Just because it’s online doesn’t mean no one takes it seriously

I take into account a range of factors when advising clients on the prospects of success of a defamation claim but one of the key factors is the extent of publication and how any loss can be quantified. A recent Supreme Court of NSW case has recently shown that this factors should not necessarily be seen as a hurdle.

Dr Al Muderis is a highly respected orthopaedic surgeon, highly regarded for his pioneering work prosthetics surgery on amputees. In 2014 Dr Al Muderis performed hip surgery on Mr Mazzella. Mr Mazzella allegedly suffered an adverse outcome from the operation, although it appears that both a disciplinary complaint and civil proceedings in relation to the procedure were dismissed. Mr Mazella then proceeded with what has been described as ” a most vicious and vituperative series of publications” vilifying Dr Al Muderis. Mr Mazella and his brother, Mr Duncan, set up website using Dr Al Muderis’ name and photograph which posted serious allegations against the doctor’s professional capacity and personal character. I understand threats were also made against the doctor’s family and an apprehended violence order taken out against Mr Mazella. Dr Al Muderis sought urgent injunctive relief and commenced defamation proceedings. Mr Mazella and Mr Duncan did not defend the proceedings and default judgment was entered against them.

In assessing damages great weight appeared to have been given by the Court on the doctor’s pioneering work in surgical procedures for amputees and considered his reputation was “extremely high or at the highest possible level”. The Court determined that the acceptance of the doctor’s novel procedures was dependant upon his reputation and therefore the defamatory imputations were “extraordinarily damaging”. The Court awarded Dr Al Muderis a total of $480,000 in damages and aggravated damages.

So, while the Court may not have been able to assess the extent of publication or have any concrete way of assessing damages, that should not be seen as a hurdle for a successful defamation claim. In professions in which the reputation of the individual is critical to their business and success, the very fact of putting that reputation into question may be sufficient regardless of whether the usual factors in a successful defamation claim may be absent.

This case is one well worth keeping in mind when advising health and allied health professionals in relation to defamation claims.

Please contact Julie if you wish to understand some of the issues raised in this judgment in more detail. If you would like to keep up-to-date on issues and developments relevant to professionals follow Julie Somerville on LinkedIn.

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