Hassan v Southern Meats Pty Ltd - [2004] NSWSC 72

No judgment structure available for this case.

CITATION: HASSAN v SOUTHERN MEATS PTY LTD [2004] NSWSC 72 revised - 27/05/2004

HEARING DATE(S): 3, 4, 5 December 2003

JUDGMENT DATE:
20 February 2004

JURISDICTION:
Common Law

JUDGMENT OF: Adams J at 1

DECISION: Judgment for the plaintiff in the sum of $1,551,793 plus interest to be determined. Defendant to pay the plaintiff's costs.

CATCHWORDS: Industrial accident - worker tripped over hose - liability of employer - blindness in left eye - psychogenic blindness in right eye - causation - uncertain prognosis - calculation of damages

LEGISLATION CITED: Workers Compensation Act 1987 s151G

CASES CITED: Fox v Wood (1981) 148 CLR 438

PARTIES :
Abraham Emam (formerly known as Ibrahim Hassan) (Plaintiff)
Southern Meats Pty Limited (Defendant)

FILE NUMBER(S): SC 20167/03

COUNSEL: B J Gross QC with T J Boyd (Plaintiff)
J A McIntyre SC with P M Morris (Defendant)

SOLICITORS: Cameron Gillingham Boyd (Plaintiff)
Moray & Agnew (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

FRIDAY 20 FEBRUARY 2004

20167/03 HASSAN v SOUTHERN MEATS PTY LIMITED
JUDGMENT

1 HIS HONOUR: This action arises out of a fall by the plaintiff (who has changed his name to Abraham Emam) at the defendant’s abattoir at Goulburn, where he was employed as a Halal slaughterman, on 1 February 1999. Tragically, a knife that he was holding at the time penetrated his left eye, which was blinded. The essential dispute concerning this fall is whether it occurred, as the plaintiff asserts, when he tripped over a hose which had been carelessly left in his path from the knife sharpener to the cutting table or whether he simply misjudged his tread on some intervening steps. It is, in substance, agreed that if the former was the case, he is entitled to recover damages for negligence, whilst in the latter event, there is no negligence established on the part of the defendant. I have concluded, for reasons which I will shortly state that, indeed, the plaintiff did more probably than not trip on a hose as he claimed and that, had the hose been properly stored, the accident would not have happened.

2 The much more difficult issue in this case is that, although it is undisputed that the blindness in the plaintiff’s left eye was caused by the accident, the plaintiff also alleges that he has, to a varying but substantial extent, lost the sight also in his right eye. This cannot be explained by any physical injury: the eye is physically normal. The two principle questions that arise are: firstly, whether the psychiatric cause of the plaintiff’s blindness was caused by his other injury (and hence by the accident) or by a pre-existing constitutional psychiatric condition unaffected by the intervening accident; and secondly, the probability that the blindness he experiences in that eye will continue and, if so, for what period. The most obvious question, namely, whether the plaintiff is feigning his right eye blindness, has not really been raised by the defendant, although it tendered medical reports to the effect that such a possibility cannot be certainly excluded.

3 The plaintiff was born on 8 February 1956 in Suez, Egypt. Accordingly, he is presently aged 48 years and was almost 43 years of age at the time of the accident. He had married in 1984 and has four children. However, it appears that he and his wife separated some time before the accident. They came together for a period after the accident so that the plaintiff could be cared for, but this cohabitation did not last. His four children are aged 9, 12, 15 and 17 years. The two younger children live with his ex-wife and the older boys live with the plaintiff.

4 The plaintiff left school aged 15 and trained as a fitter and turner but, at the age of 17, was drafted into the Egyptian army and served in the Egyptian armed forces in what has been called the Six Day War in 1973. He was captured by the Israelis and kept a prisoner of war for about nine months where, he said, he was well treated. When he was released from that incarceration, he returned to Egypt but was then detained, for what I understand to be political reasons, by the Egyptian government for about eleven months. He said that he was very depressed as a result of this imprisonment which he found “quite hard”. On his release he went to work as a fitter and turner in an electrical factory in Cairo. He left Egypt in 1977 later and travelled to Kuwait, France and England to work.

5 The plaintiff came to Australia from England to join one of his brothers, with whom he worked for about six or seven years in a cleaning and pest control business. In the mid-1980s, the plaintiff commenced to operate his own contract cleaning business but in the latter part of that decade, he suffered a low back injury which put him off full time work for a time. That injury eventually resolved. In the 1990s the plaintiff worked as a spray painter, initially as an employee and then operating his own spray painting business. During this time he undertook a TAFE course for about three years, training as a spray painter and also undertaking a fibreglass course. For reasons to which it is unnecessary to refer, he found himself unemployed in 1994 and was offered work by a supervisor with the Islamic Council to be trained as a Halal slaughterman. The plaintiff undertook this training and worked at a number of abattoirs as a Halal slaughterman, eventually finishing up at Goulburn, working for the defendant in about 1997.

6 The location in the abattoir where the plaintiff worked was called the stick hole, so called because that is where the sheep are killed. The particular stick hole was a new extension of the abattoir, which had only been in use for about three weeks or so at the time of the accident, although the abattoir itself had been built four years previously. The sheep was placed on a conveyor belt, having been stunned, and its throat was then cut by the plaintiff and another person with whom he worked, in rotation. For obvious reasons, the knife used for this purpose required to be frequently sharpened. The sharpening stone was fixed on a T-bar, a little over a metre from the bottom step of three steps leading up to what may conveniently be called the slaughtering deck. The sharpening stone T-bar was itself on a platform (the middle level) which led down, via one step, to a small area, roughly triangular in shape where hooks were placed on a wall for aprons and a cold water dispenser and the external plumbing for the wash down hose were situated (the bottom level).

7 The hose was about 30 metres long, 2 inches wide and relatively stiff. It was used by employees called “floor boys” to wash down the floors at and around the slaughter deck at the end of each run. It was not easy to coil and, at the time of the plaintiff’s accident, there was no hook or other apparatus to stow it off the floor. A large hook has since been installed on the wall at the bottom level for this purpose. I understand that it had always been planned to do so but, at the date of the accident, it had simply been an outstanding uncompleted job. One of the floor boys, who was working on the day of the accident, said that, when he finished using the house, he left it –

“Just wrapped up on the floor, which sort of just, you know, put it as neat as we could but because of the size of it there wasn’t much area and we would just have to leave it on the floor but roll it up as neat as we could. We were always in a bit of a hurry to get out. A couple of times we probably didn’t roll it up as best we could have, didn’t really leave it real neat. Always just, you know, do it as quick as we can and get out of there.”

8 One of the floor boys was a Mr Fitzgibbon, whose shift, as it happened on the day in question, commenced after the accident. Mr Fitzgibbon said that from time to time both he and the other floor boy (Wayne Capner) had left the hose on the intermediate deck, both –

“because we were so busy … [we] never really wrapped it up at the time, unless it was at the end of the shift. We wouldn’t roll it up through the shift, we would chuck it in the corner because we knew we would have to use it every half an hour or twenty minutes.”

“… right in the corner on the bottom of the stairs, around the stairs, could have been on the stairs, anywhere around there. It is a pretty long hose, it might not have all sat in the corner, could have been up on the step [ie, the middle level].”

9 Mr Capner said that he usually simply threw the hose down in this disorganised way when he went for his “smoko”. The plaintiff’s accident happened whilst Mr Capner was having his smoko in another part of the plant. He was unaware of it when he returned to the stick hole and noticed a knife on the ground. He picked it up and sat it on the sharpening stone, not thinking anything of it at the time. Mr Capner said that the hose was “still there”, meaning (I think, though it is somewhat uncertain) that the hose was on the same level, namely the middle level where he dropped it. In cross-examination, Mr Capner said that he did not have any particular practice as to stowage of the hose. When he went for his smoko he would simply leave the hose on the ground and “I was out of there”. This had, I must say, the ring of truth about it. He agreed that he had no specific recollection of where he left the hose before the plaintiff’s accident. Although this witness did have a criminal record for a serious crime involving dishonesty, so that his evidence must be considered with caution, in the end I am of the view that Mr Capner was probably telling the truth. He was not a particular friend of the plaintiff; so far as the evidence went, he was only a work acquaintance.

10 The defendant called Mr Ronald Bridge, who was the supervisor on the kill floor at the time of the accident and is still employed by the defendant. He gave evidence that he had seen the plaintiff sharpening his knife in a somewhat risky way and leaning over to use the water bubbler when he held his knives close to his face. Mr Bridge told the plaintiff that these were unsafe practices. However, I do not think that the plaintiff suffered his eye injury as a result of this kind of conduct. As I have already said, I accept the plaintiff’s evidence that, indeed, he tripped whilst holding the knife and this is how he suffered his injury. More significant was the evidence of Mr Bridge that he received a call on his two-way radio from the medical centre where the plaintiff was then being treated telling him about the accident, and that he went immediately to the site of the accident and observed that the hose was thrown over in the corner of the bottom level and no part of it was on the middle level. He said that it took him at least three or four minutes to get to the accident site after he was called and that nobody else was there at the time. However, the evidence does not disclose how long after the plaintiff arrived at the medical centre Mr Bridge was informed of the accident. It is obvious that persons may well have kicked the hose away in the meantime or, indeed, that the plaintiff may have done so or that someone simply removed the hose from the middle area because it was seen to be dangerous, all this, of course, before Mr Bridge arrived. Mr Bridge also said that, when not in use, the hose was usually left in the bottom level, although (as I understand it) he did not visit that part of the plant after every run.

11 The defendant also called Mr Steven Graham, who was the production manager at the abattoir and is still employed by the defendant. Amongst his other duties, Mr Graham visited the stick hole in question at least once and possibly more each day as he made his rounds of the plant. He said that the hose was always located in the bottom area except when it was being used. He said that he was working on the slaughter floor on the day of the accident and went to the first aid clinic after receiving a message about the accident on his two way radio. Mr Graham took the plaintiff to the hospital from the first aid section.

12 The plaintiff’s account of his accident is that he commenced his shift on 1 February 1999 at 2 pm. A shift involves three runs each of about two hours, with a break between each run. The plaintiff said that, during the break which preceded the third run (commencing at 8.30 pm) the plaintiff was sharpening his knives whilst Mr Capner was hosing the floor and walls of the stick hole, that he went to the bottom level to get his knives from the pouch hanging on the wall and then started to sharpen them. Mr Capner was washing the floor next to him and then finished and left, throwing the hose on the floor as he usually did. The plaintiff was adamant that the sharpening stone T-bar was in the bottom level but I have no doubt that he is mistaken about this and that the T-bar was in fact on the middle level. However, I consider that the plaintiff’s error is but the result of faulty memory and does not reflect on the reliability of his evidence as to where or why he tripped. Furthermore, I regard him as an honest witness. At all events, having sharpened his knives, the plaintiff was moving towards the stairs to a sterilising bowl where the knives were washed, when his leg somehow got caught on the hose and he fell, with one of the knives striking his eye. He was on the middle level just before the first of the three steps leading up to the killing floor. He said that it happened very quickly and he was unable to keep his balance. He said that he realised his eye was injured moments after it was in fact stabbed, that he called for help and was taken by one of the other employees to the infirmary. This employee was not identified and, of course, not called. It seems almost certain that, considering the nature of the plaintiff’s injury, he would have needed help to get to the infirmary. It is not unreasonable to infer that this employee may well have kicked the hose away when assisting the plaintiff.

13 I am satisfied on the whole of the evidence that indeed the plaintiff did fall much as he described by tripping on the hose, though I have concluded that he is mistaken in his evidence that the T-bar was on the bottom level. I am also satisfied that failing to provide a hook or other device for the safe stowage of the hose amounted to a negligent failure to provide a safe place of work for the plaintiff. It was clearly foreseeable that the plaintiff would move in the area between the bottom level (where the pouch rack and aprons were situated) to the T-bar on the middle level and then up to the killing table and that he might well be carrying knives whilst doing so. It was also clearly foreseeable that the plaintiff would move from the killing table to the T-bar and back. Leaving a hose on the floor would obviously constitute a real danger if a person in the plaintiff’s position misjudged their step or otherwise failed to observe that they might trip over the hose. Accordingly, the plaintiff has established that the defendant is liable for the perforating injury to his left eye and for other foreseeable injuries that were caused by the accident.

14 Mr McIntyre SC, for the defendant, submitted that the plaintiff was guilty of contributory negligence upon the basis that the plaintiff should have appreciated that there was a hose in his path and he should have either moved the hose or walked more carefully. In the former case, he could have put the knives down and should have done so. In an ideal world, of course, we would all look where our feet are treading but the reality is that we cannot do so all the time and do not do so when we are concentrating on other parts of the surrounding environment or are distracted, especially when we are concentrating on the next task we have in hand or our immediate destination. The failure of the plaintiff to consciously note the presence of the hose when he was going about his ordinary duties does not seem to me to be negligent in the relevant sense. Certainly, it went no further than momentary inadvertence, misjudgement or inattention. Accordingly, I reject the submission that there should be a reduction in the plaintiff’s damages for any contributory negligence.

15 The plaintiff was initially taken to Goulburn Base Hospital, from the infirmary at the abattoir, where he was treated in the emergency department, and then taken by air ambulance to the Sydney Eye Hospital. On the following day, 2 February 1999, the plaintiff was transferred to Ashfield Private Hospital. He came under the care of Dr John Milverton, an ophthalmic surgeon. Dr Milverton said that examination of the plaintiff’s left eye under the operating microscope showed a severe penetrating injury with contamination by what he thought was probably animal hair. He said there was a considerable degree of vitreous prolapse and the anterior chamber was full of blood. Dr Milverton repaired the scleral penetrating wound, excised the prolapsed vitreous and removed the blood from the anterior chamber. In respect of the left eye, it is not necessary to detail the extensive and continuing surgery which was required as the eye successively developed problems. I do not doubt, however, that this continuing treatment was distressing and painful for the plaintiff. For all practical purposes, apart from occasional and vague perception of light, the plaintiff has lost, from the time of his accident, 100% of vision from his left eye. In due course, the left eye will need to be removed and a prosthesis inserted.

16 Dr Milverton said that in early November 1999 the plaintiff complained that the vision in his right eye was becoming worse and Dr Milverton referred him to Dr Malcolm Capon and then to Dr Andrew Chang, who found no physical problem. The plaintiff presented himself at Sydney Eye Hospital on 31 December 1999, reporting that he was completely blind and the sister in casualty was unable to elicit light perception in the right eye. Dr Chang reviewed the plaintiff in casualty and said that he was able to encourage him to make out at least the chair in the corner of the room. On examination, his right eye was normal and the plaintiff was able to follow the finest slit beam of light without difficulty. The plaintiff was admitted to the hospital overnight and Dr Chang noted that, by the following morning, he was able to achieve count fingers vision. There was, of course, a risk of sympathetic ophthalmia. However, this has been investigated and excluded as an explanation for the plaintiff’s claimed loss of sight in the right eye or, indeed, as a future risk of any significance. When Dr Chang reviewed the plaintiff on 23 February 2000, the visual acuity in his right eye was count fingers but, again, there were no signs of physical disability. At that time he had perception of light in his left eye which was described by Dr Chang as a 95% incapacity.

17 The plaintiff was seen on 13 November 2002 by Dr Milverton, who thought that there might be a few areas of retina that could perceive vague light but this fluctuated between this perception and no perception of light. The plaintiff’s right eye was normal but he achieved no more than count fingers vision, for which there was, as is now obvious, no physical explanation. On 17 October 2003, Dr Michael Steiner saw the plaintiff, complaining of pain in his left eye for a week. On examination, he had a very vague perception of light in the left eye with vision in his right eye limited to count fingers at 1 metre.

18 It is not controversial that there is no physical cause of the plaintiff’s right eye blindness and that the symptoms reported by him have no physical connection with the injury to his left eye or, or for that matter, to the accident. The two possible explanations for the plaintiff’s right eye blindness are, not surprisingly, that he is feigning or that he has a psychiatric condition, which has led to his experience of being unable to see in that eye. The plaintiff gave evidence but was not cross-examined to suggest that he was feigning his experience of blindness or limited sight in the right eye and counsel for the defendant indicated to me that the fundamental issue in the case is what was the real chance of improvement in the plaintiff’s condition. The plaintiff gave the following evidence under cross-examination –

19 In September 2000, the plaintiff was referred to Dr Sanath De Tissera, a consultant psychiatrist, by his general practitioner. The plaintiff told the doctor that he had not been able to work since the accident to his eye and described what the doctor called symptoms of a major depressive order. He gave a history of depression with a loss of weight and insomnia; his concentration was impaired and his short term memory was poor; he had constant suicidal ideas of either taking a drug overdose or hanging himself; he described generalised anxiety symptoms such as sweating, palpitations and tremulousness; he had fits of rage and would smash up the house. The plaintiff told Dr De Tissera that this situation led to his separation from his wife about a month before the consultation. He had what the doctor described as “mood congruent delusions”. These delusions involved a man dressed in black with a black turban (“like the Ayatollah Khomeini”) pushing him onto the knife when he had his accident and on several other occasions, when he was standing on a railway station platform, he felt as if he was being pushed off the platform onto the rails. The plaintiff said that he could not get this man off his mind and was constantly preoccupied and in fear that he might be hurt. He felt guilty for no clear reason and that he was being punished. The doctor noted, amongst other things, that there was no family history of psychiatric disorder and that prior to the accident the plaintiff was a family man with friends and interested in soccer, having trained as a soccer referee. The plaintiff told Dr De Tissera that he was unable to pursue his recreational interests. The doctor diagnosed major depressive disorder and described the loss of vision in the plaintiff’s right eye as “psychogenic”, noting that the initial loss of vision in this eye followed a major argument with his wife. The plaintiff told Dr De Tissera that, over the three months immediately preceding the consultation, his vision had progressively improved so that he was now able to see fingers but that he tended to bump into people and was unable to read. The plaintiff was treated with amitriptyline. As at March 2001, Dr De Tissera thought that the plaintiff’s psychotic symptoms had improved but he still had residual symptoms of depression and anxiety. The plaintiff continued to be seen by Dr De Tissera at regular intervals with his last consultation on 23 August 2002. Amongst other things, the plaintiff complained of panic attacks and preferring to remain isolated at home, not mixing with people. His sleep rhythm was inverted, waking at 1 am and watching television. Although he had suicidal thoughts, the plaintiff said that he would not carry them out as he loved his children. There were ongoing complaints of hearing voices in his ear asking him questions about God and at times someone was sitting on his shoulder and muttering. There were visual, explicit hallucinations of the black-turbaned figure. Sometimes he had a device in his head with sparks coming out and he thought he would be electrocuted. In Dr De Tissera’s opinion, the plaintiff’s diagnosis remained that of a major depressive disorder with psychotic symptoms.

20 In March 2002, the plaintiff’s medication was varied to Risperdal, Endep and Efexor, which appears to have led to a progressive improvement in the plaintiff’s condition with a decrease in his auditory hallucinations. The doctor noted that the vision in his right eye became worse when the plaintiff was under stress and continued to think that it might well be psychogenic in origin. Dr De Tissera thought, as at August 2002, that the plaintiff’s prognosis with respect to his psychiatric disorder was good although he was likely to have ongoing residual symptoms of depression. He noted that the plaintiff remained socially isolated and was unfit for work. As I understand the doctor’s report, he thought that the plaintiff’s condition had stabilised.

21 The plaintiff had also been referred by his general practitioner to a Mr Bob Duncan, a clinical psychologist, who saw him first on 11 March 1999 then on thirty-one occasions at short intervals until 27 July 2000. Mr Duncan commenced seeing the plaintiff again in mid-October 2002 and thereafter more or less monthly to 23 October 2003. All in all, Mr Duncan had seen the plaintiff forty-nine times for a total of over fifty hours. Mr Duncan has written lengthy and helpful reports from time to time, which have been tendered. I do not intend to set them out in detail. It is sufficient, I think, to note that the plaintiff reported delusions and hallucinations involving a black-clothed, turbaned figure resembling the Ayatollah Khomeini, although these had ceased by 20 July 1999. He reported anxiety, depression, irritation, impulsive/aggressive behaviour, fear of walking in the street, memory blackouts of up to twenty minutes, difficulty with concentration, loss of weight and a sharp decline in his libido. His symptoms were substantially confirmed by his wife. The most marked symptom, of course, was the loss, fluctuating but progressive, of vision in his right eye, worse when he was emotionally distraught, especially after conflicts with his wife. As at September 2001, Mr Duncan’s assessment was as follows –

“Mr Hassan was a well-adjusted man before he injured his left eye at work on 1.02.99. Since the injury he has lost almost all vision in his left eye and has suffered chronic pain in the vicinity of his left eye and over the top of his head to the left occipital area. In addition he has been suffering from posttraumatic stress disorder (PTSD) since shortly after the injury to his left eye. Beginning in about September 1999 he developed a Conversion Disorder with sensory deficit. This latter condition has rendered him almost blind for practical purposes. Both mental disorders have persisted.”

22 Mr Duncan considered that the loss of vision in the plaintiff’s right eye was psychogenic in character and partially mediated by stress. Mr Duncan thought that, if there were a reduction of stress in the plaintiff’s life, the sight in his right eye might improve somewhat but the prognosis for PTSD is uncertain and, although it improves with treatment and may spontaneously remit, after two years’ duration Mr Duncan thought this was unlikely. It followed that the plaintiff was unfit for any work and was likely to remain so.

23 In his report of 21 January 2003, Mr Duncan noted a continuation of the plaintiff’s psychiatric symptomatology. He noted the plaintiff’s account of experiencing (which he had previously reported) a little man sitting on his right shoulder talking to him and to whom he sometimes responds, that this man comments on his behaviour and sometimes commands him to do things, mostly to smash crockery or other objects. His appearance had become more common and he now had a name, Kerdany. The plaintiff said that Kerdany is present a good part of the time. He gave Mr Duncan a confused account whether he believe that the Ayatollah Khomeini and Kerdany experiences were real or illusions. All in all, the frankly psychotic symptoms, which began to emerge about the middle of 2002 have become more prominent with some further functional deterioration in the few months before this report. Mr Duncan thought that the plaintiff’s prognosis was poor and, not surprisingly, that he was likely to remain unfit for all employment.

24 Mr Duncan’s last report is dated 30 October 2003. He noted that the severity of the plaintiff’s symptoms had fluctuated, including an abatement (regrettably temporary) in the recurrence of his hallucinations and the exacerbation of his irritability. He continued to take anti-depressive and anti-psychotic medication. His sight had not improved. There was improvement, however, in his depressed mood which was somewhat less than the previous year. Mr Duncan concluded that, although the plaintiff’s psychotic symptoms may have been a little better controlled, there were still periods of acute stress and there had been some further marginal deterioration in that the plaintiff now avoided all social contact. Again, his prognosis was poor and he was likely to remain unfit for all employment.

25 The plaintiff was referred by his general practitioner also to Dr Andrew McPherson, a consultant psychiatrist, who saw him on 29 November, 9 and 20 December 2002 and 10 January 2003. The history given to Dr McPherson is much the same as that related by Mr Duncan with perhaps some elaboration of the delusions and the hallucinations. Dr McPherson noted that problems with the right eye came on five months after the accident, slowly at first and then suddenly getting much worse at the end of 1999. Dr McPherson concluded his report as follows –

“The history provided suggests that Mr Eman has suffered the sudden onset of a psychotic disorder at the same time that he had a fall at work and damaged his eye with a knife. Since then he has suffered from psychotic symptoms together with depression, anxiety, and post-traumatic symptoms. Treatment with medications both anti-depressant and anti-psychotic drugs has only partially improved his condition.

Currently the provisional diagnosis is schizophrenia, mixed post-traumatic symptoms and somatoform disorder.”

26 In his report of 19 January 2003, Dr McPherson said that continuing psychiatric treatment of the plaintiff was needed and the outcome of such treatment was uncertain. He said that the patient needed psychiatric supervision with a psychiatrist every two weeks although this frequency could reduce to possibly four times a year over the next one to two years and might be required indefinitely if his psychotic disorder persists as, indeed, it has to date. It is evident from Dr McPherson’s later reports that, as at the time of his last consultation, this situation had not changed although the frequency of consultations had been reduced, as I understand it, to once a month.

27 Dr Hugh Jolly was qualified by the plaintiff for the purpose of giving a report and he saw the plaintiff on 30 September 2003. It is unnecessary to set out the details of the doctor’s report. Broadly speaking, it is along the lines of the material to which I have already referred. It is sufficient, I think, to state the Doctor’s summary which is as follows –

“Abraham Emam (then known as Ibrahim Hassan) suffered a penetrating injury to his left eye, going about his usual work, in February 1999. He sustained significant nervous shock. He has permanently lost sight in that damaged eye as a result, and his whole way and quality of life since has been adversely affected.

A post traumatic stress syndrome has resulted, probably PTSD, but certainly an intrusive and disabling mental condition, psychiatric injury in its own right.

As a direct consequence of nervous shock and all losses, Mr Emam has developed a form of major depression, again attributable psychiatric illness in its own right. The psychotic component to this disorder has been increasingly evident, such that to the present treating psychiatrist the condition is ‘schizophrenic’ in type. But for reasons discussed in my narrative, the conclusion that this psychotic condition is attributable seems unavoidable.

Presently, it appears quite genuinely that Mr Emam cannot see from his right eye. On the basis that physical pathology has been excluded, this is an hysterical complaint, and must be classified as conversion disorder, again attributable psychiatric illness in its own right.

A question as to whether sight in Mr Emam’s right eye will return, following determination of his case, is unanswerable. For reasons discussed in my narrative, …he will be at risk to relapsing psychiatric illness, lifelong.

I find it all but impossible to assess what resources might be called for in treatment, in the future … my ‘best guess’ is that for 12 months after settlement Mr Emam should see his psychiatrist monthly, particularly when he is taking large doses of psycho-tropic medication, and then on the presumption that his condition will settle to some extent the intervals between consultations should be two monthly then quarterly. As long as he is taking anti-psychotics, review must happen not less than quarterly. It would be reasonable for Mr Emam to participate in psychotherapy, for 12 months after settlement, to promote the return of visual ability…but this should not become an endless and fruitless quest for a Holy Grail.”

28 The defendant tendered a number of medical reports. Those from eye specialists do not, to my mind, significantly qualify the substance of the opinions expressed in the reports to which I have referred and it is unnecessary for me to deal with them further. The defendant, in relation to the plaintiff’s psychiatric condition, tendered reports which showed that the plaintiff had chronic depression in 1990 which required psychiatric treatment. It was described by Dr Monir Younan, the plaintiff’s then consultant psychiatrist, as a stress reaction caused by being assaulted by his wife’s brothers in January of that year. To that extent the histories given to the psychiatrists relied on by the plaintiff that he had no previous psychiatric history must be qualified. However, there is no medical opinion that suggests that this history significantly affects the conclusion that his present psychiatric condition substantially derived from the accident that caused the blindness in his left eye. It appears from a report by Dr Selwyn Smith, a psychiatric specialist qualified by the defendant, that the plaintiff gave him a history that his period of incarceration on his return from prison in Israel was very distressing to him and he experienced similar psychological symptoms to those associated with the loss of his vision. It was Dr Smith’s opinion that the plaintiff suffered from a pre-existent psychiatric disorder prior to the accident on 1 February 1999 and strongly suspected that he had also experienced a pre-existent Schizophrenic Disorder prior to it. He added, however, that he considered that the plaintiff had developed a number of psychological symptoms linked to his inability to re-engage productively at work, associated with the loss of vision in his left eye. These emotional and behavioural symptoms could, the doctor thought, best be described under the rubric of an Adjustment Disorder with depressed and anxious mood. He said that the differential diagnosis of the plaintiff’s deteriorating right-sided vision would include a Conversion Disorder, Factitious Disorder or Malingering. As I read Dr Smith’s report, he considered that the plaintiff’s history and symptoms were consistent with a Conversion Disorder but also consistent with feigning or the conscious intent to conjure up symptoms. He agreed that the plaintiff had experienced a psychotic illness, in all probability a Schizophrenic Disorder, but that this was a constitutional biochemical disorder not related to the loss of his vision. The doctor went no further, in relation to the possibility of malingering, than that it could not be categorically excluded and, as to a conversion disorder, that it could not be established beyond reasonable doubt. Having regard to the way in which this case was conducted by the defendant, I do not think that it would be right to conclude that the plaintiff was feigning. However, even if it were not for this factor, having regard to the entirety of the medical evidence, including that of Dr Smith, I am well satisfied that the plaintiff’s complaint of vision loss in his right eye or, perhaps more accurately, his experience of vision loss in that eye, is genuine, certainly I am persuaded on the balance of probabilities that this is so. Dr Smith opines that the plaintiff’s psychotic symptoms (I take it, apart from loss of vision in the right eye, if genuine) would at present not preclude him from re-engaging at work, as I understand it, upon the basis that it is being well controlled by medication. This is not the opinion of the doctors whose reports were tendered by the plaintiff and it is not my impression of the plaintiff, as I saw him in the witness box.

29 None of the psychiatric reports tendered by the defendant expressed the opinion that the plaintiff was or was probably feigning. The plaintiff did not require any of the doctors upon whose reports the defendant relied for cross-examination. The possibility of feigning, however, is so obvious that the fact that the defendant has been unable to lead any evidence suggesting feigning (except that the right eye is physically intact) when placed in the scales of the evidence of the plaintiff and his son, Nouredeen, and the other psychiatric evidence to which I have adverted, justifies the conclusion that the plaintiff indeed suffers from psychogenic blindness in respect of the vision in his right eye, quite apart from the appropriate way of regarding the manner in which the defendant conducted its case.

30 I do not doubt that some significance should be accorded to the pre-existing history of psychiatric problems but it is obvious from his work and family history that these had subsided or subsided substantially by the time of the accident. Whether the injury to his left eye resurrected a latent psychiatric illness or by virtue of the significant trauma of losing the sight of his eye his psychiatric disorder was created is, I think, not a conundrum which it is necessary for me to decide.

31 In the result, I am satisfied that the psychiatric symptoms demonstrated by the plaintiff following his accident, including his psychotic experiences, the delusions, hallucinations and other disordered experiences and behaviours were substantially caused by the accident and the consequent loss of sight in his left eye. For all practical purposes, he is not able to work and, whilst his present condition persists, is completely incapacitated from an employment point of view.

32 The plaintiff gave evidence that, prior to his injury on 1 February 1999 he was in excellent physical health and was also emotionally well. Although he did have emotional (and, I think, psychiatric) problems in 1990, he had been successfully treated for them and was not on any form of medication at the time of the accident. He said that he felt normal: “Like everybody else”. He had a love of soccer and for three years had taken up refereeing, which he did almost every weekend. I have mentioned that he worked in Goulburn. His wife and children lived in Sydney. Although his relationship was, regrettably, problematic, he continued to support his family and had a good relationship with his sons. The plaintiff said that he enjoyed his work as a slaughterman and I see no reason for supposing that he would not have continued in that employment, or something similar to it, for as long as he was able to work.

33 The plaintiff reported that, since his medication was last changed (see my above reference to Dr McPherson), his condition had improved somewhat and that he had not seen the Ayatollah Khomeini figure since then although, “I see just illusions”. He described the small man who sat on his shoulder. He was about six inches tall with long ears and big teeth. He talked to the plaintiff sometimes and protected him sometimes “from Khomeini types … from my wife.” The plaintiff said that at times this figure commanded him to do destructive things, to kill a pet dog, for example: “He says many things. He orders me. He comforts me sometimes. Sometimes very funny”. The plaintiff says that he appears when he is very stressed and that he knows that he is an illusion but, when he is stressed, “It is not illusion”. Since his medication changed, he has not seen this figure. He said that in January 2000 he was referred to the Royal Blind Society who gave him training in how to move safely at home and how to prepare meals and generally to be as independent as he could, having regard to his lack of vision. He said that, as he sat in the witness box, he could see his fingers at about arm’s length and at a little further distance is able to see a person moving but was unable to see any person past perhaps five metres or so. The plaintiff’s two sons live with him, the elder boy, Nouredeen, aged 17 years, takes care of him and for that reason is in receipt of a carer’s pension from the Commonwealth Government. The plaintiff’s sleeping has improved since the change of medication and also as I understand it, his sexual function has returned. The plaintiff continues to see Dr McPherson and Mr Duncan.

34 The plaintiff lives in Housing Commission premises with his two sons, the younger of whom goes to school and, as I have mentioned, Nouredeen looks after his father. The plaintiff and Nouredeen usually breakfast together and go out on three or four days a week to shop. He helps the plaintiff to shave the upper part of his cheeks so that he does not injure his eye but the plaintiff can finish his shaving. The plaintiff is independent in terms of washing and dressing but needs Nouredeen to help him choose his clothes. The plaintiff is able to make his own meals, having been trained by the Royal Blind Society to do so, to put tags on items and place them in a set position. The plaintiff said that Nouredeen aspires to be a motor mechanic and that his younger son also needs to find his own life. It seems to me that the plaintiff’s damages must be assessed upon the basis that it is likely that in the not too distant future both his sons will want to leave home and have a life of their own, which will leave the plaintiff to care for himself with such other assistance as he is able to procure.

35 The plaintiff said that, if his right eye recovered, he thought he could return to work and that it was the fact that he cannot see with his right eye that is really his problem. He feels that the medication has helped his psychiatric condition although, of course, there has not been any complete recovery in this regard, signified (as is obvious) by the fact that he has psychogenic blindness in his right eye.

THE CALCULATION OF DAMAGES

Plaintiff’s date of birth: 9.2.56 – 47 years of age

Date of accident: 1.2.99

Remaining working life to age 65: 17

5% multiplier for 17 years: 602.8

Life expectancy of 48 year old male: 32

5% multiplier for 36 years: 845

Non economic loss

36 This is governed by s151G of the Workers Compensation Act 1987, which was in force at the date of the accident. The substance of the provision is that the amount of damages to be awarded for non economic loss is to be proportioned according to the severity of the loss determined by reference to the amount which may be awarded in a most extreme case, here $232,400. Mr Gross QC, for the plaintiff, submits that I should assess his situation as justifying 80% of this sum. If the plaintiff had been rendered totally and irretrievably blind by the injury he suffered in the accident, it may be that such a high proportion of the amount payable in a most extreme case is justified although, even here, I think that 80% is somewhat too high. In order to assess this head of damages, it is necessary, as I see it, to determine as best I can the likelihood that the plaintiff will recover from his psychiatric condition to the extent that his experience of vision in his right eye will reflect its physical capacity. It is also necessary to consider the likelihood that other aspects of his psychiatric condition, such as delusions and hallucinations (the psychotic symptoms) as well as his depression, memory problems, anxiety, social isolation and the like will continue and, if so, whether there is a reasonable chance that they might moderate with time and medication. It is important, I think, to appreciate that these symptoms probably form part of a system, and are not independent. Even so far as the plaintiff’s experience right eye blindness is concerned, this has been ameliorated to some extent by the medication directed to ease his depression and anxiety and prevent hallucinations and delusions. The same assessment will need to be made, of course, in respect of the other relevant heads of damages, although it seems to me that the appropriate way of dealing with this issue is to commence with accepting total loss of vision in the left eye and fluctuating vision in the right eye but no better than finger counting at a metre but then to reduce the total amounts derived by applying an appropriate discount for vicissitudes, namely the likelihood that the sight in his right eye will substantially recover and that his other symptoms will lessen.

37 The plaintiff’s present position, as appears from his evidence, is that he has no sight in his left eye and limited sight in his right eye. But that limited sight is significantly different from total blindness. I need to take into account that, at times of anxiety or stress, the plaintiff’s vision in his right eye is substantially reduced, possibly to blindness or close to it. Nevertheless, the partial sight that he is able to experience in the right eye is likely to be available to him, I think, for most of the time. There will, of course, be times of anxiety and stress, perhaps extreme, which must be taken into account. For example, both his sons, as I have mentioned, will wish in a few years to have independent lives and families. The plaintiff may well find this separation a difficult one to manage, with consequent adverse effects on his psyche and, in all probability, on his ability to use his right eye. So far as the plaintiff’s other symptoms are concerned, they are controlled by medication but, except for what I have called the psychotic symptoms, not removed. He will need both medication and psychiatric/psychological help to a greater or lesser extent for the rest of his life.

38 The accident itself was, of course, a shocking one and I consider that the plaintiff’s pain and distress was likely to be very substantial, especially when he experienced the loss of vision in his right eye. His psyche, including his emotions, have been in turmoil for five years now, although in the last three or four months a change of medication has led to significant improvement of his condition. The life he led and the aspirations that he had as an individual, as part of a family and in the community have been blasted and he is largely without the personal resources to rebuild. Had it not been for the statutory direction, I would have awarded an amount in the order of $300,000 under this head as fairly reflecting the plaintiff’s pain and suffering in monetary terms. However, I am constrained to award instead the sum of $185,000.

Past Economic Loss

39 I have formed the view that the plaintiff would probably have remained in employment with the defendant as a Halal slaughterman up to the present time (and, indeed, into the future). Upon this assumption, there is no dispute that the appropriate sum payable under this head is $189,165. It follows that the plaintiff’s past lost superannuation entitlements are $23,050 and the Fox v Wood (1981) 148 CLR 438 allowance is $29,841.

Future Lost Earning Capacity

40 As I have already said, had it not been for the accident, I am satisfied that the plaintiff would have continued as a slaughterman until retirement. The plaintiff claims the loss of income from this employment into the future less 15% for vicissitudes. As is clear from the medical evidence, the plaintiff’s condition is a complex one. Absent any psychiatric illness and assuming that the plaintiff had the sight in his right eye, it is obvious that he would be able to work, though somewhat less obvious that he would be able to work as a slaughterman. Although it is true that the difficulties that the plaintiff has with respect to seeing with his right eye are caused by his psychiatric condition so that a substantial improvement in that condition seems likely to lead to an improvement in his vision, as I understand the evidence – especially the report of Dr Jolly – the link is not congruent. It seems to me that there is a substantial likelihood that, even if the plaintiff’s sight significantly recovers (and, hence, because this will probably occur only if there is an improvement in his psychiatric condition, this assumes an improvement in that condition) he will nevertheless probably be left with a significant psychiatric disability which will still substantially affect his capacity for work. In the nature of things, the plaintiff’s situation is incommensurable. Doing the best I can, I think that an appropriate allowance for vicissitudes under this head is 25%, yielding a sum of $375,147.

41 The same calculation applies to future lost superannuation entitlements which, at present is the sum per week (gross) of $1,150. This gives a sum of $46,792.

Past Domestic Care

42 The plaintiff claims 15.5 hours a week at an average hourly rate of $17.62 for the whole of the period, a total of 252 weeks, yielding $69,000. This is not disputed by the defendant. The plaintiff also claims, however, eight weeks of additional care, representing twenty-four hour care for four weeks each year, should the plaintiff go on holidays with an additional four weeks of twenty-four hour care to cover illness. However, this recommendation, which is contained in the occupational therapy report of Ms Susan Mullen, is a recommendation for the future. It does not reflect the past. Mr Gross QC submitted that, although this was so, it was a reasonable reflection of the plaintiff’s past history, where there had been from time to time a great severity of disruption of his life and the period assessed by the occupational therapist relating to the future can reasonably be applied to an assessment of increased care which has been needed in the past. A difficulty with his approach is that the plaintiff has not actually taken holidays, so that the therapist’s assessment of the need for increased care, if applied to the past, can only apply to four weeks of the total of eight weeks claimed. It was argued by Mr Gross that the additional four weeks, if not given for holidays, is a fair allowance for the presence of the family member who, as a carer, is on call during periods of increased stress, even though a full time independent carer could not be justified. Mr McIntyre SC for the defendant submits that there is simply no evidence that justifies this claim in any way that permits such a quantification although he concedes that it may be some small amount should be given to reflect hospital and after hospital care, which the occupational therapist has, for obvious reasons, not taken into account. A careful perusal of the medical reports does seem to me to justify a submission that there have been times of significant incapacitation probably requiring full time care for days and, I think, on occasion perhaps a week or so at a time. An allowance of four weeks seems to me to be reasonable in respect of this period in the past, accepting, as I do, that the occupational therapist proposes that such an allowance should be made for the future. Accordingly, I allow under this head the sum of $8,500. The total for past domestic care is therefore $77,500 from which should be deducted (as is conceded by the plaintiff) the sum received as a carer’s pension paid to the plaintiff’s son, of $18,750, leaving a balance of $58,750.

Future Care

43 The expert evidence as to the care needs of the plaintiff are not controversial. The difficulty with this head of damage is the discount, if any, which should be applied against the likelihood that the plaintiff will recover a functional level of sight, that is to say, the use of his right eye which would permit him to function without assistance. Allowance, of course, must still be made against the need of a carer (say, to accompanying him shopping) where his psychiatric condition renders such care appropriate. A significant degree of personal tasks can be undertaken if the plaintiff’s current vision is maintained, namely the ability to count fingers at a metre. Ms Mullen’s report contains a comprehensive description of the activities which the plaintiff said that he required, and which were not significantly in controversy. The plaintiff’s claim, relying upon Ms Mullen’s evidence and costing by Dial-an-Angel is as follows –

“Based upon report of Susan Mullen dated 9 December 2002 and the costing by Dial-an-Angel in report dated 2 April 2003

101.00

$612.00 per week x 5% multiplier 845 $517.000.00

In all the circumstances, for the reasons that I have given, I consider that the sum of $517,000 should be reduced by 30% to reflect my view of likelihood that the plaintiff will recover functional sight and continue improvement in his psychiatric condition generally. Accordingly, I allow the sum of $361,900 in respect of this head of damages.

Home Modifications

44 In this respect the plaintiff claims $46,140 being the cost of modifying a standard home according to the recommendations of the Royal Blind Society. The defendant makes three important submissions in respect of this sum. The first is that the plaintiff is at present in public housing accommodation, so that if he decides to purchase a house, that may either be an existing dwelling or one that he decides to construct. In the latter case, some of the modifications proposed by the Society could readily be incorporated into the design at, it would seem, comparatively little extra expense. The second question is whether the plaintiff is likely to move into other accommodation, having regard that he indicated in his evidence that he would like to return to Egypt in due course to live. The cost of modification of any home that he acquired there is unknown. Thirdly, the sum claimed is the present cost and should be discounted because it is not to be immediately used, there being no evidence from the plaintiff that he presently wishes to purchase a house and move from his present accommodation. Furthermore, if the plaintiff’s vision improves, a number of the modifications proposed by the Blind Society are unnecessary although, of course, if the plaintiff moves soon and before his vision improves (if it does) the modifications will be necessary even if, some years into the future, his vision is restored. I think that the defendant has established that some discount in the amount proposed by the expert is appropriate and I also need to take into account the evidence of the plaintiff that he does have some vision at the present time. I note, also, that the assessment includes an amount for garden care, which makes the assumption that the plaintiff will acquire accommodation that includes a garden. Overall, I think the appropriate way of assessing this item is to determine the likelihood that the expenditure will be necessary. Having regard to the fact that the sums quoted are in present day values, I do not think there should be a discount because of the likelihood that the expenditure will be incurred, if at all, in the future since I think that rising prices will have a countervailing effect. The plaintiff, at present, is so dependent upon his sons for both practical help and emotional support that I think it most unlikely that he will return to Egypt for some considerable time, if ever, although (as I have mentioned) he did express the desire to go. I do not think he will leave Australia whilst his vision remains significantly impaired. All in all, I do not think that there is a sufficient likelihood of the plaintiff going to Egypt to take this element into account. Although the specification of a percentage chance gives a misleading suggestion of precision, I consider that there is a 70% chance that the plaintiff will need to expend the proposed sum and, accordingly, I allow the amount of $32,298 under this head.

Future Treatment Costs

45 The plaintiff claims the sum of $8,756 in respect of orientation training, rehabilitation and special counselling as recommended by the Royal Blind Society. There is no dispute about this sum which, accordingly, is awarded. The plaintiff also claims the sum of $160,550 for medical reviews and counselling. The charges forming the basis for the calculation are not disputed but the defendant submits that the level of review and counselling is set too high, having regard to the likelihood of improvement. It seems already the case that the plaintiff’s condition has improved somewhat with the change in his medication, so that psychiatric consultations with Dr McPherson or another psychiatrist will likely be less frequent than is assumed by the claim. Nor is the need for frequent regular counselling likely to continue indefinitely. I do not think it appropriate to award damages in the circumstances here upon a “worse case scenario” which, in effect, is that which is claimed. However, it is not fair to assume that the plaintiff’s condition is static and that the only direction of change will be improvement. As I have mentioned, when his sons leave home – as I think they inevitably will – this will probably create significant problems for the plaintiff. Doing the best I can, I think that the plaintiff should have 60% of the sum claimed, namely $96,330. There is no real controversy about the medication expenses and, accordingly, I allow the sum claimed of $45,630. Also, an allowance of $3,500 for future surgery is not disputed and should be awarded.

Past Treatment Expenses

46 This is not controversial. I allow the sum of $87,134.

Interest

47 In the absence of agreement by the parties, I give liberty to apply.

Conclusion

48 Accordingly, I give judgment for the plaintiff in the sum of $1,551,793 plus interest to be determined. I will hear submissions on costs.

**********

Last Modified: 05/27/2004

Actions

Download as PDF Download as Word Document

Citations

Hassan v Southern Meats Pty Ltd [2004] NSWSC 72

Most Recent Citation

Nikolovski v Swaidan [2018] NSWDC 494

Cases Citing This Decision

1

Nikolovski v Swaidan [2018] NSWDC 494

Cases Cited

2

Statutory Material Cited

1

Graham v Baker [1961] HCA 48

Fox v Wood [1981] HCA 41

CITATION:	HASSAN v SOUTHERN MEATS PTY LTD [2004] NSWSC 72 revised - 27/05/2004
HEARING DATE(S):	3, 4, 5 December 2003
JUDGMENT DATE:	20 February 2004
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
DECISION:	Judgment for the plaintiff in the sum of $1,551,793 plus interest to be determined. Defendant to pay the plaintiff's costs.
CATCHWORDS:	Industrial accident - worker tripped over hose - liability of employer - blindness in left eye - psychogenic blindness in right eye - causation - uncertain prognosis - calculation of damages
LEGISLATION CITED:	Workers Compensation Act 1987 s151G
CASES CITED:	Fox v Wood (1981) 148 CLR 438
PARTIES :	Abraham Emam (formerly known as Ibrahim Hassan) (Plaintiff) Southern Meats Pty Limited (Defendant)
FILE NUMBER(S):	SC 20167/03
COUNSEL:	B J Gross QC with T J Boyd (Plaintiff) J A McIntyre SC with P M Morris (Defendant)
SOLICITORS:	Cameron Gillingham Boyd (Plaintiff) Moray & Agnew (Defendant)