Two trials, two drivers: one accused of alcoholism; the other of dangerous conduct.

Two trials took place in 2014 involving bus drivers.  In the London trial, the driver was the defence’s key witness.  Meanwhile in New South Wales, the driver was the plaintiff.

Case reviewed: Garcia v Associated Newspapers, London, United Kingdom
[2014] EWHC 3137 (QB)

Case reviewed: Fisher v Channel Seven (No 4), News South Wales, Australia
[2014] NSWSC 1616

Garcia v Associated Newspapers

Background

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 whom since 1995 had lived and practised medicine in England.

The article stated that Garcia had wrongly reported 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, of which Garcia diagnosed gout caused by excessive alcohol intake.  Following the plaintiff’s report to the DVLA, Jones’s bus driving and personal licences were suspended, as a result of which Jones lost his job.  The article also suggested that Garcia had been evasive with the newspaper reporter when approached for comment.

Trial

The case hinged on a credibility contest between Garcia on one hand, and Jones on the other as the newspaper’s key witness.  The contest was largely in respect of what occurred at the consultation (which Jones’s wife and 7-year-old son had also attended).  If Garcia’s version 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’s 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.

Judgment

Justice Dingemans held that the article contained five (lengthy) defamatory meanings.  The Judge said that the main sting of the article, however, was that it was wrong and inappropriate for Garcia to have reported Jones to the DVLA because:

• there was no evidence of Jones’s persistent abuse of alcohol;

• Garcia had misunderstood Jones’s 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 over a 308-paragraph judgment(!) his Honour rejected the defence of truth.  He found that Garcia 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, Garcia’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 Garcia’s concerns as to maintaining Jones’s confidentiality with the newspaper reporter.

Garcia 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 Garcia’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.

Comment

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 to keep 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’s son had said at the consultation, “Dad you’re an alkie”, as Garcia claimed.  The Judge found that Garcia 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.

Fisher v Channel Seven

Background

In June 2011, Channel Seven broadcast on the show “Today Tonight” a segment called “Bus-ted Driver”.  It alleged misconduct by the plaintiff, Mr Fisher, in his job as a school bus driver.

Trial

Over an eight-day trial, the jury heard evidence from Fisher about the misbehaviour of six teenagers who caught his bus.  According to Fisher, 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.  It was alleged that Fisher 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 on 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 while driving, and a schedule of the plaintiff’s telephone records in conjunction with the bus timetable – which materially contradicted Fisher’s own evidence.

Verdict

The jury returned a special verdict in which it found six of the plaintiff’s seven pleaded meanings to be conveyed by the broadcast.  The jury determined that two of the six meaning were proved to be true; that Fisher:

• 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 four defamatory meanings that could not be defended on the basis of either truth or honest opinion; that Fisher:

• 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.

In Australia, juries do not determine damages.  So with liability having been established, it was for the trial judge to assess damages.

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 meanings proved to be true, the broadcast had not independently damaged the plaintiff’s reputation in any substantive way.

Judgment

Justice Rothman—in contrast to Dingemans J in Garcia—was quite prepared to make positive findings of mendacity:

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 meanings that were unable to be defended, 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 Fisher’s marriage to the defamation.

Comment

This case serves as 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 meanings having been proved true.  It also demonstrates the power of video evidence and utility of telephone records in evidence.