Earlier this year the Supreme Court of New South Wales awarded a ringside physician $385,000 in total damages after publications were written suggesting he was incompetent in allowing a boxing bout to proceed after an alleged concussion.
In the recent case (O’Neil v. Fairfax Media Publicaitons Pty Ltd (No 2)) the Plaintiff was the ringside physician for a boxing contest between Anthony Mundine and Danny Green in 2017. Early in the bout Green was struck by what was later determined to be an illegal blow. The blow caused him to fall down and appear at least momentarily stunned. The Plaintiff “took approximately 50 seconds to form the view that Mr Green was not concussed, 25 seconds of which was the actual assessment face to face. The time between the blow, Dr O’Neill’s assessment and the recommencement of the fight was approximately 65 seconds.“. The bout continued and ultimately Green went on to win the bout via decision.
The illegal blow and its consequences were described the by trial judge as follows:
The referee is heard to say “let him go, let him go, let him go”, whereupon Mr Green releases his hold while facing away from Mr Mundine. At that point, Mr Mundine draws himself up and throws a punch from behind, swinging his arm under Mr Green’s underarm and striking him hard to the left side of his face. Footage taken from an aerial view shows that the force of the blow pushed Mr Green’s head sideways and pushed him off balance. He is seen stumbling backwards towards the ropes on the other side of the ring, assisted by the referee. Slow motion footage shows him with a stunned facial expression as he utters an unsurprising expletive. He slumps against the ropes then drops briefly towards the floor, squatting on one leg with the other leg forward before getting to his knees and then standing up unassisted. As he stands up, the referee (who looks to be about half the size of Mr Green) places one hand on either side of Mr Green’s chest but he does not appear to exert any force so as to assist Mr Green in recovering his vertical stance. Mr Green then walks unassisted to the adjacent side of the ring and stops with his forearms resting lightly over the ropes.
The Defendants published an article suggesting that this blow led to a concussion and that the ringside physician was wrong in not making this diagnosis and was careless in allowing the bout to continue. Specifically the articles noted
“Which brings us to the Mundine/Green fight in Adelaide last Saturday night, nominally won by Green, though lots of judges deem Mundine the rightful winner. I don’t know, and I don’t care.
As many times stated, l had no desire to see two good men, let alone men over 40, try to batter the other’s brain stem to the point that the other would sink into unconsciousness and suffer brain damage while the crowd roars for more…
… There was, in demonstrable fact, such obvious brain damage on the night, that a qualified judge wanted it stopped. When Mundine hit Green with a foul blow in the first round, Green went down like a shot duck and the two ring side doctors crowded into the ring to confer with the referee.
One of them, Dr Lou Lewis, who had been doing this for four decades, had no doubts. Green was concussed. And he was right, as confirmed by Green afterwards. ‘I didn’t know if l was Arthur or Martha,’ he said. Well, Lewis knew exactly who he was. He was a boxer with a bleeding brain, and it was dangerous for him to continue. His job was to pull the fight. And so, ignoring Green – who kept telling the ref, ‘Let’s fight, let’s fight, I’m good to go’ – Lewis stepped up and said to the ref, ‘the fight should be stopped, I don’t want it to go on…’
The ref didn’t react.
‘Are you stopping the fight?’ Lewis asked, incredulous. The referee, with the backing of the other doctor, said ‘No…’ and indicated the fight could go on.
‘I’m having nothing more to do with this fight,’ Lewis said, and walked out, doing the right thing. At this point, Green’s head was in Zone Red.
‘Another serious blow when he’s already concussed, it is no exaggeration to say, could have been fatal,’ Dr Michael Gannon of the Australian Medical Association, was quoted later by the ABC.
And so there you have it. A bloke with a bleeding brain was allowed to continue, risking his life, even though that one experienced ring-side doctor wanted it called off!”
The Plaintiff successfully sued for defamation. The Court found that the doctor was not negligent in not diagnosing a concussion, that a concussion in fact did not occur and that the above article wrongly criticized and improperly questioned the competence of the Plaintiff.
The full case is an interesting read as it delves deep into the present medical understanding of exactly when a concussion occurs and what is needed to make the diagnosis. For those interested in this discussion I suggest reading paragraph 130-185 of the decision.
In finding the Defendants article defamatory and in assessing damages at $385,000 Justice McCallum provided the following reasons:
In my view, the defamatory sense of the article as captured in Dr O’Neill’s imputations was clearly conveyed as fact rather than as an expression of opinion. Indeed, in my respectful opinion, the contrary view is barely arguable. The article included the statement that “Danny Green suffered bleeding on the brain against Anthony Mundine…”; that he was “a boxer with a bleeding brain…”; that “there was, in demonstrable fact, such obvious brain damage on the night…”; and that “one of [the ringside doctors], Dr Lou Lewis… had no doubts, Green was concussed”; adding “and he was right, as confirmed by Green afterwards.”
In my view, those assertions would clearly be understood as statements of fact, and alarming fact at that, forming the premises for Mr FitzSimons’ strident opinion…
Dr O’Neill submits that this case warrants an award at the cap for defamation proceedings. He submits that this is a mass media case of the most serious imputations against a professional.
Had Dr O’Neill been named in the matters complained of, I would accept that an amount at the top of the range should be awarded. I am nevertheless satisfied that this was a very serious defamation. The damage clearly spread among Dr O’Neill’s colleagues and friends potentially damaging his reputation irreparably in some quarters. I reject the matters in mitigation relied on by the defendants for the reasons above.
Taking those matters into account, I would assess Dr O’Neill’s damages in the amount of $385,000. I have reached that amount by awarding $350,000 in general damages and adding 10% for aggravated damages.
It will be necessary to hear the parties as to injunctive relief and costs.
I order that judgment be entered for the plaintiff in the sum of $385,000.