|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Garcia v Associated Newspapers Ltd  EWHC 3137 (QB) (06 October 2014)
Cite as:  EWHC 3137 (QB)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Jose Antonio Serrano Garcia
|- and -
|Associated Newspapers Limited
Desmond Browne QC and Alexandra Marzec (instructed by Reynolds Porter Chamberlain LLP) for the Defendant
Hearing dates: 21, 22, 23, 24, 25, 28, 29 and 31 July 2014
Crown Copyright ©
Mr Justice Dingemans :
"A whole year of hell, thanks to a foreign doctor"
(1) Last week, I raised the uncomfortable issue of foreign doctors working in this country, and targeted the offensive behaviour of a Spanish consultant. I have since received, and investigated to my satisfaction, an even more shocking case.
(2) Bus driver Kevin Jones, ages 53, turned up with his wife Samantha, to see Dr Antonio Serrano, a Spaniard, at his surgery in St Leonards-on-sea, East Sussex.
(3) Mr Jones was suffering pain from swollen legs. Almost immediately the doctor diagnosed gout and asked how much he drank. He said he might have a pint or two after work and if he went out with his wife and friends at the weekend, a couple of spirits.
(4) When he discovered Mr Jones drove a bus for a living and had done for 30 years his attitude changed and, without any research into any kind of alcohol dependency such as liver or blood tests he said he would write to the DVLA to have his licence revoked.
(5) Mr Jones told me: "This is where the language barrier hit home. He took it that I drank every night, and when I tried to explain, he wouldn't listen and just spoke over me"
(6) Several days later, Dr Serrano wrote to the DVLA. Mr Jones asked to see another doctor at the surgery, who agreed to send Mr Jones for blood, liver and kidney test over a six week period, all of which showed that Mr Jones was not alcohol dependent.
(7) By now, though, Mr Jones had been signed off sick by his employers Countryliner.
(8) Astonishingly without asking for any evidence, the DVLA took the doctor's word and revoked not only his bus driver's licence but also his car and motorbike licence.
(9) Mr Jones, who earned £17,000 a year, says: "It was a living hell. I could not persuade the DVLA that I was not alcohol dependent, and the only person who could get it revoked was Dr Serrano, who refused to do so."
(10) By July last year, Mr Jones resigned from the bus company while he battled to clear his name. He had seen other doctors who, although they could not rule out gout, said it was most likely he had arthritis.
(11) Desperate, Mr Jones returned to his local MP, Tory Amber Rudd, who represents Hastings and Rye. She was appalled at his treatment and contacted the DVLA on his behalf.
(12) A few months ago the DVLA brought in an independent doctor to carry out tests on Mr Jones, which showed no trace of alcohol dependency.
(13) As a result, the DVLA returned all his licences to him and at the beginning of the week having got his job back Mr Jones restarted work, happily driving his passengers around the St Leonards area.
(14) He says: "Doctors talk about patient confidentiality but how is it right that this man could write to the DVLA and, without any evidence whatsoever, suggest I was alcohol dependant, which robbed me of my livelihood?"
(15) A DVLA spokesman confirmed that Mr Jones's licence to drive a bus and his private licence were revoked purely on the strength of the letter from Dr Serrano. He said: "In some cases we can do further investigation, but as we had a doctor's letter we felt this was enough justification."
(16) I made several attempts to contact Dr Serrano, who said at first he could not discuss the case on the grounds of patient confidentiality, but then said if Mr Jones gave his written permission he would discuss it.
(17) A copy of this permission was faxed through to his surgery but then Dr Serrano said he could only talk about it in the 'framework of a legal medical framework'. When asked what that meant, he claimed he could not hear because of background noise on his phone.
(18) Its not clear if Dr Serrano's accent was a problem, but Mr Jones has suffered a nightmare, when all he wanted was treatment for swollen legs. I will be grateful if Dr Serrano would discuss the case with me. I won't be holding my breath."
(1) What are the defamatory meanings of the article;
(2) Whether the defamatory meanings of fact can be justified, or sufficiently justified;
(3) Whether any defamatory comments can be defended as honest comment;
(4) If not, whether damages, including aggravated damages, should be awarded and if so in what sum. The issue about aggravated damages raises a legal point of some importance.
(a) The Claimant was a particularly shocking example of foreign doctors working in the NHS who, for reasons deriving from their being foreign, are seriously incompetent, inadequate or otherwise unacceptable.
(b) The Claimant's inadequate grasp of the English language and incompetent failure properly either to listen to or to examine or to carry out any tests on or research the medical history of a bus driver patient had resulted in his wrongly diagnosing the patient as suffering from gout, as drinking too much alcohol and as being alcohol dependant.
(c) The Claimant had unnecessarily and uncaringly asked the DVLA to revoke the patient's driving licence because he was alcohol dependant, when there was no evidence whatsoever that the patient was, with the result that the patient had unnecessarily lost his driving licence and his livelihood as a bus driver.
(d) The Claimant had thereafter uncaringly refused to help the patient recover the driving licence of which he had wrongly robbed him, despite being the only person who could have achieved this.
(e) By this appalling treatment the Claimant had unnecessarily caused the patient and that patient's family to suffer a year-long living hell.
(f) When challenged by Mr Mackenzie, the Claimant had unjustifiably tried to hide behind his obligation of confidentiality to the patient and other specious excuses to avoid and put off Mr Mackenzie's investigation and exposure of his appalling conduct.
The Defendant's meanings
(a) Wrongly and inappropriately, without due regard for his patient's, Kevin Jones's, welfare, rights or feelings, and without doing proper or adequate testing and/or investigations, diagnosed Mr Jones, as being an alcoholic and unfit to drive;
(b) following such diagnosis, wrongly, inappropriately, unnecessarily and uncaringly, without Mr Jones's consent, and despite knowing that Mr Jones was a professional driver, notified the DVLA that Mr Jones was unfit to drive because of alcohol misuse and thus caused Mr Jones's driving licence to be revoked by the DVLA, as the Claimant knew or must have known it would be;
(c) had thereafter failed to help Mr Jones to get back his licence, even though he was the only person who could have helped by correcting his report to the DVLA;
(d) had thereby not only wrongly and unlawfully breached patient confidentiality but also caused Mr Jones to lose his licence for a year, and had unnecessarily caused Mr Jones and his family to endure a year of "living hell" and a year's lost income; and
(e) That the Claimant's behaviour towards Mr Jones was shocking.
(f) The Claimant's misdiagnosis was caused or contributed to by the "language barrier", that is, the fact that he was not a native English speaker, or there are reasonable grounds to suspect that is was.
(g) In his conduct as set out above, the Claimant had fallen below the standard of care expected from a reasonable medical practitioner.
(h) Further, when challenged by the Defendant before publication of the article, the Claimant had been evasive and unjustifiably tried to hide behind his obligation of patient confidentiality in order to avoid answering questions about his conduct and to put off the investigation and the exposure of his misconduct.
Relevant legal principles and statutory provisions
"The legal principles relevant to meaning may be summarised in this way:
(1) The governing principle is reasonableness.
(2) The hypothetical reasonable reader is not naοve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.
(3) Over elaborate analysis is best avoided.
(4) The intention of the publisher is irrelevant.
(5) The article must be read as a whole, and any 'bane and antidote' taken together.
(6) The hypothetical reader is taken to be representative of those who would read the publication in question.
(7) the court should rule out any meaning which, 'can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation ' .
(8) It follows that 'it is not enough to say that by some person or another the words might be understood in a defamatory sense.'"
My determination of the relevant defamatory meanings of the article
(1) "Mr Jones suffered a nightmare when he wanted treatment for swollen legs because Dr Serrano had written to the DVLA to have Mr Jones' licence revoked for persistent abuse of alcohol when it was wrong and inappropriate to do so: (1) because Dr Serrano had been told that Mr Jones might have a pint or two after work, and a couple of spirits if he went out with his wife and friends at the weekend; (2)because of the language barrier Dr Serrano had wrongly understood that Mr Jones drank that amount every night and then refused to listen; and (3) without any research into whether Mr Jones persistently abused alcohol such as liver or blood tests, and without any other evidence whatsoever. The DVLA had relied on Dr Serrano's report and revoked Mr Jones bus and personal driving licences."
(2) "Dr Serrano reported Mr Jones to the DVLA and it was wrong and inappropriate to do so because it was a breach of patient confidentiality."
(3) "Dr Serrano unreasonably refused to persuade the DVLA to revoke its decision in circumstances where blood, liver and kidney tests, when carried out by another doctor, showed that Mr Jones did not persistently abuse alcohol, and where tests subsequently carried out by an independent doctor brought in by the DVLA showed no trace of persistent abuse of alcohol".
4) "Dr Serrano pretended not to be able to talk about Mr Jones' complaints on the basis of patient confidentiality, when an appropriate consent form had been sent through".
(5) "Dr Serrano's conduct was shocking".
Persistent misuse of alcohol and driving
Medical confidentiality and disclosures to the DVLA
The evidence about Mr Jones' drinking before 24 January 2011 and my findings on that evidence
Roebuck House surgery take over Little Ridge Surgery
The contemporaneous documents relating to the consultation on 24 January 2011
Dr Serrano's evidence about the consultation
Mr Jones' evidence about the consultation
Mrs Jones' evidence about the consultation
The expert evidence about the consultation
My findings about what occurred at the consultation
The consultation on 27 January 2011
The blood tests
The letter dated 31 January 2011
The report to the DVLA
Expert evidence about the letter to the DVLA
My findings about the report to the DVLA
My findings on the first and second defamatory meanings
The DVLA revoke the licences
Dealings with Mr Jones after 7 March 2011
My findings on the third defamatory meaning
Further investigations and Mr Jones gets his licence back
Mr Jones' email to Mr Mackenzie
The investigations into the story
My findings on the fourth and fifth defamatory meanings and my findings on the article as a whole
The publication of the article and its immediate effect
Dr Serrano and Ms Rudd
The complaint to the PCC
Dr Serrano's resignation and my findings about the reasons for the resignation
The conduct of the trial
My findings on issues relevant to damages
Some legal principles relating to damages and my award
No aggravated damages