TRIAL BY BUS DRIVER
Two trials, two drivers: one accused of alcoholism; the other of dangerous conduct...
Two trials took place in 2014 that involved bus drivers. In the London trial, the driver was the defence’s key witness. Meanwhile in New South Wales, the driver was the plaintiff.
Garcia v Associated Newspapers Ltd  EWHC 3137 (QB)
Facts: In April 2012, the Daily Mail and MailOnline published an article headed “A whole year of hell, thanks to a foreign doctor”. The article concerned the plaintiff, Dr Serrano Garcia, a Spanish-born doctor who since 1995 had lived and practised medicine in England.
The article stated that the plaintiff had wrongly reported Mr Kevin Jones to the Driver and Vehicle and Licensing Agency (DVLA) for alcohol abuse following a medical consultation in January 2011. Jones had attended the consultation in respect of foot and ankle pain that he was suffering, for which the plaintiff diagnosed gout caused by excessive alcohol intake. Following the plaintiff’s report to the DVLA, Jones’ bus driving and personal licences were suspended, as a result of which Jones lost his job. The article also suggested that the plaintiff had been evasive with the newspaper reporter when approached for comment.
Trial: The case hinged on a credibility contest between the plaintiff and Jones – the newspaper’s key witness – largely in respect of what occurred at the consultation at issue (which Jones’ wife and 7-year-old son had also attended). If the plaintiff’s version of events was to be believed, Jones had solemnly disclosed serious issues about his alcohol usage, before backtracking his statements once alerted that the DVLA would have to be notified. In contrast, Jones’ version – corroborated by his wife to some degree – was that he was only a social drinker and, at the consultation, had said only in jest that he drank “probably too much”. It was suggested that this joke was lost in translation with the plaintiff who got the wrong end of the stick.
Held: (Dingemans J) The Judge held that the article contained 5 (lengthy) defamatory meanings. The Judge said that the main sting of the article, however, was that it was wrong and inappropriate for the plaintiff to report Jones to the DVLA because—
- there was no evidence of Jones’ persistent abuse of alcohol;
- the plaintiff had misunderstood Jones’ reports about his drinking because of the language barrier; and
- the report to the DVLA was in breach of patient confidentiality.
After traversing the evidence (in a 308-paragraph judgment!) His Honour rejected the defence of truth. He found that the plaintiff had correctly diagnosed Jones to be suffering from gout caused by excessive drinking – a quasi “legal” medical diagnosis. This, and a previous medical record of Jones admitting to drinking up to 70 units per week, was enough for the Judge to find for the plaintiff’s version of events. Accordingly, the Judge held that the plaintiff had reported Jones to the DVLA justifiably. Further, there was no misunderstanding on the basis of any language barrier. Indeed, the plaintiff’s colleagues gave evidence of his fondness for English comedy. Finally, as to the apparent breach of confidentiality, the Judge rejected this argument and in fact lauded the plaintiff’s concerns as to maintaining Jones’ confidentiality with the newspaper reporter.
The plaintiff was awarded £45,000, the Judge taking into account the harm and distress the publication had caused, including evidence of malicious comments from other patients following the article, and feelings of ostracism and marginalisation. However, the Judge also found that the plaintiff’s report to the DVLA contained relevant errors and omissions, which had an impact on the level of damages the Judge was prepared to award. The Judge said these errors were matters that the defence had proven true, but they did not go far enough to support the defence overall. As His Honour put it, “[T]here are important differences between being wrongly accused of reporting someone without evidence to show persistent abuse of alcohol on the one hand, and it being said that the reporting letter, which was properly sent, should have contained more information”.
Discussion: This case is a classic exhibition of the defence of truth hinging on a credibility contest between two main witnesses’ conflicting accounts. It is a reminder of the need for keeping accurate contemporaneous notes of events and conflicts, which tend to carry significant weight in the courtroom.
The Judge seemed at pains not to make any findings of mendacity, insisting that neither side had “lied”; that rather each made “honest mistakes” in their evidence. All the same, there were some curious contradictions in the evidence given. Possibly the most striking example was whether Jones’ son had said at the consultation, “Dad you’re an alkie”, as the plaintiff claimed. The Judge found that the plaintiff had simply “convinced himself” that it was said.
Finally, it is noteworthy that the Judge did not award aggravated damages despite a failed defence of truth. Indeed, there seems to be real force in the principle – yet to be adopted explicitly in New Zealand – that so long as a defence of truth is pleaded in good faith and run in a reasonable way, it should not of itself give rise to an award of aggravated damages.
Click here to read a case report by Harvey Starte, a barrister at One Brick Court, who acted for the plaintiff.
Fisher v Channel Seven (No 4)  NSWSC 1616
Facts: In June 2011 Channel Seven broadcast on the show “Today Tonight” a segment called “Bus-ted Driver”. It alleged misconduct by the plaintiff in his job as a school-bus driver.
Trial: Over an 8-day trial, the jury heard evidence from the plaintiff about the misbehaviour of 6 teenagers who travelled on his bus. According to the plaintiff, the children would swear, vandalise the bus and the seats, throw rubbish and objects out the window, spray high concentrations of deodorant, make inappropriate sexual remarks to female passengers, open or close windows in defiance of the plaintiff’s instructions, and “moon” members of the public.
Some of the schoolchildren gave evidence at trial. It was alleged that the plaintiff had kicked one boy off the bus some 75km from his home. He had allegedly told another to clean up his vomit after the boy was sick on the bus. Further, it was alleged he sometimes drove with the door open. The plaintiff accepted that he had stopped the bus on occasion to buy a newspaper or to use the bathroom while children were in the bus, which was in breach of the safety guidelines. However, the defence’s most damaging evidence was video of the plaintiff talking on his mobile phone and not wearing a seatbelt whilst driving, and a schedule of the plaintiff’s telephone records in conjunction with the bus timetable – which materially contradicted the plaintiff’s own evidence.
Jury verdict: The jury returned a special verdict in which it found 6 of the plaintiff’s 7 pleaded meanings to be conveyed by the broadcast. The jury determined that 2 of the 6 defamatory imputations were proved to be true: that the plaintiff—
- drove his bus, which was carrying school children in a dangerous manner; and
- drove a bus containing 40 school children without wearing a seat belt.
However, the jury determined that the broadcast conveyed 4 imputations that could not be defended on the basis of either truth or honest opinion: that the plaintiff—
- wrongly used his mobile phone while driving his bus containing 40 school children on a notorious stretch of outback road;
- is a menace to the safety of others;
- unjustifiably banned school children from travelling on his bus, thereby depriving them of the opportunity to attend school; and
- stranded children who were passengers on his bus.
Accordingly, the plaintiff sought general compensatory damages as well as aggravated damages on the basis of the defendants’ conduct. The defendants, meanwhile, submitted that the Court should award only nominal damages on the basis that, in view of the imputations proved true by the defendants at trial, the broadcast had not independently damaged the plaintiff’s reputation in any substantive way.
Held: (Rothman J) In contrast to Dingemans J in Garcia, the Judge in this case made positive findings of mendacity. He stated that “in some respects the plaintiff gave a version of events that was inaccurate or untruthful. The plaintiff often avoided questions or refused to answer directly. He dissembled and was mendacious”.
Nonetheless, since there remained defamatory imputations that had not been proved true, the plaintiff was entitled to damages. The Judge awarded AUD$125,000, taking into account the plaintiff’s hurt feelings and loss of charter work as a result of the broadcast. However, the Judge did not attribute the breakdown of the plaintiff’s marriage to the defamation.
Discussion: This case is a good example of a plaintiff’s claim prevailing with significant damages despite (a) he having been found to have told lies to the Court; and (b) damning imputations having been proved true. It also demonstrates the power of video evidence and utility of telephone records.