Traumatised Gold Coast practitioner wins defamation damages for fake customer review

After discovering who originated a fake customer review intended to deter others from choosing your business, how do you prove the extent of reputational harm and how it has affected your livelihood?

Consider the case of Dr Ces Colagrande – a 20 year Australian trained doctor who trained in plastic surgery in Cambridge has specialist qualifications in  cosmetic surgery – and his medical practice at Mermaid Beach.

The clinic attracted patients from across Australia and overseas in part from the excellent reviews he had received from patients via RateMDs, the largest online rating sites for medical practitioners to which members of the public can post reviews of their experience.

In February 2017 a conviction – which was quashed on appeal a year later – was recorded against the surgeon for indecent assault of a patient.

The successful appeal did not deter an unidentified person posting a review on Rate MDs in December 2018 stating: “After what he did to me, I can’t believe he’s still practicing. Just read the article. www.news.com.au/national/queensland/courts-law/gold-coastplastic-surgeon-ces-colagrande-found-guilty-of-sex-assault-of-stripper”.

The review also gave the doctor 1 out of 5 for each of staff, punctuality, helpfulness, and knowledge.

Dr Ces assumed it had been posted by the former patient who had made the assault allegation. It took him back to “relive the horror” of the criminal trial and conviction making him fear “the patient was not finished in destroying [his] life and reputation”.

He could not sleep and took time off work to avoid making mistakes and was then diagnosed with PTSD in June 2019.

When RateMDs refused to take the post down, he engaged attorneys in California to file a lawsuit there to discover the identity of the person who had posted the review.

Armed with the IP address that was eventually divulged, Dr Ces retained lawyers in Australia to compel Telstra to identify the customer to whom it had allocated that IP address.

Telstra disclosed – as it was required to do by a Federal Court order made in November 2020 – that the customers were Min Sik Kim and Anna Min and that the account was linked to “Dr Mitchell Kim”, another Mermaid Beach cosmetic surgeon.

Relieved his efforts had finally unearthed a culprit, he was “sick to the bone” on discovering it had been a colleague who had created the false review to destroy his practice.

His lawyers promptly issued a Concerns Notice to the pair, the response to which was a denial of all involvement in the slur.

A defamation lawsuit against was filed in the Federal Court in March 2021.

Dr Kim and his wife persisted with their denial of having posted the false review; claimed they had no motive to damage Dr Colagrande’s reputation; and alleged any patients who cancelled their surgery with him had done so without having read the review.

The trial occurred over two days before Justice Jane Jagot in the Federal Court in Brisbane in March.

Dr Ces relied on evidence from Dr Dennis Desmond – a former FBI cyber security expert who lectures at the University of the Sunshine Coast – to interpret the Telstra data.

The cybercrime expert was able to demonstrate that the fake review had been posted on 12 December 2018 at 09:18 AEST using a Samsung mobile device over a Telstra account for which Dr Kim and his wife were the account holders.

Justice Jagot was unimpressed by the contention from Dr Kim – a RateMDs user whose profile recorded him as a “Plastic/Cosmetic Surgeon. Physician” – that his practice was not a competitor to that of Dr Ces.

No explanation was offered as to why neither Dr Kim or his wife gave evidence, allowing the court to draw rule they had jointly participated in the publication of the false review to harm their competitor.

“I consider it proved that the first and second respondent acted in concert to upload the post containing the false review” because they wished to harm the reputation of a perceived commercial competitor.

To reduced his exposure to damages, Dr Kim attempted to undermine evidence from patients who had cancelled their surgery with his rival by suggesting they had read other articles – ie the news article of the 2017 conviction – or that they had only read the Rate MDs review after having been asked by Dr Ces about their availability to give evidence in court.

All but one of the many witnesses called insisted their decision had been due to the “scathing” review – the only one-star review of the surgeon – on Rate MDs.

As one witness explained concerning he and his partner’s thinking: “Mate, if someone is going to leave a – leave a bad review – it doesn’t get any worse than that [the false review] when – when you’re a doctor.”

Not to be deterred, Dr Kim submitted that it “strains credulity” that a person could pass over Google search results of news articles about a conviction of sexual assault “and click instead on a website such as RateMDs, to read reviews written by unknown strangers”.

Not so, said the judge.

“It does not strain credulity to accept that people contemplating having surgery with a doctor or contemplating employing a doctor might be more interested in what other patients say about the doctor than news articles. It was clear that some of these witnesses routinely search the internet for patient reviews of their contemplated doctor, including on the RateMDs website, even if they have previously been happy with that doctor. This is not surprising, let alone incredible”.

The court concluded that Dr Colagrande was seriously re-traumatised by the false review and that his hurt and harm was aggravated by his competitor’s malice in posting the review knowing the conviction against him had been quashed.

His vulnerability in no way exculpated them for the extent of his hurt given their conduct had sought to destroy his character, his reputation, and his livelihood.

The surgeon’s profile page received 70,000 to 180,000 views per month from December 2020 to June 2021.

Noting that the damages cap for harm and reputational loss was $432,500 Justice Jagot ordered the pair to pay Dr Ces $420k plus a further $31k for expenses incurred in identifying the source of the malicious publication.

Dr Ces further submitted an injunction was necessary to prevent the pair re-posting the false review because of their reluctance to remove the anonymous post until September 2021; refusal to admit their wrongdoing or express remorse; and the scandalous allegations in their Defence that were not abandoned until March 2022.

Her Honour agreed. “There is a real risk of the respondents publishing the false review or matter to the same effect unless restrained”.

Dr Kim and his wife were also ordered to pay the claimant’s legal costs of the Federal Court action and interest on damages.

Colagrande v Kim [2022] FCA 409 Jagot J, 21 April 2022

source https://cartercapner.com.au/blog/traumatised-gold-coast-practitioner-wins-defamation-damages-for-fake-customer-review/

Cyclist slams into opening car door: Uber driver responsible for passenger’s actions?

Benjamin Reynolds was cycling a familiar route from Crown Casino at the end of his work day to his home in Richmond on a sunny January evening in 2017.

The Australian Open tennis tournament generated heavy traffic around Rod Laver Arena, through which he was required to navigate.

Without warning, the car door of a stationary vehicle to his right opened into the bike lane causing him to collide into it and to be thrown from the bike, injuring his hands and breaking his left wrist.

The car door which struck the pasty chef’s bike had been opened by a passenger alighting from the rear seat of an Uber rideshare vehicle owned and driven by Anilkumar Patel.

Reynolds’ cyclist injury compensation lawsuit eventually came before the Victorian Supreme Court over two days in March, via Zoom.

The cyclist and the Uber passenger – Stanley Luna – were the only witnesses called.

“Pretty conscious” of the possibility of car doors being opened, it was Reynolds’ practice to be “looking in the side mirrors of cars” and to be prepared for any sign that there was a passenger about to alight.

He explained the collision – having had no time at all to brake or swerve – as if the events were captured in three separate ‘frames’. The first, when he looked down to see wheel was touching the inside of the door; the second when he was airborne over the top of the door; and the third when he saw he had landed on the roadway in front of the Uber.

Luna – on his way to his AO men’s final seat and carrying a knee injury – had been in the rear seat of the Uber car with the crutches he needed for walking.

He saw Patel “click off the ride” on his phone app and asked “Is this okay?” to which question there was no audible reply.

Unaware of any bike lane, he opened the door to get out. Had he been warned of its presence – he swore – he would not have done so.

Patel contended – through counsel – the journey to the Uber drop-off zone near the Arena was incomplete and there was no evidence he knew the passenger was proposing to exit the vehicle at the precise moment the trip had been ended on the app.

Maybe so, but – because driver Patel was not called to give evidence – Justice Andrea Tsalamandris noted she was entitled to draw an adverse inference that his testimony would not have assisted his defence.

The only circumstances in which a driver is responsible for a passenger’s actions – so Patel’s case ran – is where the driver is the parent of a child passenger.

Not so, ruled the court. “I consider the circumstances of this case an occasion where it would be incumbent upon the driver to say something to the departing passenger”.

There was a risk of injury to Mr Luna as he exited the vehicle on to a bike path and “to passers-by and cyclists such as Mr Reynolds”.

Justice Tsalamandris accepted Luna’s failure to look for cyclists was also a cause of the accident.

The driver though, also owed a duty to the passenger – and other road users – to warn Luna of the hazard of the bike lane and also to have activated his indicator signal or hazard lights to warn cyclists such as Reynolds of the passenger’s impending exit from the vehicle.

She rejected Patel’s submission that the cyclist was himself a contributor to the accident, concluding that “he should not bear any responsibility in respect of the accident”.

He was awarded damages which had been agreed between the parties.

Reynolds v Patel [2022] VSC 211 Tsalamandris J, 29 April 2022

source https://cartercapner.com.au/blog/cyclist-slams-into-opening-car-door-uber-driver-responsible-for-passengers-actions/

Inattentive driver not most at fault for pedestrian injury on poorly lit country road

What share of liability should an inebriated pedestrian bear for his injuries if he is struck by an inattentive driver while walking home at night on a poorly lit country road?

That was the question that confronted a court called on to adjudicate the injuries received by 36-yr-old welder, Peter Walker in July 2017.

After he had finished work at about 1:00 pm near Shepparton in Victoria, he returned home to Rushworth to have “a few drinks through the afternoon” before going to the Rushworth Hotel for happy hour at 5:30 pm.

Leaving there at about 8.30 pm he a well travelled route along Station Street – keeping to the edge of the bitumen on the left of the road – to get to his home.

Suddenly “clipped” on his right shoulder by the bull bar of David Smith’s Hilux, he was “swung around” and came down, fracturing his left ankle.

An ambulance eventually arrived to transport Walker to Goulburn Valley Hospital where he underwent an open reduction and internal fixation. Further surgery to the left ankle followed in March 2018 and an arthroscopy in February 2019.

His shoulder and arm  received limited conservative treatment and his ongoing condition included psychiatric consequences. He has not worked since.

Before the inevitable pedestrian injury compensation trial that Smith’s liability insurer contested in the Supreme Court in Melbourne, the parties agreed Walker’s damages at $600k clear of benefits already paid.

Walker swore he did not regard himself as having been intoxicated despite having consumed 16 pots of beer over the course of the afternoon and evening.

He rejected the suggestion he had been unsteady on his feet asserting ‘I was walking quite fine’. Ambulance records reveal he had been observed to be ‘calm/quiet’ and his speech had been ‘clear and continuous’.

His level of intoxication (recorded as an estimate of 16 beers) led however to a reduced dosage of pain relief from the ambulance crew and blood work conducted at the hospital revealed an equivalent BAC of 0.228%.

Smith’s account was that he had only seen Walker when he was about 50 m distant, notwithstanding that he had had his headlight set to high beam.

“He was not walking, rather he was just standing there,” Smith testified from the witness stand.

Justice Jacinta Forbes observed that Smith had been travelling at the relevant speed limit of 60km per hour with no other or competing distraction on a road with “ineffective lighting”.

She concluded that because Walker had only ‘suddenly appeared’ before him – ie Smith had only seen him at the last possible moment – that had been just a fraction of a second before impact.

Smith had though, lapsed denying himself the opportunity to slow and swerve.

“He ought to have remained alert in order to keep a proper lookout given the potential for injury to himself and other road users that may result from any such lapses,” Her Honour ruled.

“While I accept that the actual presence of a pedestrian was unexpected, the reduction in speed limit due to the built-up nature of the town through which the road was passing did indicate that there was a higher incidence of potential hazards than might be found on the open road,” Justice Forbes observed.

That said, she went on to apportion 70% of the responsibility for the accident to the pedestrian!

Walker’s conduct “in my mind is substantial and deliberate behaviour, of greater comparative significance than the lapse in attention that has led to the driver failing to keep a proper lookout”.

That apportionment does not appear to be consistent with Her Honour’s findings.

That said, on the basis of her Honour’s apportionment, the damages awarded to Walker was $180k.

Walker v Smith – [2022] VSC 188 Forbes J, 14 April 2022

source https://cartercapner.com.au/blog/inattentive-driver-not-most-at-fault-for-pedestrian-injury-on-poorly-lit-country-road/

Unfulfilled brochure promises cost Rhine River tour operator $30 mil in cruise passenger claims

The first step of the process to assess damages for 1,300 European river cruise passenger claims in a class action that was upheld by the High Court in April 2020, has been completed in the NSW Supreme Court.

David Moore – as representative of the class – sued Scenic Tours for  “disappointment” resulting from his June 2013 luxury Rhine River cruise being ruined by disruption to the itinerary from severe flooding and record summer rainfall.

Not all thirteen cruises were disrupted to the same extent but typically “cruising” was only possible on one or two days out of a 12-day itinerary. Passengers were instead, bussed – often uncomfortably – over long distances further along the Rhine to meet up with their vessel at night to eat and sleep.

They were exhausted rather than rested – unable to relax or enjoy the promised on-board fine dining and ambience – and were sometimes accommodated on very short notice in hotels or on different vessels, necessitating packing and unpacking each day.

The cruise operator had – Moore successfully asserted – breached its statutory guarantees in relation to its supply of services mandated by Australian Consumer Law ss 60 and 61.

Justice Peter Garling – whose also conducted the original trial in 2017 – concluded the group members had impliedly made known to Scenic the purpose for which they acquired the services was to enjoy an all-inclusive five-star luxury river cruise with the features and benefits of the services promised in the tour brochure.

And the results they had made known they wanted to receive from their cruises, were the services promised in that brochure.

Scenic argued though that it should be exculpated from the s 61 (1) guarantee – the fitness guarantee; and the s 61 (2) guarantee – the results guarantee – because in the circumstances and by operation of s 61 (3), the passengers “did not rely on” or “it was unreasonable for them to rely on” its “skill and judgment”.

Each passenger knew – it contended – that “the inherent risks of travel” meant they might never receive the promised benefits.

Not so, ruled His Honour.

“On the contrary, the passengers were enticed by the brochure to do nothing other than to arrive at the port of embarkation and enjoy all that followed on their entirely unforgettable journey of a lifetime”.

“I am well satisfied that each group member was entitled to,” he ruled “and did rely on the skill and judgment of Scenic to provide the services sufficient to achieve the purpose and result guarantees”.

Justice Garling also refused to give weight to a liability exclusion clause because the small font size of the hard to read clause “buried on a three-column page layout” as compared to effusive, plain language of promotional statements that were far more prominently displayed.

“In my view, no group member nor any reasonable consumer would have thought to (nor could be expected to) read the Terms and Conditions so as to find out that they could not rely on Scenic’s skill and judgment to provide the services on the Cruise”.

And a clause entitling Scenic to not operate, cancel or delay a cruise “if anything” suggested it would exercise its skill and judgment about when and whether to operate a cruise.

Moore and his fellow pax claimed “compensation for the reduction in value of the services below the price paid” pursuant to ACL s 267(3)(b) given the breaches had been a “major failure” of the statutory guarantees within the meaning of s 268.

Although there was evidence that a fully the court ordered refunds of between 40% – 90% of the price paid by passengers – depending which  cruise each passenger had embarked upon and the extent of disruption to that cruise – be allowed.

He then turned his mind to the methodology of assessing damages for disappointment.

Disappointment is – noted the judge – a shorthand description of “disappointment, distress, upset and frustration caused by the unfulfilled promise of a happy, joyous, peaceful and contented holiday”.

The fact that passengers had been conveyed along the holiday route was of no value if all the facilities promised were undelivered.

Each passenger was entitled to damages for the absence of the promised facilities and for loss of enjoyment that had been long in anticipation.

Firstly by dreaming – “during which a person thinks about holidays and starts to actively consider where to go, a phase that can take place over many years”.

Secondly by planning – “where a person starts collecting information and seeking recommendations, speaking to people and researching online”.

And thirdly by booking and the heightened anticipation that follows.

“As the holiday approaches, the traveller may undertake more research on their holiday destinations and the closer they get to their holiday, the more their excitement and anticipation increases”.

Scenic endeavoured to persuade the court – by calling evidence from other passengers who were disturbed by all of the disruption – that the disappointment reported by the group members was disproportionate.

Accepting that those witnesses testified honestly, Justice Garling was of the view that “their evidence does not have any ameliorating effect when assessing the damages for distress and disappointment in the case of each claimant”.

He went on to note that damages for distress and disappointment are able to be assessed at large, unconstrained by the NSW CLA and should not be awarded merely in a token or nominal sum.

Rather, damages had to be assessed on a case-by-case basis after evaluating each passenger’s particular circumstances, one feature of which was the extent of disruption to their particular cruise.

The amounts awarded to 31 of the passengers on different cruises – each with different stories to tell as what they had been looking forward to and how the unfulfilled promises had affected them – ranged from $6,000 to $12,000.

Given that the great bulk of the distress and disappointment occurred – in His Honour’s view – during the and immediately after the cruise finishes, interest was awarded on 90% of the sums allowed from the last day of the cruise until judgement.

Those passengers whose sole or dominant purpose of travelling to Europe to join the cruise were also entitled to 100% recovery of their air travel costs. On the other hand those who spent a significant additional time in the region for other purposes, will recover a much smaller proportion.

For all 1,300 passengers at an average payout of $8k per pax plus interest for 8 years, the total damages for disappointment only, is likely to be north of $15 mil. Tour price refunds and airfare reimbursement – with interest – will likely exceed that figure.

Moore v Scenic Tours Pty Ltd (No.4) [2022] NSWSC 270 Garling J, 14 April 2022

source https://cartercapner.com.au/blog/unfulfilled-promises-long-in-anticipation-cost-operator-30-mil-in-cruise-passenger-claims/