Doctors expression of concern regarding school hearing tests not defamatory

Key Points
  • Communications are protected where a person has an interest or duty to make a statement on an occasion and the recipient of the statement has a corresponding interest or duty to receive it.
  • An email sent by a paediatrician who was concerned about health services being provided was not conduct in trade and commerce such that the Australian Consumer Law applied.

A recent decision in the Supreme Court was required to consider whether a paediatrician and health service, being vicariously liable for the paediatrician, had defamed a director of a company or engaged in misleading and deceptive conduct.

The conduct complained of related to an email sent by the paediatrician to the Department of Education and Training concerning the provision of hearing testing by a private company.

Counsel for the paediatrician and health service, submitted that the ordinary, reasonable reader would understand the email as merely an expression of concern warranting investigation rather than as definitive imputation of discreditable conduct, as alleged by the plaintiffs.

The common law recognises a defence of qualified privilege where defamatory statements are published. This defence provides that communications are protected where a person has an interest or duty to make a statement on an occasion and the recipient of the statement has a corresponding interest or duty to receive it.

The duty for the paediatrician to convey his concerns about the hearing services being offered was one of high order. A significant factor in assessing the nature and extent of the privilege was the fact that the paediatrician was better placed than most to assess the appropriateness of hearing tests offered.

The court was further satisfied that the paediatrician had direct access to that information, which enabled him to form his own assessment as to the appropriateness of some aspects of the service offered by the company.

The court was satisfied that the paediatrician’s conduct in publishing the email was reasonable and a defence of qualified privilege was established (both at common law and as a result of statutory qualified privilege) resulting in the claim for defamation failing.

The Plaintiff’s also claimed damages under the Australian Consumer Law for misleading or deceptive conduct. The defendants submitted that the claim must fail as the paediatrician’s conduct in sending the email was not conduct “in trade or commerce” within the meaning of the statute. The Court concluded that the Australian Consumer Law provides no mechanism for addressing the interests of a person in the paediatrician’s position and who by virtue of that position and in the public interest, was under a professional duty to send the email.

The court concluded therefore that the Plaintiff’s claim under the Australian Consumer Law must fail.

Post by Danika Nichols and Karen Kumar 

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