On 16 March 2010, Dr Al Muderis, a respected Orthopaedic specialist, performed a hip arthroscopy on Mr Mazzella. Not long after the surgery, Mr Mazzella complained of numbness to his penis and scrotum, and a loss of sexual function.
In 2011, Mr Mazzella commenced medical negligence proceedings against Dr Al Muderis, alleging that he had damaged his pudendal nerves during the surgery. The evidence before the Court revealed no nerve injury to Mr Mazzella and no negligence of Dr Al Muderis. On the contrary, the surgery was found to be successful and testing revealed that no other injuries were sustained.
In addition to commencing medical negligence proceedings, Mr Mazzella made a formal complaint to the Health Care Complaints Commission. This complaint was subsequently dismissed in November 2014.
Between February 2015 and September 2016, Mr Mazzella continued to allege complications associated with the surgery. Mr Mazzella and his brother, Mr Duncan, became increasingly aggressive and hostile towards Dr Al Muderis.
Following the dismissal of the medical negligence proceedings, Mr Mazzella and Mr Duncan vilified Dr Al Muderis in a most vicious and vituperative series of publications. There were five publications in total which alleged professional negligence and moral culpability. These publications consisted of a website, video narrative, YouTube video, ‘Wanted’ poster and a publication on Pinterest and the Daily Motion. These publications suggested that Dr Al Muderis butchered and mutilated his patients, had a reckless disregard for human life and should be criminally charged. Mr Mazzella and Dr Duncan also made personal threats to Dr Al Muderis and his family, threatening to “cut off his penis and kill him”.
In September 2016, Dr Al Muderis commenced proceedings in the Supreme Court of NSW, seeking damages and injunctive relief.
Mr Mazzella and Mr Duncan took no steps in these proceedings and judgment on liability was issued by default in December 2016. The Court was then required to determine damages and whether injunctive relief was appropriate.
In determining an appropriate award for damages, the Court was required to give consideration the personal distress and hurt caused by the publications, reparation for the harm done to the personal and business reputation of Dr Al Muderis, and vindication of his reputation.
The Court noted that Mr Mazzella and Mr Duncan had failed to accept proposals to withdraw the publications, or offer an apology to Dr Al Muderis.
The Court found that the level of hurt feelings and damage to the reputation of Dr Al Muderis was at the highest level and warranted an award for aggravated damages.
In determining whether it was appropriate to make an order for injunctive relief, the Court was required to weigh up the nature of the defamation and the subsequent damage, with the value of free speech.
The Court was satisfied on the evidence that Mr Mazzella and Mr Duncan would continue to defame Dr Al Muderis and there was no public interest in the continuation of this conduct.
The Supreme Court awarded damages in the amount of $480,000.00 in favour of Dr Al Muderis and issued permanent injunctive relief.
The injunction ordered that Mr Mazzella and Mr Duncan remove the publications, and restrained them from publishing any defamatory material against Dr Al Muderis in the future.
For more information on the above article please contact Joe Bonura on 02 4626 5077 or email jbonura@marsdens.net.au
