Warren David Gatland v Fairfax New Zealand Ltd
| Jurisdiction | New Zealand |
| Judge | Toogood J |
| Judgment Date | 13 May 2016 |
| Neutral Citation | [2016] NZHC 970 |
| Docket Number | CIV-2015-485-483 |
| Court | High Court |
| Date | 13 May 2016 |
IN THE MATTER of the Defamation Act 1992 of the Defamation Act 1992
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[2016] NZHC 970
CIV-2015-485-483
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
Application by the plaintiffs to strike out the defendant's defence of honest opinion, or to order an amendment of the pleadings and particulars — the plaintiffs were suing the defendants for defamation, over comments appearing in an article that was critical of the plaintiffs’ handling of potential head injuries to a Welsh rugby player during the rugby international — the defendants denied that the article was capable of bearing the defamatory imputations alleged by the plaintiffs — in the alternative, they relied on the affirmative defence of honest opinion — the defendant's pleadings identified parts of the article containing 52 expressions of opinion and a number of statements of fact — the plaintiffs said this would be contrary to the Court of Appeal (CA) decision in Television New Zealand Ltd v Haines, whereas the defendants said it was in line with the CA decision in APN New Zealand Ltd v Simunovich Fisheries Ltd — whether the plea of honest opinion responded to the plaintiff's alleged imputations — whether the defendants had correctly used a “rolled-up plea” — whether the defendants could deny the plaintiff's imputations, in conjunction with an alternative defence of genuinely held honest opinions — whether the defendant's particulars of honest opinion were misconceived — whether the Simunovich decision overruled the CA's statements in Haines — whether the defendant's particulars of honest opinion were misconceived — whether the defendants should be permitted to plead their own alternative imputations for their honest opinion defence.
MF McLelland QC and S Cottrell for Plaintiffs
RKP Stewart and H Coull for Defendants
JUDGMENT OF Toogood J
In this proceeding, Mr Warren Gatland; the Welsh Rugby Union Ltd; Mr Prabhat Mathema and Dr Geoff Davies sue Fairfax New Zealand Limited and Mr Mark Reason in defamation over comments appearing in an article written by Mr Reason which was published by Fairfax in The Dominion Post and on its Stuff website. The article is about the plaintiffs' handling of potential head injuries to a Welsh player, Mr George North, during the rugby international between Wales and England at Millennium Stadium, Cardiff on 6 February 2015.
The defendants deny that the article is capable of bearing the defamatory imputations alleged by the plaintiffs. In the alternative, they rely on the affirmative defence of honest opinion.
The plaintiffs submit that a number of aspects of the defendants' pleadings are impermissible and they have applied for the Court to either strike out the defence of honest opinion, or to order an amendment of the pleadings and particulars. The defendants oppose the application. They have also raised an issue about whether it is permissible for them to plead their own, alternative imputations and defend those imputations as honest opinion.
Mr Gatland, the first plaintiff, is the head coach of the Welsh national rugby team. The second plaintiff is the Welsh Rugby Union (“the WRU”), the national governing body for rugby union in Wales. The third plaintiff, Mr Mathema, is the national medical manager for the WRU. He is in charge of educating Welsh rugby unions on concussions, and is also sometimes part of the medical team at games. The fourth plaintiff, Dr Davies, is the national squad consultant sports physician for the WRU.
The first defendant, Fairfax New Zealand Limited (“Fairfax”), publishes The Dominion Post newspaper and the Stuff news website. The second defendant, Mr Mark Reason, is a sports journalist who writes for Fairfax.
The following account of the relevant facts is taken from the statement of claim. The defendants do not admit either the plaintiffs' allegations about the on-field events giving rise to the article or the steps taken after the match to assess and treat potential head injuries and concussion suffered by players, but I assume for the purposes of this application that the plaintiffs can prove them.
On 6 February 2015>, Wales hosted a rugby match against England at Millennium Stadium. The Wales pitch-side medical team consisted of Mr Mathema and Dr Davies. Their role was to provide an initial assessment and treatment of any injuries suffered by Wales players during the match.
The WRU, at its own initiative, had arranged for an independent match-day doctor and a consultant neurosurgeon to be present at the match. At the request of the WRU, their role was to perform a head-injury assessment (“HIA”) on players from either team required to leave the pitch for this purpose.
Mr Gatland sat in the coaching box during the match. Radio contact was maintained with the pitch-side team personnel via one of the other coaches. This radio communication enabled the coaching staff and the pitch-side team to communicate and receive information, for example, in relation to player substitutions.
About 30 minutes into the match, an English player's boot made accidental contact with the head of a Welsh player, Mr North. Dr Davies treated Mr North on the field, and checked him for the signs and symptoms of concussion. There was no evidence of concussion in this on field assessment. Mr North was then taken off the field for an HIA, which was completed and deemed negative. After this, he returned to the field to play. The only radio communication with the coaching box during this period was to confirm that Mr North would leave the field for the HIA.
At around 60 minutes into the match, Mr Mathema noticed Mr North on all fours and attempting to stand. Mr Mathema, Dr Davies and the independent match-day doctor had not seen what happened to Mr North. Mr Mathema conducted an on-field assessment and found Mr North to be lucid and capable of spontaneous conversation. Because there were no signs or symptoms of concussion, Mr Mathema deemed Mr North fit to play on. The slow motion replay was not available on the field at the time of the assessment.
At no time during the assessment did Mr Mathema receive any instructions or have any contact with Mr Gatland, or any other member of the Wales coaching team, whereby he was told or it was suggested, either directly or indirectly, that he should clear Mr North to play irrespective of his medical fitness.
After the match, Mr North was assessed again by the independent match-day doctor and the consulting neurosurgeon. He showed no signs or symptoms of concussion, but after viewing the footage of the second injury, the WRU medical team, which included Mr Mathema and Dr Davies, decided to treat him with similar care as they would a concussed patient. Mr North therefore had a graduated return to training following further medical assessments.
In the days that followed, the WRU published on its website press releases and statements that followed up on players' injuries and a subsequent investigation by World Rugby as to whether correct procedures were followed. On 10 February 2015, World Rugby issued a public statement on its website clearing the WRU of any misconduct, and stating that the correct procedures had been followed. The plaintiffs say these statements were not read by the editors of The Dominion Post and the Stuff website before the article at issue in this proceeding was published.
On 11 February 2015, Fairfax published an article written by Mr Reason in The Dominion Post and on the Stuff website. The online and print versions of the article are worded identically, although they have different headlines, paragraphing arrangements, photographs and captions. The headline for The Dominion Post version reads “Gatland should pay as concussion rears ugly head”. The online version leads with “Reason: Concussion in rugby rears its ugly head again in Welsh incident”.
In general terms, the article recounts the match events along with a commentary that is very critical of the plaintiffs. The main theme of the commentary is that the plaintiffs wilfully disregarded the safety of Mr North by telling him to play on after he received potentially serious concussions. The article calls for World Rugby to suspend Mr Gatland as the Wales coach for at least one match. The article also says the WRU is bound to cover up any wrongdoing.
Following the publication of the articles, there was some correspondence between the parties' solicitors on 11 and 12 February 2015. On 25 February, the defendants declared that the reference to Mr Gatland telling the players to “play on” was not meant literally, and conceded that World Rugby had accepted the WRU's explanation for what transpired. The “told to play on” reference was then removed from the online version of the article.
On 22 June 2015, the plaintiffs filed a statement of claim alleging that the articles contained untrue and defamatory statements and seeking damages. The statement of claim contains two defamation causes of action: one in respect of the version in The Dominion Post, and another in respect of the online version.
The plaintiffs sue on most of the article, with immaterial exceptions. They plead both causes of action with the same natural and ordinary meanings or false innuendos. Paragraphs 62 to 65 of the statement of claim outline these various imputations in respect of The...
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