The NSW Supreme Court has ordered a woman to pay $530,000 damages – plus substantial costs and interest since September 2017 – to Double Bay plastic surgeon Dr Kourosh Tavakoli following her malicious publication of a ‘plainly untrue’ review on Google.
Justice Stephen Rothman found defamatory imputations arose from the review which alleged Dr Tavakoli charged Cynthia Imisides “for a buccal fat procedure that he did not perform” and that he acted both “improperly” and “incompetently” in relation to that procedure. The judge ruled “those allegations have been shown to be plainly untrue”.
The judge explained the “claim in defamation and injurious falsehood” against Imisides “relates to the publication of a Google review from which the ordinary reasonable reader would accept that the following imputations arose”:
- Dr Tavakoli “is an incompetent plastic surgeon, in that the rhinoplasty he performed” on Imisides was unsuccessful;
- Dr Tavakoli “is cruel in his dealings as a doctor, in that he does not provide assistance to his patients who are unhappy with their results post-surgery”; and
- Dr Tavakoli “is a bully in that he intimidates patients that raise a legitimate complaint about his work by using his lawyers to threaten them”.
The judge noted Dr Tavakoli was born in Iran in 1969, moved as a teenager with his family to London and in 1986 moved to Sydney, where he completed his education and obtained a Bachelor of Science (Medicine) and a Bachelor of Medicine in 1993 and a Bachelor of Surgery in 1994 at the University of New South Wales. He is a Full Fellow of the Royal Australasian College of Surgeons (FRACS) in the division of plastic and reconstructive surgery, as well as a member of the Australian Society of Plastic Surgeons, the Australian Society of Aesthetic Plastic Surgeons and the International Society of Aesthetic Plastic Surgery.
The judge also noted Dr Tavakoli holds visiting medical officer rights at St Vincent’s Private Hospital and East Sydney Private Hospital and consults from rooms in Double Bay. He “performs cosmetic and reconstructive surgeries, including breast augmentation, abdominoplasty, rhinoplasty, breast reduction and breast lifts, as well as a range of facial procedures. He has also worked with victims of serious burns, of maxillofacial and hand trauma and has performed microsurgery for cancer patients.”
The judge said that between December 2016 and January 2017 Cynthia Imisides made a number of enquiries “regarding rhinoplasty, breast augmentation and a facelift”. When Dr Tavakoli first saw her on 24 January 2017, she “was recovering from plastic surgery performed by another surgeon”.
Dr Tavakoli saw Imisides again on 27 January and 7 February. At the second visit (27 January) “a final quotation for the three proposed procedures was provided” to Imisides.
On 9 February 2017, Dr Tavakoli performed three procedures on Imisides at East Sydney Private Hospital:
- Rhinoplasty “involving the revision of a former rhinoplasty on the reconstruction of the nasal septum. The previous rhinoplasty had been performed by a West Australian surgeon’;
- Buccal fat procedure “involving removing the fat pads that augment the lower part of the cheeks, to which (Dr Tavakoli) gained access through the inside of (Imisides’s) mouth and used dissolvable stitches on the inside of her cheeks”;
- Fascia graft “being a procedure involving the removal of fat from one part of the body to fill another part of the body, and, in this case, the fat was removed from (Imisides’s) abdomen and injected into her bilateral tear trough. During recovery, (Imisides) was observed by her anaesthetist as she had developed lockjaw from clenching her teeth as a result of the pain from the buccal fat procedure.”
An Operation Report for the buccal fat procedure was dictated by Dr Tavakoli on the day following the operation. In May 2017, Imisides agreed to come in for a post-consultation visit “to have steroid injections in order to reduce swelling in her nose”. That procedure was performed on 22 May 2017.
Justice Rothman noted “the evidence before the Court establishes that at the time that the steroids were injected”, Dr Tavakoli and Imisides had a conversation “to the following effect”:
Tavakoli: “Your nose swelling will take at least 18 months to settle. During that time you just need a number of steroid injections to reduce the swelling. You can see as many surgeons as you want, but it is widely accepted you cannot perform surgery on a revision surgeon within 18 months. If you shop around, you will eventually find someone who will tell you differently.”
Imisides responded with words to the following effect: “I know, I just get so emotional and make appointments. I now understand and I will come and get the injections whenever I travel to Sydney.”
The judge added there “was a series of exchanges in relation to appointments” for Imisides in which she was advised that “as per the discussion with Dr Tavakoli, it is extremely important for your healing and results that you stick to your appointment schedule”.
However an appointment she could not attend on 21 July was re-scheduled, but she “did not attend that re-scheduled appointment”.
Soon after Imisides’s husband Mark Imisides became involved in telephone calls and emails to Dr Tavakoli, resulting in formal written correspondence on 8 August from Tavakoli’s solicitors to both husband and wife “seeking undertakings relating to threatened publication”.
On 9 August, Mark Imisides “addressed three emails” to Tavakoli’s solicitors; one email “threatened (Dr Tavakoli) that the information, previously threatened, would be passed to A Current Affair or Today Tonight”.
As a result interlocutory injunctions were issued from the Court on 11 August and were “served, personally, on Mark Imisides on that day and by email” on both he and his wife.
Nevertheless on 1 or 2 September, Cynthia Imisides “published the first Google review” of which Dr Tavakoli “became aware on 2 September. He attests to the fact that he was extremely distressed and embarrassed when he read it and by its publication.”
On 7 September Andrew Murphy (software developer and Dr Tavakoli’s webmaster) conducted a review of data, concerning Dr Tavakoli’s local business listing on Google and “since the posting of the first Google review, the rate of visitors to (Dr Tavakoli’s) website had dropped by 23.61% in less than one week”.
Meanwhile Dr Tavakoli’s solicitors “sent emails to the defendants throughout September, informing them of Court orders”. Cynthia Imisides left the review up for three weeks, refused to apologise, and “threw out court documents” served upon her.
Eventually on 24 September, Mark Imisides “was served personally with the Statement of Claim and other documents and, on the same date, the first Google review was finally removed”.
However on 26 November 2018 (a week before a trial was due to begin) Cynthia Imisides published a second Google review “on its face, contravening the orders of the Court”. On the same day, Dr Tavakoli’s lawyers wrote to her “putting her on notice of her contempt and requesting that the second Google review be removed”.
To that notice, Cynthia Imisides “responded in the following terms: Piss off. I don’t have any money to give you greedy people.”
Justice Rothman summed up: “Plainly, the publication is defamatory of the plaintiff and goes to his reputation as a surgeon. Further, as earlier indicated, it has affected the number of enquiries made of his professional website.”
The judge also noted that the “tort of injurious falsehood is the malicious publication of a false statement that causes damage to the plaintiff” and “generally, it requires the Court to find that there has been:
- a false statement of or concerning the plaintiff’s goods or business;
- publication of that statement by the defendant to a third person;
- malice on the part of the defendant; and
- proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement.”
The judge emphasised that Cynthia Imisides “knew the statement in the first Google review was untrue . . . . and she knew that the second Google review statements were untrue”. Further, those statements “were made for a purpose to harm the plaintiff and the publication was actuated by that purpose. Malice has been disclosed.”
In assessing damages, Justice Rothman noted the “significant decline” in the rate of visitors to the plaintiff’s website – “this had dropped by 23.61% by 7 September 2017” – and added: “On the basis of the statistical and/or common-sense proposition that patients are obtained, at least in part, from persons who gain access to the website of the plaintiff, it can be inferred that there is actual damage to the plaintiff’s business, if not immediately, then, if the reviews are not withdrawn and/or prevented from further publication, into the future.”
And the judge added that, in this case, Cynthia Imisides – and “to a lesser extent” Mark Imisides – “has disclosed a willingness to defy orders of the Court and, without seeking to defend the publication, re-publish in or to the same effect as the earlier publication”. He also noted “the circumstances of this case, particularly the repeated publication of imputations and the threats to continue to repeat defamatory imputations”.
In assessing aggravated damages, the judge added “the harm suffered by the plaintiff is, in this case, the hurt to his feelings and the damage to his reputation, including business reputation. . . . . Where, as here, the damage to the plaintiff is, in part, to his business reputation on which he depends for his whole life, the damage is significant. Dr Tavakoli’s whole life depends upon his honesty and his competence as a surgeon. The Court should place a high value upon damage to his reputation in each of those respects.”
The judge added that “the evidence before the Court is that the plaintiff had an exemplary reputation, amongst his patients, within his social circle and in the profession. The evidence of John Flood, a Plastic Surgeon, who has known the plaintiff for many years, attests to the plaintiff’s reputation of being caring, kind and compassionate; and a skilled surgeon.”
And the judge emphasised: “The allegations contained in the publication are extremely serious and go to the heart of the reputation of the plaintiff in his profession.” Nevertheless Cynthia Imisides “published the material in order to punish the plaintiff. She did so in circumstances where she knew, at the time of the publication, that the imputations in the publication were untrue.
“Further, during the ensuing period, notwithstanding an appropriate and proper approach by the plaintiff through his solicitors”, she “has refused to apologise; refused to withdraw the imputations or, at least initially, withdraw the publication from the Internet; then, once the initial publication was withdrawn, sought to publish another set of imputations in or to the same effect.”
Justice Rothman ruled: ”The Court is satisfied that the defamatory material, and the conduct of (Cynthia Imisides) are such as to warrant an award of aggravated damages. . . . In all the circumstances, the Court assesses the damage at $530,000.”
He also noted Imisides “has completely ignored the proceedings and, by doing so, added significantly to the costs of proving the plaintiff’s case and effecting and proving service” and subsequently “ignored orders of the Court, of which she was aware, thereby necessitating further costs”.
Hence in addition to the $530,000 damages, the judge ordered Imisides to “pay the plaintiff’s costs”, plus “interest at 4% per annum on $530,000 from 1 September 2017 until the date of judgment” plus “interest on the costs”.
