The background
Dr Nettle, a highly regarded and successful plastic and reconstructive surgeon, commenced proceedings against a former patient, Ms Cruse, alleging that she had defamed him in four separate publications. The four publications alleged relevantly that Dr Nettle:
- prioritised his own financial gain;
- was unethical and a compulsive liar;
- failed to preserve patient confidentiality;
- was careless, incompetent and a danger to patients; and
- abused his position of power.
The third publication, arguably the most damaging, included disturbing images of “botched” plastic surgery supposedly attributed to Dr Nettle as well as photographs of Dr Nettle with superimposed phrases such as “abuse of power” and “compulsive liar” over the images.
In reality, Dr Nettle had limited involvement with Ms Cruse, and at no point did he perform any surgery or other procedure on her after he was contacted by another practitioner who cautioned him about operating on Ms Cruse.
Dr Nettle ultimately decided not to treat Ms Cruse who then initiated a “sustained, far-reaching and virulent” attack on Dr Nettle in the four publications, which were calculated to “inflict maximum damage on Dr Nettle’s professional reputation”. Although the publications were anonymous or posted under fake names, it was clear in the circumstances that the publications were published by Ms Cruse.
After a settlement agreement signed by both Ms Cruse and Dr Nettle to prevent further negative reviews was ignored, Dr Nettle commenced the defamation proceedings. However, Ms Cruse essentially disappeared and did not file a defence to the proceedings or appear at any hearings.
The outcome
Although Dr Nettle was entitled to apply for default judgment against Ms Cruse, he elected to proceed with the hearing and adduce evidence at trial, including affidavits from himself, his wife, patients and several other doctors.
All the elements of the tort of defamation were made out in respect of each of the four publications, and it was clear that at least one person had read each publication, from which it could be inferred that the publications were read by others.
Importantly, Dr Nettle was able to demonstrate an adverse impact on his reputation after evidence was submitted that his five-star Google review rating had fallen to 3.5 stars after the publications.
There was also a clear and demonstrable decline in Dr Nettle’s workload following the publications. The affidavit of one patient provided evidence that prior to the publications she believed that Dr Nettle had an outstanding reputation, but she felt that she could no longer trust Dr Nettle after seeing two of the publications. From this patient’s evidence it was inferred that other patients had a similar reaction.
On the basis that damage caused to such a highly valued reputation should attract a commensurate award of damages, Dr Nettle was awarded $450,000.00 inclusive of an award of aggravated damages for the “malicious and calculated” attack. Dr Nettle was also granted a permanent injunction against Ms Cruse to prevent her from positing further negative reviews.
However, Dr Nettle may have difficulty in pursuing any of the award or his costs from Ms Cruse in circumstances where she has gone to ground and evaded service in these proceedings.
The implications
This case joins the growing case law that has sided with practitioners whose reputations have been tarnished by negative reviews and publications.
However, despite this trend, we offer a note of caution to practitioners who are considering defamation proceedings. Defamation proceedings remain a costly exercise, and as the case makes clear, it is unlikely that a successful plaintiff will receive the damages awarded to them.
To read the decision in Nettle v Cruse [2021] FCA 935, click here.
Authors: Prue Campbell and Morgan Barnsby.
