Advanced Health Directives

What are they?

An Advance Health Directive is a device created by the Guardianship and Administration Act 1990 (WA).  

In other jurisdictions they can be known as ‘Advance Care Directives’.

An Advance Health Directive is a written document which explains how you wish to be treated in the future should you be incapable of making informed decisions. They are the first port-of-call when a patient lacks capacity to consent to medical treatment. You can set out what treatments you consent to, or refuse to consent to, and how you would like to be treated. 

How do you make an Advance Health Directive?

An Advance Health Directive must be in the form prescribed by the Guardianship and Administration Regulations 2005. You must be of full legal capacity to make an Advance Health Directive and the legislation specifically encourages persons to seek legal advice (Guardianship and Administration Act 1990 (WA) ss 110P and 110Q(1)). 

It is important to have legal advice when making an Advance Health Directive as any treatment decision in the document is invalid, if (Guardianship and Administration Act 1990 (WA) s 110R):
-    the decision was not made voluntarily; 
-    the person was coerced into making the decision; or
-    the person didn’t understand the nature of the decision or the consequences when they made the Advance Health Directive. 

A legal practitioner can help by ensuring you are fully informed, and understand the nature and consequences of the decision, as well as making sure you make the decision voluntarily and are not coerced. 

Challenging an Advance Health Directive

Advance Health Directives are at the top of the hierarchy when it comes to deciding treatment. For example, if a person who is incapable of making treatment decisions has a valid Advance Health Directive, and has a guardian appointed, the Advance Health Directive will prevail. Therefore, it is frequently the case that Advance Health Directives come under challenge. 

In Hunter v New England Area Health Service [2009] NSWSC 761  the plaintiff sought declarations that it was justified in complying with the unconscious defendant’s wishes to refuse life-sustaining treatment, relying on a valid advanced care directive. 
It was held that:
-    If there is a genuine and reasonable doubt as to the validity of an advance care directive, a hospital or medical practitioner should apply promptly to the court for determination of the validity and operation of the advance care directive. 
-    The emergency principle justifies the hospital or medical practitioner to continue treatment until the decision of the court. 
-    An apparently valid consent by a capable adult may be ineffective if it does not represent the independent exercise of the person's volition; if the person's will has been overborne; or the decision is the result of undue influence or some other vitiating circumstance. 

What if there is already a public guardian?

In FI v Public Guardian [2008] NSWADT 263  the tribunal had to consider where the public guardian could approve an Advance Care Plan which permitted life-sustaining treatment to be withdrawn. It was held that the public guardian cannot make an Advance Care Plan for a represented person. However, a guardian can make decisions that involve withdrawing life-sustaining treatment so long as the decisions are made in the best interests of the represented person. 
 

Defamation in the workplace

If you have been defamed at work you may be entitled to compensation for defamation.

Generally, statements made at work are no different to any other statement.

If somebody defames you at work, whether by saying something to other colleagues or co-workers, or to clients or to your boss, either in person or in a defamatory email or otherwise, you may have a case in defamation and be able to seek damages. 

Defamation at work is generally only protected where a valid defence under the Defamation Act 2005 (WA) is available.  

The most common defence in workplace defamation situations is the defence of qualified privilege. 

Qualified Privilege

A defamatory statement, however, if made to a superior, or to a HR person as part of a formal complaints or investigation process, then it may be protected. 

This is because qualified privilege attaches to statements where the recipient has an interest in having the information, and the statement is made while providing that information, if the person acted reasonably in the circumstances (Defamation Act 2005 (WA) s 30(1)).

So a statement made concerning a persons’ performance for instance, if made to a superior and appropriately in order for the superior to be able to assess that person’s performance or investigate further is likely to be protected. 

In Boland v Dillon (2011) 243 CLR 298  the High Court of Australia decided that in some cases there are duties to advise the company of accusations against a company employee or to discuss activities by an employee or client which might be detrimental to the company or affect the efficiency of the company’s business. In these circumstances, the defence of qualified privilege might be available. 

However, if the person acted maliciously and intended to injure your reputation then they will not be protected by the defence (Defamation Act 2005 (WA) s 30(4)). 

Examples

There have been many cases where a person has been defamed in the workplace by a co-worker and has recovered damages. 

In Bristow v Adams [2012] NSWCA 166  the Court found that a letter sent to the HR manager of the company contained defamatory meanings about a supervisor, and awarded $10,000 damages. 

In Tassone v Kirkham [2014] SADC 134  an email was sent by one prison officer using another prison officer’s email which read “Hello people, just a note to say that I am a homosexual and I am looking for like-minded people to share time with”. The plaintiff went on sick leave, suffered stress and anxiety and was unable to continue in his position. He was awarded $75,000 for non-economic loss.

Publication & Republication

Who was the defamation published to?

To give rise to a cause of action in defamation the defamatory imputation must have been published to a third party.

The Defamation Act 2005 (WA) does not define ‘publication’.

Under the common law, publication takes place when defamatory material is communicated to some person other than the plaintiff (Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327).  

The third party may consist of a single person (Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 at 367).  

For instance in Ritson v Burns [2014] NSWSC 272 the proceedings were brought in respect of a single comment made by the defendant to a third person.  The statement in question was made over the phone to a process server and were along the lines of “X is a criminal, I’m not going to give you my address”. This was enough to warrant an award of $7,500 damages. The plaintiff was also awarded costs, and interest on the damages.

It has even been held that communication by a third party of defamatory material about one spouse, to the other, can constitute sufficient publication (Theaker v Richardson [1962] 1 All ER 229).  

How was the defamation published?

If the defamatory imputation was published online, it will be deemed to have been published if the plaintiff can prove information has been conveyed (Dow Jones & Co Inc v Gutnick [2002] HCA 56).  

In Dow Jones & Co Inc v Gutnik the plaintiff showed that the information was conveyed once downloaded from the website it was uploaded to. In Gregg v O’Gara [2008] All ER (D) 111 the fact that one witness testified that he had accessed the material by typing the words ‘Yorkshire Ripper’ into a search engine was sufficient to show the material had been published.  If the person is not named, they may need to provide a witness who believed the published material was about them.

Even if the publication was unintentional, if it occurred because of the publishers’ negligence then this may still constitute publication (Coulthard v South Australia (1995) 63 SASR 531 at 539).  

Anything from spoken words, to printed or audio files, to internet pages, televised material, drawings or photos may constitute communication for the purposes of publication (Defamation Act 2005 s 4). However, the circumstances of the publication, including the mode, and the scope of the publication are relevant when assessing the award of damages.

Therefore, it is essential to obtain legal advice if you are concerned about a publication that has been made about you, or about a publication you are responsible for. 

Has ‘Republication’ occurred? 

In addition, the republication of somebody else’s defamatory statement constitutes a new and actionable defamatory publication, and the person who republishes is as liable as the original publisher (Lewis v Daily Telegraph Ltd [1964] AC 234 at 283, 284).  

It is no defence that the re-publisher is merely repeating a statement.

In certain circumstances the person who made the original publication can also be held to task for any republication of it. This is known as the ‘Rule in Speight v Gosnay’ whereby the original publisher is liable if the republication adheres to the sense and substance of the original publication and the repetition is the natural and probable consequence of the original publication (Speight v Gosnay (1891) 60 LJQB 231; Sims v Wran [1984] 1 NSWLR 317 at 320 per Hunt J).

How do Courts decide your defamation damages?

Uniform defamation legislation exists across the states. In Western Australia, the relevant act is the Defamation Act 2005 (WA).

Where a person’s reputation is injured by the publication of defamatory material the matter is actionable without proof of damage (Defamation Act s 7).  

However, the cause of action is generally not available to corporations (Defamation Act s 9).

Under the uniform defamation laws the offence is actionable once a communication of a defamatory imputation about a person is made to a person other than the plaintiff. This is usually described as publication. A publication is defamatory if it tends, in the minds of ordinary, reasonable people, to injure the victims’ reputation by disparaging him/her, causing others to avoid or shun him, or subjecting him to hatred, ridicule or contempt (John Fairfax & Sons Ltd v Punch (1980) 31 ALR 624 per Brennan J; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 71). 

Therefore, while the plaintiff does not have to prove any special damage to their reputation, they do carry the onus of having to prove that a defamatory imputation was published and provide particulars of the publication (Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 192-4 per Hunt J).

What are the potential damages?

Once the plaintiff shows that they have been defamed, then unless a defence is shown, they must be awarded damages, even if only nominal (Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 258 per Mahoney JA).

The legislation provides that the state of mind of the defendant is not relevant to damages except insofar as it affects the harm sustained by the plaintiff (Defamation Act s 36).

Damages for non-economic loss, except in circumstances of aggravation, are capped at $381,000 (Defamation Act s 35; Defamation (Damages for Non-economic Loss) Order 2016).

There must be an appropriate and rational relationship between the harm sustained and the damages awarded (Defamation Act s 34). Exemplary or punitive damages cannot be awarded for defamation (Defamation Act s 37). However, compensatory damages may be affected by circumstances of aggravation.

Factors which may mitigate damages are (Defamation Act s 38):

1. The defendant has apologised

2. The defendant has published a correction;

3. The plaintiff has already recovered damages re another publication having the same meaning or effect;

4. The plaintiff has already brought proceedings re another publication having the same meaning or effect;

5. Plaintiff has agreed to receive compensation re another publication having the same meaning or effect.

Damages are not assessed by reference to depreciation in the value of a plaintiff’s reputation, but by what is required to compensate for injury to reputation, as a remedy for injured feelings and to vindicate the plaintiff for having been publicly defamed (Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60, 61, 70). Under the uniform defamation laws. The assessment of damages is determined by the judge not jury (Defamation Act s 22).

Compensatory damages are classified as damages for:

1. Injury to reputation, note that evidence of previous bad reputation may mitigate damages however will not prevent a plaintiff from recovering completely (see Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 Cf. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 806, 807);

2. Social damage for being shunned and avoided;

3. Injury to feelings, including grief and distress, anxiety, loss of self-esteem and outrage;

4. Injury to health; and

5. Special damage.

Some recent cases

In Dods v McDonald (No 2) [2016] VSC 201 the plaintiff was a police officer involved in the shooting death of a 15 year old boy. In a coronial inquest the coroner exonerated the plaintiff of personal responsibility and found that he had not contributed to the death, and had responded within the limitations of his training. The defamatory publications were made by the defendant via a website and were published from April 2012 until July 2012 when they were removed by request. They contained imputations that the plaintiff was a ‘monster’ who had ‘executed’ the teenager and committed the crime of manslaughter. Even though the scope of the publication was not large, there was no apology, and the grave nature of the defamations was reflected in the damages awarded (at [69] – [74]). The judge awarded damages of $150,000.

In Jeffrey v Giles [2015] VSCA 70 the appellants operated a quarry adjacent to the respondents’ land. The respondent created a website which contained defamatory imputations that the appellants had provided inaccurate information and given false testimony at hearing in relation to approval of the quarry. The judge at first instance found that the appellants were entitled to damages personally, distinct from the corporate entity which ran the quarry, due to the nature of the imputations. The judge awarded $12,00 and $8,000 to each of the appellants. On appeal, the Court of Appeal found that the damages were so low as to be inappropriate, and ordered damages of $75,000 and $65,000 to each appellant.

In Gacic v John Fairfax Publications Pty Ltd [2015] NSWCA 99 and online and in-print review of the appellant’s restaurant was found to be defamatory by implying it sold unpalatable food, provided bad service, and that the owner was incompetent. The three appellants were originally each awarded $160,000 plus interest. There was an appeal that the damages awarded were manifestly inadequate and a cross-appeal that the damages should be reduced for mitigation. Ultimately the Court of Appeal held that damages should be increased to $180,000 plus interest, however by virtue of the cross appeal, they should be then reduced to $175,000 plus interest to take into account the mitigation factors.

As the range of damages awarded vary widely on a case by case basis depending on the factual circumstances it is wise to obtain legal advice at the outset.

Facebook defamation

Have you been defamed on Facebook?

Being defamed on Facebook is horrible.

You should consider issuing a concerns notice and commencing a Court case, in order to protect your reputation.

A previous decision

In 2014 the District Court of Western Australia handed down a decision, finding in favour of a plaintiff in a Facebook defamation case.

In Dabrowski -v- Greeuw [2014] WADC 175 the facts were that:

1. The parties were a separated husband and wife.

2. In December 2012 the defendant (the wife) posted on her public Facebook page an entry saying 'separated from Miro Dabrowski after 18 years of suffering domestic violence and abuse. Now fighting the system to keep my children safe'. 

3. The Judge found she had admitted that she posted the Facebook post. 

4. It was removed 4 months later, in February 2013.

At [183] the Judge stated:

To say that a person has for 18 years subjected their partner to domestic violence and abuse and that their children need to be kept safe from that person, tends to diminish the esteem in which that person is held by the community and/or diminish his standing in some respect and would lead an ordinary reasonable person to think lesser of that person and is defamatory.

The Judge decided that:

[248] Pursuant to s 7 of the Defamation Act, Mr Dabrowski is not required to prove special damages. Section 34 of the Act requires that any damage awarded have an appropriate and rational relationship to the harm actually suffered. The damages must be realistic.

[249] I have found that Mr Dabrowski was defamed. Mr Dabrowski has not claimed any consequential financial loss. Damages are appropriate.

The Judge award the plaintiff (the husband) $12,500, as well as interest on that money and also his legal costs.

The takeaways from the case

1. We should not feel powerless or in a weak bargaining position when someone defames us on Facebook, because it is realistic to go to Court over it.

2. You should hire lawyers like me, who are conscious of the realities of legal costs (and) who will manage the case so that decisions are made along the way that maximise the recovery of legal costs from the other side.

Overview of what a 'concerns notice' is in defamation law in Western Australia

Uniform defamation legislation is in place across Australia to promote speedy and non-litigious methods of resolving defamation disputes (Defamation Act 2005 (WA) s 3(d)).

   The first step in a defamation proceeding is for the victim of defamation to issue what is known as a concerns notice.

   The issuing of a concerns notice provides an avenue for the parties to resolve the matter without resorting to formal legal proceedings.

   A concerns notice is the document which outlines exactly what defamatory statements are alleged to have been made, when the statements were made, who they were published to, what defamatory imputations can be drawn from the publication, and what amends are requested.

   The purpose of a concerns notice is to set in motion the offer to make amends set out in Part 3 of the Defamation Act 2005 (WA).

For a notice to be a concerns notice:

1. It must be in writing (Defamation Act s 14(2)(a)); and

2. It must inform the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question (Defamation Act s 14(2)(b)).

    When a person receives a concerns notice they may request particulars of the defamatory imputations if they either haven’t been provided or haven’t been provided adequately (Defamation Act s 14(4) & (5)).

    Alternatively, a statement of claim will operate as a concerns notice for the purposes of the Defamation Act if it complies with the requirements of s 14(2) (Zoef v Nationwide News Pty Ltd [2016] NSWCA 283, [92]).

   Once a person has been issued with a concerns notice then the publisher has 28 days to make an offer to make amends (Defamation Act s 14(1)(a)).

   It is implicit in the construction of s 14(1) of the Defamation Act that a person has a reasonable period of time to respond to the content of a concerns notice (Douglas v McLernon (No 4) [2016] WASC 320, [262]).

   In some cases, it may be that after the expiry of a reasonable period of time to respond, the person in receipt of the concerns notice can be taken to have been aware of the existence of the alleged publications, and the concerns notice could even function as evidence to that effect (Douglas v McLernon (No 4) [2016] WASC 320, [262]).

   If the person could put a stop to ongoing publication (by another person), then an inference may be drawn in certain circumstances that the person then either acquiesced or participated in the publication from that point on.