Cornelius v de Taranto
| Jurisdiction | England & Wales |
| Judgment Date | 30 June 2000 |
| Date | 30 June 2000 |
| Court | Queen's Bench Division |
Court and Reference:High Court, QBD ; 98-C-38
Morland J
E Garnier QC and T Atkinson (instructed by Leigh Day & Co) for the Claimant; R Seabrook QC and A Marzec (instructed by Le Brasseur J Tickle) for the Defendant.
Whether the distribution of a medico-legal report commissioned for legal proceedings to the Claimant's GP and a consultant psychiatrist, which contained defamatory and confidential material, gave rise to damages for defamation and/or breach of confidence.
The Claimant consulted solicitors to bring a claim for constructive dismissal from her teaching post, but was advised to seek damages for personal injuries instead, arising from the stress of the job; she was also advised that a psychiatric report was needed, and so the Defendant was commissioned to prepare such a report. The Claimant never signed a consent form allowing the Defendant access to her medical records, but attended for an interview with the Defendant for the report. The Defendant formed the view that the Claimant needed to see a psychiatrist. There was a conflict of evidence as to whether she agreed to a referral at the end of the interview.
The Defendant completed her medico-legal report: in addition to sending it to the Claimant's solicitors, she sent it to the Claimant's GP and the consultant psychiatrist to whom she proposed to refer the Claimant. As a result, the medico-legal report became part of the Claimant's NHS records and was seen by other people over time. The medico-legal report contained material which the Claimant complained was defamatory, namely that (i) at the age of 19 she had broken into and stolen drugs from a chemist's shop, (ii) when interviewed by the Defendant she had deliberately lied when denying any contact with psychiatric services and (iii) her current mental state meant that she was unable to face the problems of her life in a balanced and fully rational way. The Claimant claimed damages for defamation. The Defendant pleaded justification, and at trial relied also on s. 5 of the Defamation Act 1952.
The Claimant also claimed damages for breach of confidence arising from the supply of the report to other medical professionals, resulting in it becoming part of her NHS records, which had caused her distress, the costs of seeking to recover reports from the NHS records, and 630 as the cost of the medico-legal report.
1. The Claimant, Mrs Cornelius, has many admirable qualities and achievements. During her life she has surmounted difficulties and recovered from set-backs. I fear that her success in this litigation will be pyrrhic. On 29 September 1995 a legal wrong was done to her when the Defendant, Dr de Taranto, sent copies of a medico-legal report, which she had commissioned and paid for, without permission to her General Practitioner, Dr Patel, and to a Consultant Psychiatrist. The report contained defamatory and confidential material hurtful to the Claimant. To the fury of the Claimant and despite her persistent efforts the report has become so far irretrievably part of her National Health Service records. She has pursued the litigation with unbending determination. At stages she has had to prosecute her claim as a litigant in person. It is a manifestation of her psychological make-up that her determination to right the wrongs, as she sees them, done to her has become obsessional with the result that she approaches many aspects of the case with a lack of balance, realism and objectivity. Her obsessional attitude makes it difficult for her to distinguish between right and wrong and truth and falsehood. She is unable to accept in fairness to the Defendant that her mistake was well-meaning and not malevolent.
2. The Claimant in other proceedings is pursuing claims against Dr Patel and E Edwards, Son & Noice, their employee Mr Turner, her solicitors, who arranged for the medico-legal report to be obtained from the Defendant. The status of Mr Turner, whether an admitted solicitor or a legal executive, is not clear from the evidence. The Claimant's lack of confidence in Mr Turner and her state of wrath at the contents of the report and with Mr Turner is illustrated in her letter of complaint dated 10 October 1995. I have no knowledge of the issues raised in these other proceedings and therefore they play no part in this judgment.
3-4. The Claimant has also made complaint to the Solicitors Complaints Bureau and the Royal Free Hampstead NHS Trust. She has through her solicitors been in correspondence with the General Medical Council as recently as April 2000 in an attempt to retrieve copies of the medico-legal report.
The Issues at the Trial.
5. (i) The defamatory meanings or messages conveyed in the medico-legal report. (ii) The extent and nature of publication. (iii) The defence of justification. (iv) The application of s. 5 of the Defamation Act 1952. (v) Express or implied consent or lack of consent to publication (vi) Informed consent or lack of consent to referral to a consultant psychiatrist. (vii) Damages for defamation. (viii) The application of Pamplin v Express Newspapers [1988] 1 WLR 116. (ix) The application of Kelly v Sherlock [1866] LR 1QB 686. (x) Breach of the implied contractual duty of confidentiality. (xi) Damages for breach of confidence including injury to feelings.
The Factual Background.
6. The Claimant was born on 8 October 1945. She lived with her family in Liverpool. Her father died when she was 7 years old. Her mother remarried, when she was 11 years old, a much older man who was in the merchant navy. Her and her younger sister did not have an entirely satisfactory relationship with their step-father who died of throat cancer in April 1995 aged 87. Her mother, who is now an octogenarian, remains well and continues to live in Liverpool.
7. The Claimant married her first husband when she was aged 21. She had already had one son by him and two further sons were to follow. Unfortunately by 1971 her first husband was diagnosed as a schizophrenic. The Claimant and he separated and were eventually divorced although as I understood it some contact between the two of them still subsists. It seems that her first husband remains in need of care and protection. I have little doubt that the Claimant's experiences in relation to her first husband have coloured her attitude to psychiatrists.
8. She met her second husband, Mr Cornelius, in 1973. They lived together in Liverpool until 1989. Their relationship had its ups and downs. Mr Cornelius had artistic and literary talents. He wrote books about Toxteth and the Toxteth Riots which apparently resulted in disapproval from both left and right. However he was not a good manager of finances. He trained to become an art teacher.
9. In my judgment it was clear to me when observing both the Claimant and Mr Cornelius throughout the trial that he has a weaker personality than his wife. When he was giving his evidence the Claimant stared at him intently to ensure as I find that he stuck to the party line.
10. When her sons become teenagers, the Claimant went to Liverpool Polytechnic and obtained a 2(1) Honours degree in Social Studies. She then went to Birmingham and obtained a teaching diploma. She returned to Liverpool and did various "supply" teaching jobs at a fairly high level.
11. In 1989 the Claimant and Mr Cornelius moved to London in the hope of bettering their teaching prospects. The move did not achieve the hoped for success.
12. Mr Cornelius suffers from spina bifida which substantially affects the speed of his mobility. He was unlawfully dismissed from his teaching post. That was in 1995. In the same period the Claimant was suffering from traumatic experiences at her school, The Sydney Russell School. She was being asked to teach children below her academic qualifications. Discipline in the school was lax and there was financial mismanagement. The Head Teacher was weak and the Claimant's Head of Department domineering and unreliable. Eventually both were given early "retirement". The Claimant was finding the situation stressful.
13. It was in these circumstances that the Claimant consulted Mr Turner. She wished to make a claim for constructive dismissal. Mr Turner advised against this and advocated a claim for personal injuries.
14. On 14 June 1995 Mr Turner wrote to the Claimant stating "The crucial point in relation to a proposed personal injury action would be an appropriately qualified expert's report confirming that the cause of your current stress related illnesses is work related". With that letter he enclosed a medical consent form.
15. The "Medical Authority Form" provided "Forms of Consent" limiting disclosure of the Claimant's GP and hospital records to her solicitors. This was stressed in her solicitors' letter to her GP, Dr Patel, when requesting a medical report. They wrote: "Please find attached to this letter a medical authority form authorising release of our client's medical details to this firm".
16. On 24 July 1995 the Claimant received from the Head of Education Management Support of the Borough of Barking and Dagenham a letter with enclosed explanatory notes which no doubt coloured her attitude when the Defendant submitted her medico-legal report. There was set out the following:
"Under the terms of the Access to Medical Reports Act 1988:
(a) You have the right to withhold your consent for the Occupation Health Service (OHS) to apply to your family doctor or hospital specialist for medical information.
(b) If you give your consent and state that you wish to see the report before it is sent to the OHS you will have 21 days, from the date of the OHS letter notifying you that a medical report has been requested, in which to ask your family doctor or hospital specialist to let you see the report.
(c) Your family doctor or hospital specialist will tell you if you cannot see any part of the report for professional medical reasons.
(d) If you are given access...
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