii ecu them, and the jury were justified m thinking that the relations between the parlies were strained. But that, although it bore upon the issue ot malice, was not sufficient of rtsc If, ho thought, to justify any reasonable man iu saying that the defendant was i' o ® using the privileged occasion honestly, but was abusing it. There must bo evidence on which a reasonable man could find malice, and a jury was nob entitled to say that a defendant must have been malicious merely because no was on bad terms with the plaintiff. The plaintiff relied also on the met that the defendants had pleaded a plea of justification. But that was not in itself evidence ot malice, oven though the defendant did not attempt to establish it at the trial. The defendant, however, did attempt to establish ms plea of justification, and proved it, His Honor thought, by the _ evidence adduced by the plaintiff himself. JJio plaintiff made it part of his ease to prove the facts in connection with the case referred to by the dclendant, Hint case was dealt with by the dclendant in three sentences of a statement occupying about T7O lines in the newspaper report. The first sentence was as follows:—“Some time ago a woman living in tho neighborhood of Milton was expecting confinement, and a week before that she developed mumps.” 'That was true. Tho third sentence was true also, and was as follows;—“Actually tho case arrived at the door of the Milton home, but the nurse in charge quite rightly refused to take it in.” The second sentence, which was alleged to be defamatory, was as follows: —“Hr Stewart tried all ho could to get that woman into private maternity homes at Balclutha, Milton, and Forth street, Dunedin—to get those places to take in a woman suffering from a highly infections disease into a place where there were other women and little babes.” Now, tho plaintiff did attempt to get the woman taken into a maternity homo at each of .these places. The plaintiff gave evidence himself on the subject, and called as witnesses Dr Radcliffe, of Balclutha, Dr Russell Ritchie, of Dunedin, and Mrs Marryatt, who had a private maternity hospital in Milton. After quoting plaintiff's evidence His Honor said it was clear from it that the plaintiff did attempt to got flic patient taken into a maternity homo first at Balclutha, then at Milton, and lastly at Dunedin. It was true that the plaintiff asked to have the patient taken into the cottage at Nurse Marryatt’s, but that was part of the hospital, and the isolation ward at Forth street was part of the maternity hospital. In substance, therefore, the statement made by the defendant was true, and the plaintiff’s whole grievance was that the defendant slated the facts in such a way as to imply that the plaintiff tried to have tho patient placed beside the women and babies in tho maternity home. The plaintiff had not introduced this interpretation of the defendant’s words by an innuendo in his statement of claim, and it was doubtful whether this was fhe meaning that would ho ascribed to thorn by reasonable men who heard thorn. Jf this view be right, then the case seems to conic within the decisions that judgment ought to be given for the defendant. Tho defendant, however, did not ask for judgment on this ground, and His Honor said lie would proceed to deal with the ground on which his motion was based. ,

Where an occasion was privileged it was not for the defendant, as a, condition of immunity, to prove affirmatively that he honestly believed the statement to bo true. The jury bad found in Hie present casu that the defendant did not honestly believe the .statement he made to be true; but in .His Honor’s opinion there was nothing in the evidence to justify such a finding. The defendant was told by Dr Crawsluuy, the Public Health Officer at Dunedin, of the attempt to get the patient into the Forth Street Maternity Home, and ho was told by Dr Edgar, of Hilton, of tlio attempts to get the patient into the home at Balclnllui and tho homo at Milton, ft was not suggested that tho defendant find any reason for doubting the truth of what ho had been told, and bo was not bound to make further inquiries before acting on the information supplied to him. Uis Honor thought, therefore, that the finding of the jury on the subject was really perverse. On tho question of whether or not there was auv evidence to justify the finding of malice he laid examined already some of tho matters relied on by the plaintiff to justify tho finding. There were other' matters relied on by the. plaintiff for tho same imrpo.se. it was not necessary to examine these in detail, ft was sufficient to say that they made it clear that the relations between the parties wero strained. But that was nob of itself sufficient to justify a finding of malice. The whole statement made by the defendant to tho deputation was for the purpose of justifying the action of the board in connection with the plaintiff, and anything which would discredit tho plaintiff professionally was relevant to the discussion. The defendant was justified, therefore, in bringing up Mrs P.’s case, and there was nothing in the evidence to justify the jury in saying that the defendant did not use the privileged occasion for its proper purpose—namely, that of vindicating the action of tho board —hut abused it by making an unnecessary attack on tho plaintiff’s professional character. If the court came to the conclusion that the occasion was privileged, and that there was no evidence, or not more than a scintilla of evidence, as to malice, tho proper course was to enter judgment for the defendant. The result was that judgment was to be entered for the defendant. with costs according to scale, and disbursements and witnesses’ expenses, to bo fixed by the .Registrar. The defendant was allowed £ls 15s for tho second day of the trial, and £lO 10s for the costs of tho motion for judgment. The judgment of His Honor was read this morning by the Registrar (Mr W. D. Wallace).