O’Neill v Lewis

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.

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.

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:

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.

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.

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:

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).

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.