Case Law, Australia: Dank v Nationwide News Pty Ltd: Twenty days in Stephen Dank’s defamation trial but Zero Damages – Justin Castelan

5 04 2016

DankSince 2013, the Australian sporting landscape has been dominated, not by any particularly amazing footballer, cricketer or athlete. No, it has been dominated by Stephen Dank – “sports scientist”. He is the man responsible for bringing into the Australian consciousness a range of strange sounding peptides, unknown Mexican amino acids and apparently useful horse supplements. He also brought them into the bloodstreams of elite sportsmen across different footballing codes in different states and for different teams.

Most notably in the Australian Football League, where Essendon had 34 of its players found guilty of taking performance enhancing drugs in 2012. That regime was created by Dank and those players cannot play football this year, having been suspended by the Court of Arbitration for Sport in Lausanne. They can only commentate on TV…  Meanwhile, the coach of Essendon from that time, James Hird, continues to familiarise himself with the expanses of the Australian legal landscape and either gets benefactors to pay his legal costs or he sues other people to pay them.

As for Dank, from 2013 he took up more column inches than any politician, actress or country in the Middle East. But to date, he has remained silent. He has left it to his barristers to do the talking, which they have had to do a lot of recently in New South Wales.

In that State, Dank had plied his wares at the Cronulla Football Club in 2011. The result of that jaunt was that players there accepted bans and a media frenzy ensued. Among the frenzy were six articles published by The Daily Telegraph and the Sunday Telegraph at various times in 2013. Dank sued on all of them and his juggernaut of cases were rolled into 3 proceedings that were heard by a jury in the NSW Supreme Court in one hit over 20 days in February and March this year.

First matter

Very broadly, the first matter complained of related to allegations published in The Sunday Telegraph that Dank had injected players at Cronulla with Warfarin, a blood-thinning medication.

The article published comments by the club doctor’s daughter on her Facebook page that:

In 2011, the doc turned up to a pre-season game to discover training manager Trent Elkin had employed a ‘sports scientist’ named Stephen Danks (sic). The doc was not informed, nor consulted about this decision.

Shortly after, the doc discovered mysterious heavy bruising on some of his players. He discovered that Danks had been injecting them with warfarin, a blood thinning medication, in an attempt to increase oxygen flow.

Concerned about the welfare of his beloved players, the doc confronted Danks and Elkin about what they were doing. When they refused to tell him, Doctor Givney resigned … in protest.”

The allegation that Dank had been injecting players with Warfarin was wrong. There was no evidence that the drug was used.

Dank pleaded four imputations arose from the article and won on two of them. The imputations pleaded were:

  1. The plaintiff caused the Cronulla football players to be at risk of sustaining fatal injuries: Jury held that this was conveyed, but not defamatory of Dank;
  2. The plaintiff oversaw the administration of the medication Warfarin on Cronulla football players which caused heavy bruising and endangered their health: Jury found this was conveyed, was defamatory and was not true;
  3. The plaintiff oversaw the administration of a physically dangerous medication to Cronulla football players: jury found this was conveyed and defamatory, but that it was true; and
  4. The plaintiff injected the Cronulla players with Warfarin thereby endangering their welfare: jury found this was conveyed, defamatory and not true.

The defendants did not run a truth defence in relation to the injection of Warfarin, and so Dank won on those imputations in the first article. Just a matter of assessing the damages.

Second and third matters

The second and third matters concerned the provision of Dank’s supplements to a player named Jon Mannah, who had been diagnosed with Hodgkin’s lymphoma in 2009. He was among the group of players that received Dank’s supplements and his disease later progressed to non-Hodgkin’s lymphoma and he died in early 2013 at the age of 23.

For these matters, the media quoted from a secret independent report provided to the Board of the Cronulla Football Club. The following extract from the report was published:

Based on the chronology it appears Mannah was administered with substances including CJC-1295 and GHRP-6 during the period from March to May in 2011. A brief review of available published medical literature suggests an identified causal link between the use of substances such as CJC-1295 and GHRP-6 and the acceleration of the condition of the disease Hodgkin’s lymphoma.”

So for the second matter, the jury found that the articles conveyed the following meanings, which were defamatory of Dank:

  1. The plaintiff administered to football players peptide drugs (CJC-1295 and GHRP-6) which were prohibited by the World Anti-Doping Authority;
  2. The plaintiff acted with reckless indifference to Mannah’s life by administering dangerous peptides to Mannah whilst Mannah was in the remissions stage of cancer;
  3. By administering peptides to Jon Mannah the plaintiff accelerated Mannah’s death from cancer;
  4. The plaintiff administered dangerous and cancer causing supplements to Jon Mannah and other football players thereby exposing them to risk;
  5. The plaintiff’s conduct in administering peptide substances to football players was absolutely indefensible and justified one of Australia’s leading sports physicians to express his horror;
  6. The plaintiff acted with reckless indifference to Jon Mannah’s life because he administered untested peptides to Mannah whilst Mannah was in remission from cancer.

Seriously defamatory stuff….  But the jury found that it was all true. Dank lost.

The third matter was an article headed “Police look at Mannah death”, and it reported that the Australian Sports Anti-Doping Authority (ASADA) had handed information it held relating to Mr Mannah to the NSW police to assess whether criminal charges should be brought. The article did not name Dank, but he sued on it all the same. The jury found that the article conveyed none of the meanings alleged by Dank. Another loss for him.

Assessment of damages on the two Warfarin imputations

The assessment of damages was then a matter for Her Honour Justice MacCallum, in light of the jury’s findings ([2016] NSWSC 295). Dank won the two imputations relating to the injection of Warfarin, but lost on everything else. The defendants relied on all of the true imputations, essentially submitting that the truth of all of them overwhelmed the defamatory impact of the two Warfarin imputations and submitted that damages should be nominal.

The evidence established that Warfarin was a dangerous drug and that its administration to young men competing in contact sport “would be most unwise”. There was no evidence that Dank had injected any player with Warfarin.

There was evidence instead that Dank supplied “BB Formula” to Cronulla, which the club doctor stated was recommended “for animal treatment only” and described as “a unique rice bran extract emulsion. A feed supplement for horses in training.” BB Formula was not approved for therapeutic use in Australia.

The defendants called expert evidence from Professor Salem, who gave evidence that the administration of BB Formula would be akin to a person receiving a platelet-inhibiting drug, which was “very dangerous”, its effect being that blood clotting and bruising would not repair properly. Professor Salem also gave evidence that the combining of different anti-platelet drugs without strict medical supervision was dangerous because it invited a major bleeding, and said:

People are well known to die from this [a combination of anti-platelet drugs]. It can bleed in the brain, have a major stroke and die from it.”

Counsel for the plaintiff attempted to show that Professor Salem was exaggerating. He did so by stating in cross-examining that the combination of BB Formula and Lactaway (another supplement that had been referred to) was “a dangerous cocktail, almost as bad as cyanide”.  Professor Salem agreed. Not good for Dank.

Based on that evidence, the jury found that Dank had overseen the administration of a physically dangerous medication to Cronulla football players.

Her Honour concluded that she was satisfied that the sting of the two Warfarin imputations was substantially true, even though there was no evidence of injecting actual Warfarin. Her Honour stated:

The substance in question was not Warfarin; it was a substance intended as a feed supplement for horses. It might have sounded harmless but it had not been appropriately tested for therapeutic use by humans. It should not have been used on football players.”

This meant that the mitigating impact of the true imputations reduced the damages, not just to a nominal amount, but worse for Dank: zero. Plus he has to pay the media’s costs of the 20-day trial. Even Shane Warne could not spin that result. Unmitigated disaster for Dank.

Maybe he can ask James Hird if he knows anyone who could pay the costs?

This post originally appeared on the Defamation Watch blog and is reproduced with permission and thanks

 


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