Apostolopoulos v Hatzisarantinos and Ors trading as Omonia Constructions and Ors

[2008] NSWDDT 1

Dust Diseases Tribunal

of New South Wales

CITATION:	Apostolopoulos v Hatzisarantinos and Ors trading as Omonia Constructions and Ors [2008] NSWDDT 1
PARTIES:	Kosta Apostolopoulos (Plaintiff) Stelios Hatzisarantinos, James Katakouzinos and James Katsianis trading as Omonia Constructions (First Defendant) Sydney Water Corporation (Second Defendant) John Sirris trading as J & M Sirris/Excavations (Third Defendant) QBE Insurance (Australia) Limited (Fourth Defendant) Mercantile Mutual Insurance Limited (Fifth Defendant)
MATTER NUMBER(S):	185 of 2004
JUDGMENT OF:	O'Meally P
CATCHWORDS:	:- Application to take evidence outside New South Wales
LEGISLATION CITED:	Dust Diseases Tribunal Act 1989, S 13(7)
DATES OF HEARING:	30 January 2008
DATE OF JUDGMENT:	30 January 2008
EX TEMPORE JUDGMENT DATE:	30 January 2008
LEGAL REPRESENTATIVES:	Mr A J Gardiman of Turner Freeman appeared for the Plaintiff Mr J L Sharpe instructed by Thompson Cooper Lawyers appeared for the First Defendant Mr G R Hooper of dla Phillips Fox appeared for the Second Defendant Mr S D Taylor-Jones of Moray & Agnew appeared for the Fourth Defendant Mr J de Greenlaw instructed by McCulloch & Buggy appeared for the Fifth Defendant

JUDGMENT:

RULING

O'MEALLY P

1. This is a notice of motion on behalf of Kosta Apostolopoulos seeking an order pursuant to s 13(7) of the Dust Diseases Tribunal Act1989 (the Act) that his evidence be taken at Athens in Greece together with the evidence of his wife and of Dr Soulimiotis. S 13(7) of the Act provides:

(7) If the President is of opinion that the balance of cost and convenience in the proceedings so requires, the President may direct that the hearing of the proceedings, or part of the proceedings take place outside New South Wales.

2. Proceedings were commenced by statement of claim filed on 2 June 2004. Progression of the case was delayed while the parties waited for a decision of the Court of Appeal in other proceedings to become known. That appeal had a bearing on the case the plaintiff wishes to make here. In due course, that is to say on 30 April 2007, an order was made listing this case for hearing before me on 3, 4, 5 and 6 September 2007. At that time, and indeed for many years, the plaintiff was and has been resident in Greece. In April 2007 it was expected that the plaintiff would come to Sydney for his case, and arrangements were made by the defendants for medical examination of the plaintiff to take place here on various dates between 17 and 24 August 2007.

3. On 23 July 2007, the plaintiff contacted his solicitor by telephone and, following that and another discussion, this time with the aid of an interpreter, it transpired the plaintiff had been advised by his treating respiratory physician in Greece that he was unfit to travel to Australia. A translation of the report of his physician is annexed to the affidavit filed in support of the notice of motion. That report, by Dr Soulimiotis, recites that the plaintiff has been under his care for many years and suffers a number of respiratory disorders. He suffers both restrictive and obstructive pulmonary disease. Relevant to this application, Dr Soulimiotis, having noted the plaintiff's respiratory disorders, wrote:

Due to the above reasons, and because he has diminished Oxygenation . . . the patient can not travel by plain [sic] and certainly not for such a long trip of many hours. Furthermore, he now has indications of a lower lobe pneumonia, and is undergoing treatment with Klerithogonine.

4. The “long trip of many hours” is a reference to a trip between Greece and Australia.

5. The motion to take the plaintiff’s evidence in Greece first came before me on 27 August 2007. At that time the plaintiff was suffering pneumonia. Medical opinion then was that by reason of his pneumonic condition the plaintiff was unfit to travel to Australia. On that the doctors qualified by both the plaintiff and the defendants, were in agreement that he could not travel because of pneumonia. It was then thought appropriate to adjourn the hearing of the motion in order to ascertain the progress of that condition, and it was adjourned until 5 November 2007.

6. On 5 November 2007 it was again adjourned until today so that both the plaintiff and the defendants could obtain further medical opinion. So far as the plaintiff's present condition is concerned there is agreement between Professor Gianoutsos, who was qualified by his solicitors, and Professor Breslin who, on this issue, was qualified by the defendants, that the plaintiff is unfit to travel without supplementary oxygen. Respiratory tests led Professor Breslin, to the view that the plaintiff has severe airflow limitation. Notwithstanding that, he thought there was no reason why the plaintiff was unfit to travel to Australia, subject to the qualification that "[h]e would certainly need supplemental oxygen throughout".

7. Professor Gianoutsos has expressed the view that the FEV 1 aspect of his lung function test puts him into class 4, that is with an impairment of 51 to 100 per cent impairment of the whole person, and having considered all aspects of the tests, was of the view that he had 60 per cent impairment of the whole person.

8. It should be noted also that Professor Gianoutsos examined the plaintiff when he was visiting Greece. In his report of 19 September 2007 Professor Gianoutsos recommended that the plaintiff not be asked to return to Australia. On 15 January 2008, after further material was provided to Professor Gianoutsos, he thought there had been a minimal though insignificant degree of improvement. His opinion remained that the plaintiff was unfit to travel without supplementary oxygen.

9. Before me are two reports from Dr Ion Morrison, who is general manager of Qantas Aviation Medical Services. In a report which was provided by facsimile transmission on 5 November 2007 Dr Morrison said:

It is clear that Mr Apostolopoulos has significant lung disease and I agree with Prof Gianoutsos' opinion that his oxygen saturation would not be sufficient to travel to Australia without supplemental oxygen. . . .

I would not allow Mr Apostolopoulos to travel on Qantas services to Australia from Europe without supplemental oxygen. Additionally, I would have serious reservations about agreeing to allow him to travel with oxygen given the state of anxiety that would be generated in requiring him to do so. Such a course of action would potentially have unpredictable consequences which might have a deleterious effect on Mr Apostolopoulos' condition and possibly disrupt Qantas operations.

10. In a report of 15 January 2008 he said much the same and maintained the reservations expressed in his earlier report.

11. It has been submitted on behalf of at least one defendant that it is open to the plaintiff to travel with an airline other than Qantas, in respect of which no information has been provided to the Court. I think it fair to conclude, and I do so having travelled on many airlines with whom one would be comfortably assured of safety standards, that their protocols for carrying ill passengers are identical with those of Qantas or more stringent. That aside, however, I think it reasonable that the Tribunal approach the question accepting Qantas’ standards and protocols as appropriate to apply.

12. Various estimates have been made of the costs of travelling, but costs are only one factor which s 13(7) of the Act requires me to consider. The notice of motion seeks orders that not only the plaintiff's evidence be taken in Athens but also the evidence of his wife and treating doctor. The costs of bringing the plaintiff's wife and his treating doctor to Australia must be put in the balance. All in all, bearing in mind that in some respects the interests of the defendants coincide, so that multiple representation might be avoided, it is my view that the balance of cost and convenience in the proceedings require the plaintiff's evidence and the evidence of his wife and Dr Soulimiotis be taken in Athens in Greece. Moreover, it should be accepted that if the plaintiff is not to come to Australia, one or more of the defendants would qualify medical opinion in Greece. It might also be that lay evidence would be called there.

13. In order to avoid the complex procedure and protocols under the Convention for the Taking of Evidence Abroad in Civil or Commercial Matters (18 March 1970) the parties have agreed that a judge of the Tribunal may be appointed a commissioner to take evidence, that the judge have authority to admit and reject evidence, to draw inferences and make findings on credit.

14. Costs of this application are reserved.

Mr A J Gardiman of Turner Freeman appeared for the Plaintiff

Mr J L Sharpe instructed by Thompson Cooper Lawyers appeared for the First Defendant

Mr G R Hooper of dla Phillips Fox appeared for the Second Defendant

Mr S D Taylor-Jones of Moray & Agnew appeared for the Fourth Defendant

Mr J A D de Greenlaw instructed by McCulloch & Buggy appeared for the Fifth Defendant