Ali v Allianz Australia Insurance Limited (No 2)
[2016] ACTSC 172
•12 July 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ali v Allianz Australia Insurance Limited (No 2) |
Citation: | [2016] ACTSC 172 |
Hearing Date: | 11 July 2016 |
DecisionDate: | 12 July 2016 |
Before: | Mossop AsJ |
Decision: | Judgment be entered for the plaintiff in the sum of $32,260.75 |
Catchwords: | TORTS – PERSONAL INJURY – Workplace injury – Employer liable for failing to provide a safe system of work – Assessment of damages – No issue of principle |
Legislation Cited: | Corporations Act 2001 (Cth), s 601AG |
Cases Cited: | Ali v Allianz Australia Insurance Limited [2016] ACTSC 152 |
Parties: | Nazem Ali (Plaintiff) Allianz Australia Insurance Limited (Defendant) |
Representation: | Counsel Self-represented (Plaintiff) D Shillington (Defendant) |
| Solicitors Self-represented (Plaintiff) King & Wood Mallesons (Defendant) | |
File Number: | SC 359 of 2014 |
MOSSOP AsJ:
Introduction
These proceedings were commenced by originating claim on 13 August 2014. An amended statement of claim was filed on 29 October 2014. The plaintiff has alleged that he was employed by a company called Pro Cement Rendering Pty Ltd. He alleges that he commenced full-time work with the defendant on 15 October 2011. He alleges that on 17 October 2011 he was directed to undertake work at 14 Mokare Street Ngunnawal and that he was injured while using a jackhammer to remove cement rendering. The accident is alleged to have occurred by reason of the negligence and breach of contract of his employer.
The plaintiff is alleged to have injuries to his ribs, right palm, right chest wall and “cardiac problems”. An extensive list of disabilities is set out. A claim is made for economic loss alleging that he remains totally incapacitated since the accident on 17 October 2011. A claim is made for out of pocket expenses and domestic assistance.
At the hearing of the proceedings Mr Ali was unrepresented. The circumstances in which his most recent solicitors ceased to act are described in my earlier decision: Ali v Allianz Australia Insurance Limited [2016] ACTSC 152. Although initially I considered that Mr Ali was seeking an adjournment of the hearing, it became apparent that he did not consider that there was anything to be gained from adjourning the hearing and I considered him to have withdrawn any oral application for an adjournment. He gave evidence in support of his claim and was cross-examined. He tendered five exhibits. Those exhibits do not include any expert medical evidence. No expert medical reports had been served by the plaintiff.
The defendant tendered a two-volume bundle of documents which included the medical records that had been obtained by the defendant pursuant to subpoenas or notices for non-party production, as well as two expert medical reports. The expert medical reports were from Dr Raymond Wallace, an orthopaedic surgeon and Dr Mark Herman, a cardiologist. The defendant did not call any lay evidence.
The defendant admitted that the plaintiff was entitled to bring proceedings pursuant to s 601AG of the Corporations Act 2001 (Cth), that it was the workers compensation insurer of Pro Cement Rendering Pty Ltd and was liable to indemnify Pro Cement Rendering Pty Ltd for the acts and or omissions pleaded in the statement of claim. The defendant admitted that the plaintiff was employed by Pro Cement Rendering Pty Ltd as a cement renderer.
The accident
The plaintiff explained that when he was required to work at the site he was required to remove cement on the outside face of a portico above a staircase. Although his evidence was somewhat difficult to understand, it appeared to be that his boss was present on site but left to go and get some lunch. In order to remove the cement from the outside face of the portico he stood on a working platform on an adjacent balcony and leaned out over the balustrade so as to access the outside face of the portico. The location of this area is shown in Exhibit 1 photograph 1. He was then using an electric jackhammer to remove the render. It is self-evidently a somewhat precarious and unsatisfactory method of accessing the outside face of the portico creating an obvious risk of falling because of the requirement to lean out in order to access the area being worked upon. When doing this he fell from that position over the balustrade and down onto the ground adjacent to the base of the staircase. He fell onto the rubble which was the product of his work on the render above. Based on photographs in Exhibit 1, that distance appears to be a total distance of 2 to 2½ m. He said that he fell on his right hand side and that he felt a “shake in my heart”. He suffered a cut to the base of his right hand which was bleeding. He had pain in his right side. He pulled himself off the rubble on which he had fallen and called his boss. He described himself as having suffered a heart attack. He said that he had the sensation of observing his body as if he was looking at it from a balloon floating away. He was taken to Calvary Hospital by his boss. He said that the doctor at Calvary Hospital told him that he had had a heart attack. He said that he had broken three ribs. After his accident scaffolding was erected in order to complete the rendering job.
The plaintiff’s evidence about the consequences of the accident
The plaintiff’s evidence was that the accident had resulted in him restricting his activities because he was scared about his heart condition. He gave evidence that he had been restricted in his sexual relations with his wife, that he had stopped eating spicy food, that he no longer drank alcohol and that it had affected his friendships. The interference with sexual relations had led to him separate from his wife. He said that his confidence had gone to zero and he had lost trust in his body. He also gave evidence that medication for his heart condition had destroyed his memory.
The plaintiff was born in Iraq in 1965. In 2003 he moved to Australia. English is his second language and he had some difficulty understanding proceedings and giving his evidence as a result of this. He has suffered from diabetes, hypertension and cholesterol problems since about 2003. In cross-examination he accepted that he had diabetes and high blood pressure. He described his cholesterol problems as “not too bad”. He agreed that he had had a stroke in 2010. He denied that he had separated from his wife in 2011. He agreed that after the accident he had gone to the gym and attended the gym five or six times per week. He was able to do a 100 kg bench press. He said he also went to the gym to go to the steam room and sauna.
The expert medical evidence
Dr Mark Herman assessed the plaintiff for the solicitors for the defendant on 11 November 2014 and reported to them on 24 November 2014. Dr Herman recorded the findings upon admission to Calvary Hospital as well as the current complaints of the plaintiff. Under the heading “summary and assessment” Dr Herman recorded:
Mr Ali is a 49-year-old gentleman whom on 17 October 2011 sustained an injury at work resulting in multiple rib fractures, decreased consciousness and a subsequent admission to Calvary hospital. He did not report chest pain, had no enzyme elevation consistent with myocardial damage and although his initial ECG was a little suspicious of ischaemia, this occurred in a setting of significant left ventricular hypertrophy and hypertension (which may have provoked the pattern). Subsequent investigations including an echocardiogram and stress echocardiography have revealed no evidence of ischaemia or left ventricular systolic dysfunction and he currently reports no chest pain suspicious of angina.
He goes on to say: “In my opinion, the plaintiff did not suffer a cardiac injury as a result of the alleged fall.” As to his present condition he says:
Mr Ali reports rather atypical chest pain which occurs randomly and has no cardiac basis. He has had a stress echocardiogram performed in 2012 which excluded ischaemia as a probable cause of his chest pain syndrome and his current chest pain is certainly not suggestive of coronary artery disease.
It is important to note that Mr Ali placed considerable reliance upon the records in the discharge referral from Calvary Hospital dated 20 October 2011 (Exhibit 5). Although he obviously had difficulty with reading English he drew particular attention to a portion of the text on that document which he had put brackets around and which he said he had been told by a doctor friend of his indicated that he was diagnosed as having had a heart attack. The text that he drew attention to was as follows:
On arrival at Calvary, patient was pale and sweaty, ECG showed ST depression with T-wave inversion on lead 1, avL, V3-V6, these changes resolved with increase in BP and analgesia. Denied having chest pain. Initial Trop negative but reported to increase to 0.07 (this Trop measurement was not found anywhere in pathology afterwards).
This is the text which was referred to by Dr Herman in his history and specifically considered by him in his report. In the summary and assessment quoted above Dr Herman made specific reference to the initial ECG being a little suspicious of ischaemia, but described the reasons that such a result might have occurred. I accept the opinion of Dr Herman that notwithstanding the features to which the plaintiff drew attention he did not suffer any heart attack caused by the accident and suffered no cardiac injury as a result of the fall.
Dr Raymond Wallace an orthopaedic surgeon reported upon the plaintiff for the defendant on 8 February 2013. He had examined the plaintiff on 31 January 2013. He observed a 4 cm transverse laceration at the base of the hypothenar eminence on his right palm which was well healed. He recorded that x-rays taken on 2 November 2011 showed undisplaced fractures involving the fourth fifth and sixth right sided ribs. He found no evidence whatsoever of any ongoing disabilities at his chest wall or right hand. His opinion was that the plaintiff’s right rib fractures would have settled within eight weeks of the injury or by mid December 2011. He said that his ongoing complaints of pain at his chest wall cannot be explained on the basis of any known pathology.
Other documentary material
Exhibit 6 was 660 pages of records which included documents produced upon subpoena or notice for non-party production by various entities including the gym which the plaintiff attended, the Calvary Hospital and various treating general practitioners.
The medical records of his general practitioners show regular involvement with them relating to his underlying conditions of diabetes and high blood pressure and a variety of other minor complaints.
In 2008 he complained to his general practitioner of suffering from low back pain so bad that he could not work.
Records of the Calvary Public Hospital indicate that he was admitted from 6 to 10 June 2010 as a result of a stroke, but discharged himself against medical advice. During his stay in hospital he had become increasingly anxious and complained of a number of symptoms including an accusation that someone had defecated in his tea.
In April 2011 he attended his general practitioner complaining of chest pains.
In August 2011 he continued to complain of lower back pain including pain radiating to his feet.
Calvary Health Care records show that he had presented shortly after 1 o’clock on 17 October 2011 at the emergency department and the admission appears to have been provoked by the need to investigate his heart condition. He was formally admitted from 18 October 2011 until 20 October 2011. In the emergency department he was administered morphine for pain. The hospital notes are consistent with the plaintiff’s description of the accident namely that he fell, rang a friend to come and help and that on arrival the friend found the plaintiff to be unsteady on his feet with pain in his back and that on the way to the hospital the plaintiff became unresponsive, was groaning, stiff and pale. On arrival at Calvary he was pale and sweaty.
It appears that the echocardiogram conducted by his treating cardiologist was on 20 October 2011 at 4:34pm and the report ultimately signed by his treating cardiologist on 22 October 2011, two days after his discharge.
The medical records obtained from the plaintiff’s pharmacist by the hospital upon the plaintiff’s admission indicated that he was taking a variety of medications.
The plaintiff made a workers compensation claim in relation to his accident. In his claim form dated 5 January 2012, the plaintiff identifies the injuries that he suffered as “3 broken ribs injury/brake to hand”. There is no mention of any heart condition. Exhibit 6 tab 15 demonstrates that total payments made by the defendant amounted to $2510.75.
The plaintiff joined the Club Lime gym on 22 December 2011, eight weeks after his discharge from hospital. This was consistent with the time predicted by Dr Wallace by which his broken ribs would have recovered. Letters provided by his general practitioner in 2012 to Club Lime indicated that he suffered from hypertension and diabetes and that those conditions were well controlled. The Club Lime records show that he attended the gym on 871 occasions between December 2011 and October 2014.
He continued to complain of right-sided chest pains to his general practitioner until the second half of 2012.
The evidence that the plaintiff gave in relation to the causal effect of the accident on his marriage is inconsistent with the documentary records that are available, which indicated that he had separated from his wife prior to the accident:
(a)Upon his admission to Calvary Hospital in June 2010 he identified his marital status as separated.
(b)Upon his admission to Calvary Hospital following the accident the plaintiff identified his marital status as separated.
(c)On his Calvary Hospital record relating to an admission on 18 September 2012 is marital status is identified as “separated”.
Notwithstanding the outcome of the investigations upon his admission in 2011, the plaintiff appeared to continue to believe that he had suffered a heart attack. A questionnaire he completed shortly prior to an admission in 2012 indicated that he had suffered a “heart attack or infarct” “one year ago”.
In August 2012 he was continuing to complain of chest and upper back pain. At this point he was prescribed Endone. In November 2012 the doctor records that “lawyer declined case. Need long-term analgesia: Endone for breakthrough”. He was not in fact prescribed Endone by his doctor at that point although in December 2012 he was. He appears to have continued being prescribed Endone.
In November 2014 the plaintiff complained to his general practitioner of ongoing left shoulder pain that was not improving with analgesics.
In October 2012 the plaintiff was admitted to hospital after being assaulted by his housemate and landlord during an altercation. He received assistance from the legal aid office in relation to an application for financial assistance pursuant to the Victims of Crime (Financial Assistance) Act 1983 (ACT) in late 2013 and early 2014.
Liability
The defendant did not wish to be heard on the issue of liability or in relation to the pleaded defence of contributory negligence. I am satisfied that Pro Cement Rendering Pty Ltd is liable in tort arising from its failure to provide a safe system of work. The plaintiff had only commenced employment with his employer the day before the accident. There is no evidence that he received any training or instruction as to how to carry out the work. The system of work adopted, with the knowledge or acquiescence of his employer, was clearly unsafe. It involved reaching out in an unsecured matter and the manipulation of a jackhammer so as to remove render in circumstances which would clearly have led a worker to be in an unstable position where there was a very significant risk of a fall. Alternative methods including use of a ladder or scaffolding were clearly available but not adopted. It is not necessary to resolve the claim in contract as success in that claim would not affect the quantum of damages. The plaintiff was not contributorily negligent.
General Damages
The plaintiff suffered a fall from 2 to 2½ m onto a hard surface and suffered a laceration to his right hand and three broken ribs. He was admitted to hospital for investigation but that disclosed no heart related problem caused by the accident. Because of the need to undertake various investigation relating to his heart he is likely to have suffered some anxiety during his admission as to the impact of the fall. However, he is likely to have recovered from his broken ribs within a period of eight weeks. I am not satisfied on the material available that is complaints of pain after that were causally related to the accident. I am not satisfied that he has suffered any ongoing disabilities as a consequence of the accident. In that regard I accept the evidence of Dr Herman and Dr Wallace. I am not satisfied that his erroneous beliefs about the accident have been the cause of any significant social consequences for him. Specifically, I am not satisfied that it caused him to separate from his wife.
In those circumstances I award general damages in the sum of $25,000. I will award interest on that amount based on the whole of the damage being suffered between the accident and approximately December 2011, namely $4750 (4.75 years at 4%).
Out-of-pocket expenses
I am satisfied that the out-of-pocket expenses paid for by the defendant related to the injuries suffered in the accident. Those amounts appear to be for payments to general practitioner, a physiotherapist and interpreters. The total amount is $2510.75.
The plaintiff tendered prescription histories from his pharmacist. These histories show that the plaintiff takes a number of different medications. The precise purpose of these medications is not made clear although the documents do have annotations made by a pharmacist. An annotation dated 29 June 2016 provides:
Mr Ali has received several medications related to his heart condition in the last six months. They include metoprolol, omlodipine, olmetic plus and prazocin. They are listed on his history.
Having regard to the date of the annotation, the reference to the last six months is a reference to the months in 2016.
On a full dispensing history there is a note that the plaintiff commenced metoprolol, a blood pressure and chest pain medication, on 31 January 2012 and has taken it regularly since then.
However, the dispensing history from a different pharmacist, which was provided to the Calvary Hospital at the time of his admission on 18 October 2011, indicated that the plaintiff was taking metoprolol and had been taken it since 11 August 2010, that is, well prior to the accident.
The oral and documentary evidence is insufficient to prove on the balance of probabilities that the plaintiff has been required to take any of the medications listed on these documents as a consequence of the accident on 17 October 2011. Specifically, in so far as the evidence involved the suggestion that the requirement to take metoprolol was a consequence of the accident, it is clear that he took metoprolol prior to the accident and the accident has not been shown to affect his requirement for that medication.
Other damages claimed
The statement of claim includes a claim for economic loss as a result of the fact that the plaintiff has not returned to work since the accident or received any weekly incapacity payments from the workers compensation insurer. The employer’s workers compensation form discloses that his wage at the time of the accident was the equivalent of $1584 per week. He had, however, been employed for no more than 2 days and there is no evidence as to the basis upon which he was employed. The evidence does not establish that any failure or inability to obtain employment after the accident was caused by the accident. Any allegation of a physical incapacity appears to be inconsistent with the records relating to his gym membership and he did not give evidence of any search for or difficulties in obtaining employment.
An unparticularised claim was made for domestic assistance in the past and for the future. The evidence does not justify any award for damages of this nature.
Summary
In summary, the damages that I award are as follows:
| General Damages | $25,000 |
| Interest on general damages | $4750 |
| Income Loss | $0 |
| Griffiths v Kerkemeyer | $0 |
| Out of pocket expenses - past | $2510.75 |
| Interest on past | $0 |
| TOTAL | $32,260.75 |
Orders
I will order that judgment be entered for the plaintiff for the total amount identified above. I will hear the parties in relation to costs.
The order of the Court is:
1. Judgment be entered for the plaintiff in the sum of $32,260.75.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 15 July 2016 |
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