ON 11 SEPTEMBER 2003, the High Court of Australia delivered Rogers v Nationwide News Pty Ltd  HCA 52; 216 CLR 327; 201 ALR 184; 77 ALJR 1739 (11 September 2003).
The Daily Telegraph had reported on a 1996 Federal Court decision of Justice Hill regarding a tax assessment of the interest component of a 1990 damages award by the NSW Supreme Court in the amount of $808,564.38 to Maree Lynette Whitaker in her action against eye surgeon Dr Christopher Rogers.
Appeals against the 1990 decision were dismissed by the NSW Court of Appeal and High Court of Australia. The High Court decision of Rogers v Whitaker  HCA 58; (1992) 175 CLR 479 (19 November 1992) is a well known decision regarding negligence arising from failure to warn of inherent but remote risks as opposed to negligence in the recommendation of the procedure or the manner in which the procedure is performed. Dr Rogers had performed surgery on Whitaker’s right eye, which was almost blind. The surgery should have restored her sight, but instead became blind in the left eye when she suffered sympathetic opthalmia. Whilst the risk was remote, Dr Rogers was held to be negligent in failing to warn Whitaker of the risk.
In reporting on the 1996 decision, the Daily Telegraph referred to Ms Whitaker as being blinded by Dr Roger’s negligence, imputing that he had been negligent in the performance of the surgery.
The High Court in Rogers v Nationwide News Pty Ltd held that the Daily Telegraph’s reference to the decision of Rogers v Whitaker was not a fair report of court proceedings and had defamed Dr Rogers by adding to what was said by Justice HIll. The court held that the story was not entitled to the defence of qualified privilege.
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