Complaint under section 8(1)(a) of the Broadcasting Act 1989
Paul Holmes item – 84-year-old woman suffered fourth degree burns during cryosurgery in her mouth – caused by malfunctioning equipment – OSH prosecuted the oral surgeon but the case was dismissed – item reported expert evidence that equipment should have been serviced annually, but had not been serviced since 1974 – surgeon granted name suppression – viewer feedback on a subsequent programme described surgeon as a “mongrel” who should have his name published on the internet – allegedly unbalanced, inaccurate, unfair and in breach of law and order – broadcaster upheld balance complaint
Standard 2 (law and order) – breaches of name suppression order outside Authority’s jurisdiction – decline to determine – did not encourage viewers to publish name – not upheld
Standard 4 (balance) – action taken by broadcaster was sufficient – not upheld
Standard 5 (accuracy) – three matters misleading and inaccurate – upheld
Standard 6 (fairness) – majority decision – unfair to Dr X – upheld
Broadcast of a statement
Payment of legal costs of $3000
This headnote does not form part of the decision.
 An item broadcast on Prime on Paul Holmes on 1 March 2005 at 7pm told the story of an 84-year-old woman who had visited an oral and maxillofacial surgeon. The woman suffered from chronic mouth pain, and was to have cryosurgery to freeze a nerve with nitrous oxide. The item reported that the surgeon assured the woman her surgery would be risk free.
 Due to a malfunction in the cryogun used to perform the operation, liquid nitrous oxide flowed into the woman’s mouth and formed an ice-ball. She suffered fourth degree burns and required hospitalisation and treatment to remove the dead skin from inside her mouth. The item showed photos of the woman’s injuries.
 The item further reported that the woman attended a meeting with the surgeon, Dr X, to discuss an out-of-court settlement. It was stated that she had asked for $200,000 to cover her “ongoing costs”, and reported that the surgeon had made the following offer, which was printed on the screen and read out in part by the reporter:
I am prepared to offer $5,000. The offer is made in full and final settlement. That is to say that if accepted [the patient and her husband] will accept that this is an end to the matter once and for all. There will be no ability to make any other complaints, claims or demands against me. [The patient and her husband] will say nothing to others about this matter and will not be a party to any adverse publicity about the incident.
 The item also reported that the Occupational Safety and Health Service (OSH) had prosecuted Dr X for failing to ensure the safety of a patient. It said that OSH had sought the advice of an independent expert in cryo-surgical equipment, who recommended that the type of cryogun used in the surgery should be serviced annually. The item stated that there was no record of the cryogun used by Dr X having been serviced since its manufacture in 1974. It reported that the prosecution of the surgeon had been unsuccessful.
 The woman stated in the item that the cryogun had not been checked to make sure it was functioning properly. She believed that both the surgeon and the owner of the cryogun should have been held responsible for checking that the equipment was safe. The host of Paul Holmes noted that Dr X had received permanent name suppression, adding “any of his future patients of course, which may well be you, might never know about this particular fellow, but we’ll stay on it”. Dr X’s comments were not sought.
 At the conclusion of a subsequent Paul Holmes programme on 2 March 2005, the host introduced the “viewer feedback” segment. A viewer had written to the programme concerning the previous episode, and her feedback was both printed on the screen and read out by the host. It said:
[The woman] should get that rotten surgeon’s name published on an overseas website. What a mongrel.
 Dr X complained to Prime Television New Zealand Limited, the broadcaster, that the item was unbalanced, inaccurate, unfair and in breach of law and order.
 In respect of the name suppression order, Dr X noted that it prohibited the publication of his name and any details that might identify him. Dr X had learned that the broadcaster contacted the prosecutor at the Department of Labour, who had cautioned against mentioning his occupation and place of work. Dr X understood that the Department of Labour had made a statement about the case, which had not been included in the programme. Dr X expressed astonishment that Prime had not also sought to obtain comment from him.
 Dr X alleged that it was in contempt of the court order to publish viewer feedback suggesting that his name should be published on the internet. Further, the comment that he was a “mongrel” was hardly surprising given the programme’s lack of balance, he said.
 The complainant argued that the programme had portrayed a clear message that he was at fault. This was misleading and deceptive, he said, and it was unforgivable given that the broadcaster had access to the court judgment. Dr X observed that images of the judgment were shown on the programme, which implied that what was being said was representative of the judgment. He asserted that it was not.
 Dr X stated that a brief look at the court judgment would confirm that he was not to blame for the incident. The judge had observed that the surgery was safe and that the equipment was in “excellent condition”. In the complainant’s view, the programme had presented an unbalanced selection of the evidence.
 The reference to the independent expert evidence given for the prosecution that the equipment should be serviced annually had “shored up” the allegation that Dr X had not enquired about the servicing of the equipment or checked it before use. This was not so, he said. Dr X argued that the expert was not “independent”, as he worked for the company which manufactured the equipment in question. The manufacturer had been criticised during the case, he noted, as it had exited the marketplace without following up safety modifications introduced subsequently in the United Kingdom.
 Dr X asserted that viewers would have been left with a clear impression that there was a serious fault with the servicing of the equipment because it had not been serviced annually. He argued that this was misleading, adding:
As the court judgment makes so very clear, the event that gave rise to the injury to [the woman] was entirely unexpected involving a sudden collapse of the seal in circumstances where I and the owner of the equipment could not be blamed at all.
 The complainant referred to the following paragraphs from the District Court judgment to illustrate his argument:
“…I am satisfied that a service or inspection would not have prevented the incident.”
“The machine was a simple and safe machine in excellent condition. [Dr X] carried out proper tests prior to using the machine. All was in order at that stage. The cylinder was also tested. The cylinder provided a second layer of safety. It seems for reasons unknown, but which in life seem to occur, both the machine and the cylinder suddenly and catastrophically failed at the same time…I do not consider that the defendant failed to take all practicable steps.”
 Dr X asked why Prime had not only failed to refer to this evidence, but in fact had given quite a different impression. The complainant also expressed surprise that Prime chose to rely on the evidence of the “independent” expert called by OSH, which the judge had not accepted.
 The programme’s references to Dr X’s settlement offer were also misleading, he argued. Dr X disputed that the woman’s ongoing costs would amount to $200,000, and said that the broadcaster should have checked these statements before publishing them as facts.
 Dr X stated that the portion of the settlement letter that was broadcast was only a selection from his three-page letter. He considered that the following important details from the letter were omitted from the programme:
 This had left viewers with no appreciation as to why his offer had been $5,000, Dr X said, when in reality that was a generous offer. The omission of these facts added to the lack of balance shown in the programme, he said.
 Dr X regarded Prime’s failure to seek comment from him as unacceptable. It was obvious that the broadcaster had spent considerable time investigating the matter, he said, as it had approached the Department of Labour for comment. He questioned why the statement from the Department of Labour had not been broadcast.
 The complainant stated that both he and his nurse had checked the equipment before it was used, but this had not been noted in the broadcast. Although he was not liable to pay the woman anything, he had offered $5,000 as a gesture of good faith, he said. Further, the court judgment noted that he had never experienced a similar incident in his practice as a surgeon.
 Against this background, Dr X claimed, the programme had portrayed him as a “mongrel”. Many people would have known that it was him being described in the programme, including colleagues. He asked that Prime issue an apology and a retraction in order to address any future damage caused by the programme.
 In a second letter to Prime, Dr X confirmed that he wished his complaint to be addressed under Standards 2, 4, 5 and 6 of the Code. Under Standard 4 (balance), the complainant expressly referred to Prime’s failure to seek comment from him, and the item’s portrayal of him being at fault. He also submitted that the item should have mentioned that the District Court judge did not accept the evidence of the expert called by OSH, or alternatively it should have also published the contrary evidence given for the defence. Further, references to the settlement letter were not balanced, Dr X said.
 Noting that many of the particulars set out in his first letter should be addressed under Standard 4, the complainant also asked that they be considered under Standard 5 (accuracy). The item had been inaccurate by referring as it did to the court judgment and the evidence produced at the hearing, he said. Dr X also argued that the entire broadcast was not truthful and accurate on points of fact, which was highlighted by the viewer’s impression of him as a “mongrel”.
 Referring to Standard 6 (fairness), Dr X argued that he had not been treated justly and fairly by the item. Failure to attempt to obtain Dr X’s comment was itself in breach of the standard, he said. Secondly, the complainant contended that the extracts from the court judgment and settlement letter did not accurately reflect the facts. For example, he pointed to the item’s “selective use of expert evidence” being evidence not preferred by the District Court judge.
 In terms of Standard 2 (law and order), the complainant submitted that the programme had published details about him in breach of the name suppression order. Similarly, urging that his name be published on the internet was a matter of serious concern, and was in breach of Standard 2. Dr X claimed that the host had shown a distinct lack of respect for the principles of law in those respects.
 Prime assessed the complaint under Standards 2, 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice, which provide:
Standard 2 Law and Order
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.
Standard 4 Balance
In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
Standard 5 Accuracy
News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.
Standard 6 Fairness
In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.
 In response to the complaint, Prime upheld part of Dr X’s complaint in relation to Standard 4 (balance), but declined to uphold the complaint under the other standards.
 The broadcaster felt that the woman had an important story to tell, and that it was a matter of public interest. It had taken steps to ensure the name suppression order was not breached, and as a consequence Dr X’s comments were not sought prior to the broadcast.
 Turning to consider Standard 2 (law and order), Prime stated that it had not referred to Dr X’s name, location or the fact that he was a maxillofacial surgeon. The broadcaster noted that searching the white pages and yellow pages revealed more than 30 oral and maxillofacial surgeons.
 While the host had read out the viewer’s email on a subsequent programme, Prime contended that the viewer’s comments did not express the host’s or the programme’s view. Nor did it encourage any breach of the suppression order, it argued. Rather, it had simply reported a comment reflecting the opinion of a viewer. Prime concluded that there had been no breach of Standard 2.
 With respect to Standard 4 (balance), Prime accepted that programme had lacked balance in some respects, in particular, with regard to the District Court judge’s decision in relation to the expert witnesses. The broadcaster noted that balance can be achieved over time “within the period of current interest”. Prime observed that Dr X had been offered an opportunity to appear on a subsequent programme with his identity protected, and that he had refused that offer.
 The broadcaster stated that it was willing to broadcast a statement, but not the statement proposed by Dr X. In particular, it was not prepared to issue an apology or include details of the costs award in favour of Dr X against the Department of Labour.
 Prime advised Dr X that it would consider and, if appropriate, seek to incorporate reasonable comments from him as to the form of a statement it proposed to broadcast.
 With regard to Standard 5 (accuracy), Prime maintained that the programme was accurate. Prime had accepted that the programme did not include full details of the District Court judgment or the judge’s conclusions with regard to the expert’s comments. However, it did not accept that this amounted to a breach of Standard 5.
 Similarly, Prime declined to uphold the complaint under Standard 6 (fairness). Name suppression issues had led to problems in seeking Dr X’s input, it said, but now the “lines of communication” were open and he had an opportunity to have his say. It would seek his comments in terms of a proposed statement.
 In conclusion, Prime reiterated its finding that the item had breached Standard 4. The breach related to the reporting of the court judgment and the judge’s findings in respect of the expert comment provided to the court. In particular, the broadcaster considered that the judge’s conclusion that “I am satisfied that a service or inspection would not have prevented the incident” should have been broadcast.
 Dissatisfied with the broadcaster’s response, Dr X referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. He considered the proposed statement from Prime to be inadequate in terms of remedying the breach of Standard 4. In addition, he argued that the remainder of the complaint should also have been upheld.
 In its response to the Authority, Prime enclosed the letter it had sent to Dr X offering him the opportunity to participate in an interview, and offering to broadcast a statement prepared by him. Prime also included Dr X’s response to that letter which declined the offer to participate in an interview, and attached a draft apology proposed by Dr X.
 Dr X reiterated that Prime’s proposed statement had not been satisfactory in terms of correcting the original broadcast. Further, he noted that Prime had failed to apologise to him.
 The Authority asked Dr X to provide a copy of the District Court judgment in the Department of Labour prosecution, and a copy of the letter written by Dr X to the patient offering to settle the matter. In addition, Dr X provided a copy of the District Court judgments regarding name suppression and costs.
 The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 The complainant sought name suppression, noting the permanent name suppression order granted in the District Court at Auckland. The Authority agrees that it is appropriate that the complainant’s name should also be suppressed in this decision.
 The complainant has argued that the programme breached Standard 2 by:
broadcasting details about him in breach of the name suppression order granted by the District Court
publishing viewer feedback suggesting that his name should be printed on the internet in contempt of the name suppression order.
 The Authority declines to determine the first of these two complaints, under s11(b) of the Broadcasting Act 1989. Whether there has been a breach of the name suppression order is a matter outside of the Authority’s jurisdiction. It is a matter for the District Court to determine.
 With respect to the viewer feedback, the Authority notes that it was published along with a number of other letters about other items, and was not given any special attention by the presenter. The Authority finds that broadcasting the suggestion, without encouraging viewers to act upon it, did not amount to a breach of Standard 2.
 This part of the complaint concerns the action taken by Prime after it upheld part of Dr X’s complaint under Standard 4, agreeing that the complainant’s point of view should have been presented. Prime also agreed that the reporting of the court judgment, in respect of the judge’s findings about the expert evidence, was unbalanced.
 In the Authority’s view, the programme did not discuss a controversial issue of public importance; it would therefore not have upheld a complaint under Standard 4. In coming to this conclusion, the Authority notes the following relevant statement from Decision No. 2004-203:
The requirement for balance applies to items which deal with “controversial issues of public importance”. The Authority notes that while the item raised the issue of the complainant’s professional competence, it did not address the wider issue of doctors’ competence or professional accountability generally.
 The Authority also records its disagreement with Prime that guideline 4c (relating to authorial documentaries) is relevant. In the Authority’s view, guideline 4c applies only to programmes which have been deliberately constructed to present the programme maker’s personal perspective on a controversial issue.
 In any event, the Authority’s present task is to review the action taken by the broadcaster after it upheld Dr X’s complaint. The Authority notes that Prime offered the complainant a studio interview, and offered to broadcast a statement. Dr X refused to participate in an interview, and maintained that Prime’s proposed statement was inadequate.
 In the Authority’s view, the action taken by the broadcaster was sufficient and appropriate in the circumstances. The offer of a studio interview and the offered broadcast statement represented a genuine and fair way of dealing with the complaint. The Authority declines to uphold this part of Dr X’s complaint.
 Standard 5 requires news, current affairs and factual programmes to be truthful and accurate on points of fact. There are several aspects of the programme which the complainant has alleged were misleading and inaccurate, and the Authority has dealt with each of these matters individually.
 The complainant alleged that the item was inaccurate and misleading in the way it presented the expert evidence from the District Court hearing. The item reported the evidence of a prosecution witness who stated that the cryogun should have been serviced annually.
 The Authority notes that the District Court judge placed “little weight” on the opinion of this witness with regard to the operation and maintenance of the cryogun. The judge found that “service or inspection would not have prevented the incident”. This critical finding was not included in the item.
 The Authority agrees with the complainant that the programme was misleading and inaccurate in relying on the expert evidence when this evidence was given such little weight by the judge. It upholds this aspect of the complaint under Standard 5.
Testing the Cryogun
 Dr X also alleged that the programme created the misleading and inaccurate impression that he did not test the machine prior to use. The Authority notes the following statements in the item made by the 84-year-old woman:
“I think the owner is responsible for having it maintained and checked and I feel the owner/operator [should] make sure that it had been checked before it was used in anybody’s mouth – and I know it wasn’t”.
“I feel for the little time it would’ve taken to check that machine, look what it’s done to me”.
 Contrary to these assertions, the Authority notes the District Court judge’s finding that Dr X “carried out proper tests prior to using the machine”. It agrees with the complainant that the programme created the inaccurate impression that he had not adequately tested the machine. Accordingly, the Authority finds that Standard 5 was breached in relation to this part of the complaint.
 The complainant also argued that using a limited extract from his settlement letter to the woman was misleading and inaccurate. He considered that several important details from the letter were omitted from the programme (refer to paragraph ), which had left viewers with the impression that his offer of $5,000 was unreasonable.
 The Authority agrees with Dr X. It notes that the extract used in the item came near the end of a three-page letter of explanation. The item made no reference to the fact that Dr X had made the offer without an admission of liability, or that Dr X had received legal advice that he was not liable to make any payment to the woman.
 The Authority also observes that the item did not refer to Dr X’s statement that the woman was precluded from suing him for financial compensation by ACC law, or to Dr X’s clarification that he was in no way responsible for what happened. The Authority considers that in selecting that single passage from Dr X’s letter, while failing to use any of the background explanatory material, the item was misleading and in breach of Standard 5.
 Standard 6 states that, in the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person taking part or “referred to”. While he was not identified by name, a majority of the Authority finds that Dr X was “referred to” in the Holmes item for the purposes of the fairness standard. The programme referred to the oral surgeon who had treated the 84-year-old woman, and this was a reference to Dr X.
 Having found that he was referred to, the majority also considers that the item was unfair. While the majority accepts that he was not identified to the world at large, Dr X’s alleged conduct and subsequent actions were a central part of the story, and despite the name suppression he was identifiable to a significant number of people both in his professional circle, and in his former patient’s community. Accordingly, for the reasons discussed below, the Authority considers that the inaccuracies also resulted in unfairness.
 A minority of the Authority (Diane Musgrave) considers that Dr X was not “referred to” in the item. Ms Musgrave finds that Dr X would not have been identified beyond a small group of people who would have already known about the matters under discussion. In Ms Musgrave’s opinion, a person must be identifiable to a larger group of people in order to have been “referred to”, and accordingly she does not uphold the Standard 6 complaint.
 Having concluded that Standard 6 can be applied to the broadcast, the majority of the Authority has considered each of Dr X’s allegations of unfairness in turn.
 For the same reasons set out in paragraphs  –  above, the majority of the Authority also finds that the item breached Standard 6 by presenting expert evidence from the District Court hearing without also reporting that it was not accepted by the judge. Noting the judge’s finding that such maintenance would not have prevented the incident, the majority considers that the presentation of this expert evidence wrongly and unfairly implied that Dr X was at fault.
 Similarly, a majority of the Authority considers that the misleading use of an extract from Dr X’s settlement offer also breached Standard 6. The majority finds that the selective use of this extract created the unfair impression that Dr X had been unreasonable in offering only $5,000 to the woman. In fact, the rest of the letter made it clear that Dr X had received legal advice that he was not liable to make any payment to the woman.
Failure to obtain comment
 Dr X also complained that Prime’s failure to contact him for his input amounted to a breach of Standard 6. Prime argued that the name suppression order led to “practical difficulties” in seeking his input. The Authority does not accept this argument. In the Authority’s view, the name suppression order did not preclude Prime from seeking Dr X’s comments, as it could have broadcast Dr X’s views while still protecting his identity.
 The Authority has already found that the item was inaccurate and, arising directly from those inaccuracies, a majority has found the item was also unfair to Dr X. It was these inaccuracies that were the essence of the fairness complaint.
 The majority does not conclude, however, that the failure to seek input from Dr X was itself a separate ground of unfairness. In the view of the majority, while it would have been prudent, it was not necessary for Prime to seek comment from Dr X. Prime could have made an accurate – and thus fair – programme based on the other information that was readily available; the court judgment, in particular, was unambiguous about Dr X’s lack of culpability. Accordingly, the programme’s unfairness arises from its inaccuracies, rather than the failure to seek Dr X’s comment.
 While the failure to seek Dr X’s comment does not itself create a separate ground of unfairness, it does aggravate the seriousness of the programme’s inaccuracies and consequent unfairness. Having chosen not to seek Dr X’s input, it was especially incumbent on Prime to ensure that it provided an accurate and fair factual background to the case, based on the other available information. It failed to do this, and this failure was aggravated by the fact that it knew it did not have the backup of Dr X’s view to provide his personal perspective.
 For this reason, while the majority does not conclude that the failure to seek Dr X’s input was a separate ground of unfairness, it considers that the failure aggravates the breaches of the Code already found.
 For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.
For the above reasons the Authority upholds the complaint that the broadcast by Prime Television New Zealand Ltd of an item on Paul Holmes on 1 March 2005 breached Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld the complaint, the Authority sought submissions on orders from the parties.
 Dr X submitted that the Authority should order:
 Prime made a detailed submission in response. Prime stated that:
 Prime argued that an apology could prejudice its position in any civil action that Dr X brought in relation to this broadcast. It also submitted that an apology was unnecessary, given that it would be made to an unidentified individual, and would add little to the statement summarising the decision. Finally, Prime submitted that the Authority’s breach findings were limited, relating primarily to accuracy. The Authority had indicated that it would not have upheld a complaint about balance, it noted, and the finding of unfairness was not unanimous.
 In response, Dr X submitted that a responsible broadcaster should have no problem making an apology where appropriate. He noted that the recent High Court decision of Radio New Zealand v Ellis confirmed that the Authority was able to order an apology, and that the apology content of the statement he had earlier submitted was “hardly intrusive”.
 Dr X also provided evidence to establish that his legal costs amounted to $11,000.
 For the avoidance of doubt, the Authority notes that the only circumstances in which it can award compensation to a successful complainant is when a breach of privacy is established. That did not happen in the present case, and therefore, under s13 of the Broadcasting Act, the Authority has no jurisdiction to award compensation.
 The Authority concurs with the parties that an order requiring Prime to broadcast a statement is appropriate. The statement should provide a comprehensive summary of the decision, and the reasons why Dr X’s complaints were upheld.
 The Authority does not, however, order that the statement include an apology. While the Authority found that Dr X was referred to in the programme, he was not identified to the world at large; only a limited class of people would have been able to identify him. Any apology would therefore have to be made to an unnamed person, and in these circumstances the Authority agrees with Prime’s submission that it would add little to the statement summarising the decision and the reasons why the complaint was upheld.
 The Authority also concurs that an award of costs to the complainant is appropriate. It considers, however, that the award should be substantially discounted. Although the referral of the complaint to the Authority did result in the fairness and accuracy complaints being upheld – and thus an award of costs is appropriate – Dr X’s position has not otherwise been substantially advanced from that which Prime proposed after upholding the initial complaint. The Authority considers that Prime cannot reasonably be required to pay a significant proportion of Dr X’s costs when after a lengthy complaints process before the Authority, it has now been ordered only to broadcast a statement – which it offered in its initial response to Dr X. Had Prime’s proposed statement been manifestly inadequate, the Authority would have reached a different conclusion. But that, in the view of the Authority, was not the case.
 Dr X provided evidence to the Authority that his costs amounted to $11,000. Taking into account the substantial discount needed, the Authority considers that Prime should pay Dr X $3000.
 The Authority considers that costs to the Crown are not required. Such costs are generally imposed to mark the Authority’s disapproval of a serious departure from broadcasting standards. Taking into account all the circumstances of this case, the Authority considers that that step is unnecessary.
The Authority draws the broadcaster’s attention to the requirement in s.13(3)(b) of the Broadcasting Act for the broadcaster to give notice to the Authority of the manner in which the above orders have been complied with.
The order for costs shall be enforceable in the Wellington District Court
Signed for and on behalf of the Authority
1 November 2005
The following correspondence was received and considered by the Authority when it determined this complaint: