Langdon v Carnival PLC

[2024] NSWCA 168

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Langdon v Carnival PLC [2024] NSWCA 168

Hearing dates:

27 May 2024

Date of orders:

16 July 2024

Decision date:

16 July 2024

Before:

Ward P at [1]; Kirk JA at [199]; Basten AJA at [200]

Decision:

1.   Appeal be dismissed with costs.

2.   Grant leave to the cross-applicant to cross-appeal.

3.   Allow the cross-appeal and vary order 1 made by the primary judge on 1 February 2024 as follows:

(a)   Order that the plaintiff pay the defendant’s costs of the proceedings to be assessed on the ordinary basis up to and including 19 April 2022 and thereafter on an indemnity basis.

4.   Order the cross-respondent to pay the cross-appellant’s costs of the cross-appeal.

Catchwords:

NEGLIGENCE – Personal injury – Causation – Physical and psychological injuries – Multiple possible causes of injury – Appellate intervention in the provisional assessment of damages

COSTS – Indemnity costs – Offers of compromise Rule 42.15A of the Uniform Civil Procedure Rules 2005 (NSW) – Discretion to “order otherwise”

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5D(1), 13(2)

Civil Procedure Act 2005 (NSW), s 98

Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.15A

Cases Cited:

Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443

Barakat v Bazdarova (No 2) [2012] NSWCA 140

Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370

Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49

Broadspectrum (Australia) Pty Ltd v Farmer [2024] NSWCA 81

Chen by her tutor Hung v Kmart Australia Ltd [2023] NSWCA 96

Dell v Dalton (1991) 23 NSWLR 528

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160

Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298

Hillier v Sheather (1995) 36 NSWLR 414

Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358

House v The King (1936) 55 CLR 499; [1936] HCA 40

Housman v Camuglia (2021) 104 NSWLR 615; [2021] NSWCA 106

Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; [2011] HCA 16

Jaycar v Lombardo [2011] NSWCA 284

John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36

Langdon v Carnival PLC t/as PO Cruises Australia (No 2) [2024] NSWSC 38

Langdon v Carnival PLC t/as PO Cruises Australia [2023] NSWSC 1406

Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Loxton v New South Wales [2002] NSWCA 194

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Miwa Pty Ltd v Siantian Properties Pte Ltd (No 2) [2011] NSWCA 344

Morgan v Johnson (1998) 44 NSWLR 578

New South Wales Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100

Perisher Blue Pty Ltd v Nair-Smith (No 2) [2015] NSWCA 268

Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99

Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) [2004] FCA 1437; 212 ALR 281

Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10

Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22

Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

South Eastern Sydney Area Health Service v King [2006] NSWCA 2

The Commonwealth v Yarmirr (2001) 208 CLR 1; [2001] HCA 56

The Uniting Church in Australia Property Trust (NSW) t/as Northaven Retirement Village v Takacs (No 2) [2008] NSWCA 172

Union Shipping New Zealand Limited v Morgan (2002) 54 NSWLR 690; [2002] NSWCA 124

Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505

Warren v Coombes (1979) 142 CLR 531

Watiwat v Dixon [2018] NSWCA 48

Williams v Milotin (1957) 97 CLR 465, 474; [1957] HCA 83

Wilson v Peisely (1975) 50 ALJR 207

Texts Cited:

M Davies, AS Bell, PLG Brereton, M Douglas, Nygh’s Conflict of Laws in Australia, (10th ed, Lexis Nexis Butterworths, 2020)

Category:

Principal judgment

Parties:

Peter Langdon (Appellant/Cross-Respondent)
Carnival PLC t/as P&O Cruises Australia (Respondent/Cross-Appellant)

Representation:

Counsel:
RS McIlwaine SC with Ms ND Compton (Appellant/Cross-Respondent)
CP O’Neill with MD Algie (Respondent/Cross-Appellant)

Solicitors:
Shine Lawyers (Appellant/Cross-Respondent)
Gilchrist Connell (Respondent/Cross-Appellant)

File Number(s):

2023/00457739

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2023] NSWSC 1406

Date of Decision:

20 November 2023

Before:

Associate Justice Harrison

File Number(s):

2020/00327473

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, Mr Peter Langdon, brought a personal injury claim for damages following an incident that occurred on 19 November 2017 aboard a cruise ship operated by the respondent, Carnival PLC (Carnival). Mr Langdon claimed to have suffered injury to his neck and left shoulder, as well as a psychological injury through aggravation of a pre-existing, but until then asymptomatic, degenerative change of the cervical spine and left shoulder, when he dropped approximately 30cm onto the tiled floor of a pool following the collapse of a wooden step. Carnival admitted breach of a duty of care in relation to the incident, but disputed that the injuries the subject of the claim were caused by incident, and hence denied liability.

The primary judge found that causation was not established. Mr Langdon was found to be an unreliable witness whose evidence was prone to embellishment. Rather, the preponderance of the evidence was that, at best, Mr Langdon more likely suffered a muscular strain as a result of the incident. It was possible that Mr Langdon suffered the complained-of injuries by reason of a separate incident which occurred some months later during which he passed out and then, on regaining consciousness, fell inside a toilet cubicle, and smashed a porcelain toilet bowl. In regard to Mr Langdon’s claimed psychological injuries, the primary judge found that the incident on the ship did not cause any such injuries to Mr Langdon, and that any psychiatric or psychological conditions suffered by him were more likely as a result of unrelated issues.

Mr Langdon appealed on four grounds, broadly relating to the primary judge’s findings as to the cause of his injuries, the weight afforded to evidence called by him, and the assessment of damages. Carnival cross-appealed with respect to the primary judge’s refusal to award indemnity costs.

The Court held (Ward P, Kirk JA and Basten AJA agreeing), dismissing the appeal, granting leave for the cross-appeal, and allowing the cross-appeal:

1. The incident on the cruise ship did not, on the balance of probabilities, trigger the aggravation of Mr Langdon’s pre-existing, but until then asymptomatic, degenerative changes to his cervical spine or shoulder, rather than simply causing him some muscle strain. The CCTV footage makes clear that Mr Langdon simply dropped downwards onto his feet; not that he fell onto his left shoulder or neck (as he told various medical experts). While the medical experts were in agreement that the incident aboard the cruise may have caused such injuries, common sense would suggest that the later incident, which was of sufficient force to smash a porcelain toilet, would be more likely to cause the relevant injuries: [122]-[126] (Ward P); [199] (Kirk JA); [200] (Basten AJA).

2. It is not probable that Mr Langdon suffered a psychological or psychiatric injury as a result of the incident aboard the cruise ship. There was a clear conflict in the opinions of the psychiatrists in this regard, and there were accepted to have been a number of other stressors affecting Mr Langdon at the time and the experts expressed doubt as to his general veracity: [138]-[139] (Ward P); [199] (Kirk JA); [200] (Basten AJA).

3. An appellate court is required to conduct a real review of the evidence at first instance, and must make its own findings of fact. In that respect, the observations of the lay witnesses as to Mr Langdon’s physical abilities and state of mind after the cruise incident can only have probative force if those observations are directed to the period following the cruise incident, but before the incident in the toilet cubicle. Failing this, all those observations can confirm is that Mr Langdon complained of pain without being able to point to which incident was the relevant cause. Further, to the extent this evidence is based on what Mr Langdon himself had told these witnesses, its reliability is infected by Mr Langdon’s own unreliability: [91]-[99] (Ward P); [199] (Kirk JA); [200] (Basten AJA).

   Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22

4. Appellate intervention in relation to the provisional assessment of damages should be a most unusual event, and only occur where the disproportion between the injury and award is so significant as to render the award unreasonable. In this case, the primary judge’s provisional assessment of Mr Langdon’s injuries was not outside the reasonable range of assessment: [163]-[167] (Ward P); [199] (Kirk JA). A contingent assessment operates on a counter-factual basis: it is not possible to identify the necessary counter-factual where the credibility of the plaintiff is in issue: [210]-[214] (Basten AJA).

   Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49; Chen by her tutor Hung v Kmart Australia Ltd [2023] NSWCA 96; Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; Wilson v Peisely (1975) 50 ALJR 207.

5. Rule 42.15A of the Uniform Civil Procedure Rules 2005 (NSW) confers a conditional entitlement to indemnity costs subject to the discretion to order otherwise. That presumptive entitlement is only departed from where the circumstances are demonstrated to be out of the ordinary. The primary judge erred in principle in applying a test as to whether it was unreasonable for Mr Langdon not to accept the offer of compromise made to him without taking into account whether the circumstances of the case warranted departures from the presumptive position. Indemnity costs should have been ordered having regard to the non-acceptance of the second offer of compromise: [187]-[197] (Ward P), [199] (Kirk JA); [222]-[232] (Basten AJA).

   Barakat v Bazdarova (No 2) [2012] NSWCA 140; Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298; Hillier v Sheather (1995) 36 NSWLR 414; Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391; Miwa Pty Ltd v Siantian Properties Pte Ltd (No 2) [2011] NSWCA 344; Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358; Morgan v Johnson (1998) 44 NSWLR 578; New South Wales Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100; Perisher Blue Pty Ltd v Nair-Smith (No 2) [2015] NSWCA 268; Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) [2004] FCA 1437; 212 ALR 281; South Eastern Sydney Area Health Service v King [2006] NSWCA 2; The Uniting Church in Australia Property Trust (NSW) t/as Northaven Retirement Village v Takacs (No 2) [2008] NSWCA 172; Watiwat v Dixon [2018] NSWCA 48.

6. Observations by Basten AJA as to the failure of the parties to consider what law applied with respect to an injury which occurred on board a ship probably not in Australian waters: [202]-[209].

JUDGMENT

1. WARD P: The appellant, Mr Peter Langdon, has appealed from the dismissal by Harrison AsJ of his personal injury claim for damages following an incident that occurred when timber decking on the pool deck of a cruise ship operated by the respondent, Carnival Pty Ltd (Carnival), collapsed (see Langdon v Carnival PLC t/as PO Cruises Australia [2023] NSWSC 1406, the primary judgment). In what follows, paragraph references are to the primary judgment unless otherwise noted.

2. Mr Langdon was walking from the spa area to the pool. When he stepped on the step into the pool, the timber decking collapsed and Mr Langdon dropped vertically onto the tiled floor approximately 30cm below the step. Mr Langdon landed on his feet. Mr Langdon did not, as suggested in some of the records of histories apparently taken from him or referred to in the medical reports, strike his head or fall onto his left shoulder or hit his neck. Nor, by reference to the CCTV footage of the incident, does Mr Langdon appear to have had great difficulty hobbling to a lounge chair to sit down, as his lawyers instructed at least one of the doctors who examined him. Rather, as her Honour found (see [45]), he took four to six “small hobbling type steps” to observe the broken step; bent over and picked up the wooden plank; briefly performed a small jig or dance type movement; and did not need assistance to get out of the pool. This Court, as did the primary judge, had the benefit of viewing CCTV footage of the incident during the hearing.

3. Mr Langdon claimed to have suffered injury to his neck and left shoulder, as well as a psychological injury through aggravation of pre-existing, but until then asymptomatic, degenerative changes of the cervical spine and left shoulder.

4. Carnival admitted breach of a duty of care in relation to the incident but disputed that the injuries the subject of the damages claim were caused by the incident and hence denied liability.

5. The primary judge found that causation was not established. Her Honour found that the preponderance of the evidence was that Mr Langdon more likely suffered a muscular strain (at [212]), noting that “at best” Dr Blombery (the vascular and pain physician called by the appellant) said that the jarring fall possibly aggravated pre-existing degenerative changes to his cervical spine. Her Honour did not accept that Mr Langdon suffered any psychiatric or psychological injuries caused by the cruise incident (at [251]). Mr Langdon’s claim was dismissed with costs. Her Honour provisionally assessed Mr Langdon’s damages claim, including an assessment of his non-economic loss at 25% (at [251]).

6. In a subsequent judgment (Langdon v Carnival PLC t/as PO Cruises Australia (No 2) [2024] NSWSC 38, the costs judgment), her Honour rejected an application by Carnival for an indemnity costs order (that application being premised on the making of offers of compromise which Mr Langdon did not accept).

7. Mr Langdon, by notice of appeal filed on 14 February 2024, appeals from the primary judge’s findings as to causation (Grounds 1, 2 & 3) and quantum (Ground 4), seeking, among other things, an order for judgment in his favour with damages to be reassessed by this Court.

8. Carnival filed a notice of contention on 22 March 2024, contending that the primary judge’s decision should be affirmed on the basis that, in the event that its admitted breach of duty was a necessary condition in the occurrence of any of Mr Langdon’s injuries (either physical or psychiatric), it was not causative of any loss or damage.

9. Carnival also filed a notice of cross-appeal on 22 March 2024, seeking to appeal from the primary judge’s costs order, contending that her Honour erred in the exercise of her discretion in failing to award indemnity costs in its favour (either from 25 June 2021 or in the alternative from 20 April 2022 (see costs judgment at [111])). As adverted to above, Carnival’s application for an indemnity costs order was based on the non-acceptance by Mr Langdon of two offers of compromise served during the primary proceedings. Her Honour found that, without service of Carnival’s medical causation evidence, it was not unreasonable for Mr Langdon not to accept either offer.

10. For the reasons set out below, I am of the opinion that the appeal should be dismissed with costs and that the summons seeking leave to cross-appeal allowed with costs.

Chronology of events

11. Mr Langdon was in his late 50’s at the time of the incident on 19 November 2017. The primary judge put his age at 57 whereas on my calculations it would have been 56; but nothing turns on this. Prior to the cruise, Mr Langdon was working as a sub-contractor with Sunnybank Horticulture (a landscaping business), carrying out excavation work, rubbish removal and landscape renovations. Mr Langdon was living at the time with his then long-term partner, Ms Michelle Burgess, on a semi-rural property south-east of Melbourne. The couple have now separated although at the time of the hearing Ms Burgess was still providing occasional assistance to Mr Langdon (see AT 50.45).

12. Also relevant to note at this stage (since this was accepted by Mr Langdon to have been a source of stress unconnected to the incident his injury) is that there was significant flood damage to Mr Langdon’s home prior to the cruise, which led to mould problems and required Mr Langdon and his family to vacate the house ([228]; AT 19.45). Mr Langdon in his second statement deposed (at [110]) that in June 2017 his house flooded; that repairs to the house were initially delayed and not completed properly leading to mould setting in and the home becoming unliveable. Towards the end of 2019 he moved into a granny flat on the property. Dr Samuell recorded this history in his report, noting that Mr Langdon had an insurance claim that was settled in June 2017, although there was still a dispute as to the rectification works that caused him anxiety or stress ([252]). At the time of the hearing before the primary judge, Mr Langdon was still living in the granny flat on the property ([325]).

13. On this appeal, significant emphasis is placed by Mr Langdon on the evidence that, prior to the incident on the cruise, he was physically fit and working full time, without any restrictions (referring to the evidence of his work colleague, Mark Howes, and of Mark Owens, the proprietor of Sunnybank); the evidence from Ms Burgess that everything was great in their relationship until Mr Langdon returned from the cruise; and the evidence of Mr Langdon’s three adult daughters as to his previously active and sociable nature. In essence, the argument by Mr Langdon is that there is nothing between the cruise incident and the onset of his neck pain (which led to a subsequent diagnosis of pre-existing degenerative changes to his cervical spine) to explain that pain – and hence the cruise incident was the cause of aggravation of his previously asymptomatic condition.

14. The difficulty with this contention is that an equally possible explanation for the neck pain after the cruise incident is that Mr Langdon was simply suffering muscular strain; and there was a subsequent incident (the toilet cubicle incident) on 29 December 2017 that could also have triggered the pain associated with the degenerative changes to Mr Langdon’s cervical spine, as will be explained in due course ([212]).

Cruise incident

15. The cruise incident occurred at about 3.30pm on 19 November 2017.

16. Mr Langdon’s evidence (as recorded by the primary judge at [42]-[43]) was that that when the step collapsed he landed heavily on the balls of both feet; that the sudden drop was unexpected; and that he immediately felt a pain up the left side of his neck. In his evidentiary statement, Mr Langdon described being in shock by what had happened. Mr Langdon said that his ankle was immediately sore. (There was no claim made in relation to the ankle.) Mr Langdon said that about 45 minutes after the step broke he started experiencing shooting pains up his left and right shoulder regions through to his neck and upper back; and he started to get worried.

17. It is clear from the CCTV footage that Mr Langdon fell vertically onto the tiled floor of the pool and that he was able to walk to the lounge chairs on the pool deck and sit down (after having picked up a plank of the collapsed timber decking) without any assistance and without apparent difficulty.

18. A “youth security” crew member who witnessed the incident (Ms Amy Graham) recorded in her statement signed that day that Mr Langdon “initially declined medical attention saying he was alright”. Ms Graham recorded that Mr Langdon later approached her at approximately 4.20pm “saying that he was going to pop into medical just in case as his shoulder was now hurting”.

15. At 4.42 pm, Mr Langdon attended the ship’s medical centre. The triage nurse recorded that Mr Langdon “attends clinic for injury to neck and left ankle”; that “step broke leading into swimming pool — injury to left ankle and neck - ? whiplash type neck injury”. The medical centre clinical records note, under “Medical History” “Wrist surgery - 30 years ago” and under “Psychiatric History” “no past Psychiatric History documented”. The triage notes also included:

HPI

ACCIDENT ALONG POOL

As reported, at 15h30 whilst stepping over raised wooden area around pool, wooden plank gave away and patient went straight (approximately 50cm) down straight onto both his feet. Patient denies falling forward. Denies preceding symptoms. No direct head or neck trauma reported. No fall from excess height. No loss of consciousness reported. Shortly after accident, guest noticed mild pain in his left foot. 40 minutes post-accident experienced mild discomfort in bilateral trapezius muscle area.

Patient did not take any oral analgesia. No previous neck or ankle / foot injuries reported.

20. A physical examination by Dr Rainer Guenzel was conducted at 5.14pm and, relevantly, the doctor noted “Tenderness over bilateral trapezius muscles – less proximal/more distal area. Pain on rotation of neck in bilateral trapezium areas”. Dr Guenzel prescribed Paracetamol 500 mg, two pills every six hours for one week. Mr Langdon emphasises that this is a contemporaneous report of complaint as to pain in his shoulders and neck (AT 3.50-4.1).

21. Mr Langdon continued on with the cruise, engaging in activities such as snorkelling, although (as noted in due course) his daughter Emily reported that he did not swim in the water for more than half an hour (whereas ordinarily he would have been in the water all day). Emily gave evidence that he complained to her of pain (AT 3.14-16).

22. After the cruise, Mr Langdon attended one day of a cricket test match in Brisbane before flying home to Victoria ([60]).

Reported pain after his return from the cruise

23. Ms Burgess’ evidence was that when Mr Langdon returned home from the cruise (which he did on 1 December 2017) he complained to her that he had hurt his neck and left shoulder in the incident on the cruise.

24. Mr Langdon had a consultation with a general practitioner, Dr Paul Jenkins, at the Cheltenham Medical Centre on 4 December 2017. Dr Jenkins’ notes of the surgery consultation include “whilst on [cruise] – stepping down on step – it collapsed under him. Stayed upright. Pain in back”. The reason for visit was recorded as “neck pain with radiculopathy”. Dr Jenkins’ notes of the examination record: “neck movement” stiff, sore, tender – lumbar/thoracic spine – disc movement; tender cervical spine & upper thoracic. Dr Jenkins requested an MRI scan of the cervical and thoracic spine (which was conducted on 29 December 2017 – see below) and prescribed Mobic (a pain killer) 15 mg daily.

Dizziness on 9 December 2017

25. On 9 December 2017, Mr Langdon experienced dizziness while at a shopping centre. Mr Langdon was admitted to the Emergency Unit at Frankston Hospital at 6.36pm that day. The hospital records record the “Triage Presenting Information” as:

Pt fell 3/52 ago while in a cruise, pt slided down to the pool with headstrike. since the incident pt is falling to sleep easily and feels dizzy a lot. pt also has neck pain and shoulder.

26. It is accepted by Mr Langdon that the recorded history of a “headstrike” is inaccurate (AT 4.49). It is also relevant here to note that there is no medical evidence as to any connection between dizziness or syncope episodes and the incident on the cruise (those episodes being unexplained on the evidence – see AT 35.40).

27. The principal diagnosis on 9 December 2017 was “injury to muscle/tendon of neck”. No medication was prescribed (see final discharge summary).

Toilet cubicle incident

28. On 21 December 2017, Mr Langdon went to a local club for a Christmas lunch. He drank beer at the lunch. In cross-examination, Mr Langdon said that he drank three pints of beer, which he said was roughly the equivalent of eight standard drinks of beer (AT 40.23). Mr Langdon’s blood alcohol level was recorded when he was subsequently admitted to hospital (some time after the incident) as 0.133.

29. At some stage Mr Langdon went to the bathroom. When he did not return, he was located about 45 minutes later, in a toilet cubicle (fully dressed and seated on the toilet with his head slumped forward). The porcelain bowl of the toilet was smashed. Mr Langdon had no recollection of what happened when he passed out in the cubicle ([132]). A photograph was taken of Mr Langdon seated fully clothed on the toilet seat with his head slumped forward (AT 6.50).

30. As adverted to above, Mr Langdon gave evidence that he did not have a memory of what occurred before he passed out. His evidence was that he remembered there were two or three people (outside the cubicle) when he woke up; he made three attempts to unlatch the cubicle door, falling backwards onto the toilet; and, when he opened the door catch, the door came back and he fell flat backwards onto the toilet; and that when he landed on the toilet the cistern broke (see as recounted at [73]) and he smashed the toilet bowl as he landed on it ([78]) (see T 61.14-20). Her Honour did not accept his version of events because of his inebriated state and lack of consciousness “and therefore his lack of actual memory” ([81]).

31. Mr Langdon was admitted to Frankston Hospital at 7.42pm on 21 December 2017. He was assessed at the Frankston Hospital Emergency Department on 21 December 2017 at 8.15pm. The progress note includes:

…

Today @ ~ 1915 friends dropped pt off at home post collapse

Pt went to bathroom and approximately 45/60 later friends found pt on toilet floor unconscious, toilet porcelain smashe? friends however never reported this to daughter.

Pt immediately upset, crying walking to front of pub and then dropped home by friends. Stumbling into car with daughter.

8 drinks total between 1000 and 1730 (4 x stubbies and 4 x pots beer)

1/12 pt fell on cruise ship, step gave way and pt fell hitting neck. Treated with Panadol however nil imaging attended, Snorkelled whilst on cruise.

Since cruise incident pt has had reoccurring headaches and unconscious episodes, increasing lethargy/drowsiness, nil nausea, nil vomiting. Hard to rouse when asleep, Falling asleep during the day.

Currently daughter reports pt is not himself, rambling, not making sense, delayed responses, repeating self irrelevant information, unable to express self poor coordination and forgetful of immediate information.

32. Pausing here, as already noted there is no evidence that Mr Langdon hit his neck during the cruise incident (cf the above notes).

33. The hospital records note that, on admission, Mr Langdon had a Glasgow Coma Score of 15 and was oriented to time, place and person.

34. Another hospital report, signed 9.34pm, records that “Pts Daughter reported a mechanical fall 1/52 after where pt fell back and hit his head/neck. Since then pt experienced multiple unconscious episodes and recurring headaches”. Again, this is an inaccurate history in that the CCTV footage does not show that Mr Langdon hit his head or neck during the cruise incident. While this history is attributed to Mr Langdon’s daughter, it raises a question as to the reliability of the report given to her by Mr Langdon of the incident. That said, another explanation may be that it is simply inaccuracy in the record taking at the hospital.

35. The radiology report dated 21 December 2017 referred to a minimally displaced fracture at the medial orbital wall on the right “which does not appear acute”.

36. Carnival’s submission at trial, as noted by the primary judge, was that the incident in the toilet (the toilet cubicle incident) was the cause of Mr Langdon’s cervical and left shoulder injury ([163]). Mr Langdon submits that this is not made out nor supported by the evidence. In particular, Mr Langdon submits that the evidence does not support the conclusion reached by Dr Brett Courtenay (the orthopaedic surgeon called to give evidence by Carnival) that during the incident in the toilet Mr Langdon struck his head on the toilet bowl, sustained a head injury, and that this is the most likely explanation for the cervical injury.

37. Mr Langdon argues that the suggestion that he hit his head on the cubicle wall or toilet bowl is no more than speculation (Mr Langdon referring in this regard also to the evidence of Mark Owen, who was with Mr Langdon at the Christmas lunch).

38. Ironically, the suggestion of a head injury on the occasion of the toilet cubicle incident appears to have emanated from Mr Langdon’s own evidence (see his first statement referred to below) and references in the medical reports to a fracture of the eye socket which was not acute (see, in particular, the final discharge report following the cubicle incident which refers to a “chronic right minimally displaced fracture at the medial orbital wall” and the radiology report referred to above).

39. In Mr Langdon’s first statement (19 February 2021) he referred to the incident on 21 December 2017, saying (at [33]) that the impact smashed the toilet and (at [36]) that the doctors noted that “because I blacked out in the toilet that I must have hit my face against the wall of the toilet and fractured my eye socket”. However, in his subsequent 23 February 2022 statement, Mr Langdon stated (at [32]) that his head did not hit the toilet or the wall.

40. Mr Langdon here emphasises that the Frankston Hospital clinical records do not refer to any facial bruising, abrasions or swelling; nor a black eye; and he says that there is no evidence of any head injury. Mr Langdon says that the reference (in the final discharge summary) to a “chronic right minimally displaced fracture at the medial orbital wall” (relied upon by Carnival as evidence of a head strike in the toilet cubicle) was not acute and he argues that, as the primary judge recognised, this was not evidence of recent onset or that it occurred during the cubicle incident (AT 6.15-27; and see primary judgment at [138]).

MRI results

41. The MRI requested by Dr Jenkins was conducted on 29 December 2017 (AT 4.39). The scan revealed degenerative disc disease from C3/4 (mild), C4/5 (mild), C5/6 (mild to moderate), C6/7 (moderate to marked), C7/T1 (mild). Dr Clare (who initially reviewed the MRI results) concluded that there was mild to moderate degenerative disc disease.

42. Mr Langdon’s evidence was that the only history of any previous complaint of pain in his neck was in, and confined to, February 2010 when he was under stress. It does not appear to be disputed that, as at the time of the incident on the cruise, the degenerative changes noted on the MRI were asymptomatic.

Subsequent referrals

43. In May 2018, Dr Jenkins referred Mr Langdon to an orthopaedic surgeon and upper limb specialist, Mr Richard Large. (Pausing here, the primary judge and Mr Langdon in his submissions both refer to the specialist as Dr Large, whereas in his own correspondence and website the specialist refers to himself as Mr Large. Hence, I will adopt his own appellation in these reasons.) In Dr Jenkins’ letter of 17 May 2018, referring Mr Langdon to Mr Large, Dr Jenkins wrote:

[Mr Langdon] presents with neck and left shoulder pain. He initially fell when a step gave way under him (whilst on a cruise) late last year. He fell in stiff upright position. He thinks he may have fallen to his left after first impact. Now he has left shoulder pain and restricted movement – 60 degrees of pain free abduction. Recent US [ultrasound] suggests adhesive capsulitis.

44. Mr Large’s subsequent reports of 14 June 2018 and 28 September 2018 curiously referred to the right (not left) shoulder. On 29 November 2018, Mr Large suggested a possible diagnosis of “subscapularis tendon tear”.

45. On 22 August 2019, Dr Jenkins issued a medical report to the lawyers acting for Mr Langdon in which he recorded that Mr Langdon:

… fell vertically the height of one step. He landed awkwardly and then fell to his left onto his left shoulder. He stated that he had neck and spine pain as well as left shoulder pain.

46. Again, this is an inaccurate record of what occurred at the time of the cruise incident (as revealed by the CCTV footage) insofar as it records a fall onto the left shoulder.

47. On 13 September 2019, Mr Langdon’s lawyers issued instructions to Mr Large, enclosing a copy of a 22 August 2019 report from Dr Jenkins (which I infer must be the report referred to above).

48. On 28 September 2019, Mr Large diagnosed a rotator cuff tear of the subscapularis and a frozen shoulder on the right side. Mr Large opined that it was likely that the shoulder injury occurred during Mr Langdon’s “participation” on a cruise ship. As to the black out, Mr Large opined that it “may be” that if the cause occurred due to the step collapsing then liability “probably” rests with the owner of the ship but if Mr Langdon had an idiopathic blackout then Mr Large did not know if the step had anything to do with it.

49. Mr Large placed Mr Langdon on a public hospital waiting list for treatment for a frozen shoulder and in due course Mr Large performed a left shoulder arthroscopy on Mr Langdon on 10 March 2021.

50. I note that Dr Jenkins also gave inaccurate instructions to another specialist, Mr Keith Gomes, by letter dated 6 March 2020 in which he stated that Mr Langdon’s ongoing symptoms of neck stiffness, pain “& pain his Left shoulder” started after a fall, when he “… landed awkwardly and fell to his left”.

51. There was no reference in Dr Jenkins’ medical report (to the solicitors, which was forwarded to Mr Large) or his instructions to Mr Gomes to the toilet cubicle incident.

Medical evidence

52. It is convenient at this point to summarise the expert medical evidence.

53. Mr Langdon obtained expert evidence from each of: Dr Peter Moran (an orthopaedic surgeon), Dr Peter Blombery (as noted above a vascular and pain physician), Professor Peter Teddy (a neurosurgeon) and Professor Lorraine Dennerstein AO (a psychiatrist). Professor Teddy was not called to give evidence at the trial but his report was relied upon.

54. Carnival obtained expert evidence from each of: Dr Brett Courtenay (an orthopaedic surgeon), Dr Seamus Dalton (a consultant physician in rehabilitation medicine), Dr Doron Samuell (a psychiatrist) and Mr Large (an orthopaedic and upper limb specialist). Mr Large’s reports were relied upon but, as with Professor Teddy, Mr Large was not called on to give evidence at the trial.

55. Evidence was given in conclave at the trial by: the two orthopaedic surgeons (Drs Moran and Courtenay); the two pain physicians (Drs Dalton and Blombery); and the two psychiatrists (Professor Dennerstein and Dr Samuell).

56. As to the evidence of the orthopaedic surgeons on 20 March 2023, the joint report records this as follows:

Dr Courtenay does not believe there was sufficient violence in the incident to cause the plaintiff to sustain the neck injury.

Dr Moran states that, on the basis of the plaintiff’s age with some mild to moderate degenerative changes at a number of levels, it could have represented the possibility of a jarring incident to lead to later neck symptoms.

Dr Moran’s assessment is aggravation of underlying degenerative change.

Dr Courtenay agrees that there was degenerative change, but he does not believe there was an aggravation of symptoms.

Both experts agree that the plaintiff initially was complaining of neck symptoms, in particular – referred pain to the top of the shoulder. The doctor on the ship said in the P&O records that the plaintiff had a full range of neck movement. Both experts agree that restricted neck movement may not develop until later.

The experts note that the plaintiff had a blackout incident and, some time following that, he relates the symptoms more to the left shoulder.

Both experts agree on the timing of the symptoms and that there is a delay of at least a month before his intrinsic shoulder symptoms develop.

Both experts agree that there was a history of syncope, which may have provoked or aggravated the situation. [404]

…

Both experts agree that it was a relatively minor injury to the left upper arm and that there was no clear causal connection between that incident and the plaintiff developing shoulder symptoms some weeks later.

Both experts agree that there was no obvious causal connection with the plaintiff’s condition later.

Both experts note that the plaintiff’s shoulder had a developmental anomaly but they do not believe there was injury related to the incident.

Both experts agree that the plaintiff’s shoulder pathology as it was at the time of the injury is congenital / developmental and not traumatic. [405]

…

Both experts agree that the violence of the injury is not severe enough to result in long-term or permanent neck dysfunction.

Both experts agree that the plaintiff may have jarred his neck and later developed a frozen shoulder which is neck related.

Both experts do not think the plaintiff has developed rotator cuff pathology, particularly as the stress on the arm was going the wrong way; it was pushing his arm away from his side rather than him having a resisted injury.

Both experts agree that the plaintiff may have neck pain, a frozen shoulder, and a recurrent frozen shoulder after surgery because the first frozen shoulder means he is vulnerable and susceptible.

Both experts do not accept that the need for surgery in 2021 has anything to do with the incident onboard ship in 2017. [406]

…

Dr Courtenay states that there were some pre-existing degenerative changes in the plaintiff’s neck that were not causing him any symptoms, and he did have a developmental / congenital anomaly of his left shoulder. Dr Courtenay does not believe either of those were relevant to the current presentation.

Dr Moran is not prepared to say that there is no lingering of pathology from the incident, but he is prepared to say that there is no shoulder pathology lingering from that incident. Dr Moran states that it is not unreasonable to accept that there may be a degree of neck pathology aggravated b the incident that is still symptomatic. But, accepting pre-existing issues in the shoulder, Dr Moran would not expect the impact on the inside of the plaintiff’s arm to cause any significant degenerative change in the joint or in the soft tissues around the shoulder. [407]

57. Neither expert believed that the incidents of dizziness were related to the cruise incident.

58. As to the psychiatrists, Professor Dennerstein diagnosed an adjustment disorder with mixed anxiety and depressed mood, identifying the stressor as being the response to pain and frustration with his limitations and not being able to maintain his income, business, property or other planned business; whereas Dr Samuell (who had reviewed Mr Langdon on 27 October 2021) disagreed with that diagnosis and assessed Mr Langdon as having understandable common distress rather than a psychiatric disorder.

59. Professor Dennerstein assessed Mr Langdon first on 20 June 2018 and her report dated 22 June 2018 diagnosed Mr Langdon as suffering from an adjustment disorder with mixed anxiety and depressed mood. Professor Dennerstein was of the opinion that this psychiatric condition was materially contributed to by the injuries Mr Langdon sustained as a result of the incident on the cruise, namely pain across the neck, shoulders and upper back which had continued. However, Professor Dennerstein also noted that Mr Langdon’s anxiety and mood was affected by a house flood that had occurred in 2017.

60. Professor Dennerstein assessed Mr Langdon again on 9 December 2021 and in her report dated 10 December 2021 confirmed the diagnosis of an adjustment disorder with mixed anxiety and depressed mood and confirmed that this psychiatric condition was materially contributed to by the injuries and consequences resulting from the incident on the cruise.

57. In joint evidence, Professor Dennerstein qualified the above opinion, stating that the injuries sustained as a result of the accident had been a “not insignificant”, rather than material, contributing factor to Mr Langdon’s psychological status. Professor Dennerstein noted that his adjustment disorder had been contributed to by a number of factors including the substantial financial problems he had had and other stressors in the past. Professor Dennerstein’s opinion was that, whatever physical injuries were caused by the accident, Mr Langdon was left with a pain syndrome condition that has affected him. However, relevantly, that rather begs the question as to whether the pain syndrome condition to which Professor Dennerstein referred developed from the earlier (cruise) or later (toilet cubicle) incident or a combination of both.

58. Significantly, the two psychiatrists commenced their conclave evidence with a preamble in which they expressed concerns as the insufficiency of the information provided by Mr Langdon in his accounts to them:

Preamble

Following discussion of the case, Professor Dennerstein and Dr Samuell have express[ed] their concern about the following matters:

First, the plaintiff had not disclosed his previous psychiatric history and response to stressors in the past, but these were present in the contemporaneous medical documents.

Second, the plaintiff appeared to minimise a number of contemporaneous psychosocial stressors that may have been relevant and -impactful on his mental health.

Third, the actual circumstances of the fall. The doctors shared the video and view that what was seen on the CCTV was different to the plaintiff’s account to either expert.

Fourth, the experts note the length of time, which was 17 months for Dr Samuell and 15 months for Professor Dennerstein, since their last assessment, and that the plaintiff may have sought treatment since then and so his condition may be different from when the experts last saw him.

Fifth, the experts have not been provided with any contemporaneous medical evidence since the subject incident.

63. There was no suggestion that there had been any relevant treatment for the claimed psychological condition in the period after the experts had assessed Mr Langdon. The experts agreed that any accepted psychiatric condition had no impact on Mr Langdon’s work capacity at the time that the experts assessed him.

64. As to the pain physicians or rehabilitation experts, Dr Blombery and Dr Dalton, their evidence in conclave included the following.

65. As to whether Mr Langdon sustained injury to his cervical spine as a result of the cruise incident, Dr Blombery answered “yes” and Dr Dalton answered “no”, their evidence being:

Dr Blombery states that the nature of the plaintiff's injury was aggravation of pre-existing degenerative changes in the cervical spine. Dr Blombery states that may well have triggered a pain syndrome in the affected area.

Dr Blombery states that the plaintiff has continuing neck pain in regard to the cervical spine.

Dr Dalton does not consider it likely that the plaintiff sustained an injury to his cervical spine. Dr Dalton considered it more likely that he suffered a muscular strain of his neck and trapezius muscles based on the CCTV footage and the medical records that are available.

Dr Dalton accepts that a jarring incident such as this may have caused a minor aggravation of the underlying degenerative changes but, based on his clinical expertise in managing cervical and shoulder pain over the last 35 years, he considers that such an aggravation resolved and would not account for the plaintiff's subsequent complaints for which there are other far more probable reasons to account for the later onset of shoulder problems and the other complaints that are noted in the clinical records.

Dr Dalton does not consider that the plaintiff has any residual disabilities that arose as a result of the said injury for the reasons which he has clearly outlined in his report.

66. As to whether Mr Langdon sustained injury to his left shoulder as a result of the incident, Dr Blombery said that Mr Langdon sustained a minor injury that had resolved within three or four weeks; Dr Dalton considered that there was no evidence of such an injury as a result of the cruise incident, their evidence being:

Dr Blombery states that the plaintiff sustained a minor injury to the left shoulder causing pain which persisted for three or four weeks but then resolved.

Dr Blombery states that the nature of the left shoulder injury is unclear - primarily soft tissue injuries around the left shoulder.

Dr Blombery states that the plaintiff has no disabilities that have arisen as a result of said injury.

Dr Dalton considers that there is no evidence that the plaintiff sustained an injury to his left shoulder as a result of the incident. He has provided reasoning for the opinion in his report. The CCTV footage, which reveals the mechanism of injury, and the contemporaneous medical records do not support the claim that the plaintiff sustained an injury to his shoulder, which appears to be based on his recollection of symptoms at that time.

Dr Dalton also refers to the subsequent development of adhesive capsulitis and the plaintiff's pre-existing Sprengel’s deformity. Dr Dalton referred to his particular expertise in this area and opines that there is no indication or evidence to support the claim that the plaintiff sustained an injury to his shoulder as a result of the incident and he considers that there are no disabilities that have resulted from the alleged injury. [Emphasis added]

67. As to whether Mr Langdon continued to experience any injuries and/or disabilities as a result of the cruise incident, the evidence was:

It is Dr Blombery's opinion that the plaintiff continued to experience neck pain caused by aggravation of those pre-existing degenerative changes complicated by a pain syndrome in the affected area. This process occurs in patients who develop chronic pain in an area after an injury and is caused by central sensitization which is an organic disorder of pain nerve pathways.

Dr Blombery does not think there are any residual from the shoulder injury at the time, but the plaintiff does experience ongoing pain in the neck.

Dr Dalton's answer is No. Dr Dalton considers that the plaintiff sustained what can be best described as a soft tissue injury or strain of his neck and trapezius muscles as a result of the incident. On the balance of probabilities, Dr Dalton considers it unlikely that the plaintiff sustained an aggravation of the underlying degenerative condition affecting his cervical spine. If he did suffer an aggravation, it was minor in nature and would have resolved within a matter of days, possibly a week or two.

Dr Dalton has provided a report in which he reviews the available documentation, and he considers that the plaintiff's ongoing disabilities are attributable to conditions which arose subsequently and other factors unrelated to the subject incident. For the reasons which Dr Dalton has provided in his report, he does not consider that the plaintiff suffers from any ongoing injuries or disabilities as a result of the incident.

68. As to whether Mr Langdon had any pre-existing injuries, disabilities or pathology relevant to his current presentation, their evidence was:

Dr Blombery states that the plaintiff has significant degenerative changes in the cervical spine which are still present. There is no evidence of actual damage to the cervical spine in the accident that occurred on the boat.

Dr Blombery states that the injuries are relevant insofar as the pre-existing degenerative changes were aggravated. If those degenerative changes had not been present, it is much less likely that the plaintiff would have had ongoing pain in the area.

Dr Dalton notes the plaintiff does have evidence of pre-existing degenerative changes affecting his cervical spine which are responsible for the subsequent complaints of neck pain and related symptoms, notwithstanding the variability in the plaintiff's clinical presentation which is noted in the available records.

Dr Dalton also notes that the plaintiff has been identified as having a Sprengel deformity of his left shoulder. This may be relevant, but Dr Dalton has not viewed any images to determine whether the plaintiff has an omovertebral bar which might account for some of his current neck and shoulder girdle pain.

Dr Dalton also considers that the plaintiff may have some residual symptoms related to his adhesive capsulitis and subsequent shoulder surgery, details of which are not available. Dr Dalton notes that he has not examined the plaintiff and therefore cannot comment on his current presentation, but all of these factors are likely contributing to his ongoing complaints of neck, shoulder and possibly upper limb symptoms.

Dr Dalton notes that over time the plaintiff has had multiple treatments, including multiple CT-guided injections to his cervical spine and shoulder surgery, although he has not seen any operation reports or medical records related to that, and some features of what Dr Blombery refers to as a pain syndrome. Dr Dalton opines that the plaintiff's pre-existing degenerative cervical spine condition and developmental Sprengel anomaly are very relevant to his current presentation, as is the later development of adhesive capsulitis which is unrelated to the incident. Dr Dalton considers that if the plaintiff did not have the pre-existing conditions then it is highly unlikely he would have developed his chronic neck pain and related symptoms.

Dr Blombery states that the plaintiff may have had some later injuries to his cervical spine but, prior to the accident on the boat, he had never complained of neck pain from what Dr Blombery could determine from his reading of the record and from interviewing the patient.

Dr Blombery states that the plaintiff's only complaints were thereafter, and that may have been aggravated on each occasion he had a further injury. The triggering injury was therefore the injury on the boat.

Dr Dalton notes that neither Dr Blombery nor himself have viewed any of the plaintiff's past clinical records and therefore one is unable to state with any confidence whether his pre-existing conditions had been asymptomatic in the past. Dr Dalton also notes that the plaintiff's reporting of the symptoms and the mechanism of injury has varied at different times and has not been consistent, and therefore should not be a basis upon which to determine the extent and nature of the injury resulting from the subject incident.

Dr Dalton, as noted in his report, has identified subsequent events which in his opinion are far more likely to be responsible for the plaintiff's evolving neck pain and related disabilities.

Dr Blombery opines that it is not possible to stratify the contribution that different later injuries may have had in causing aggravation of underlying degenerative changes and a subsequent pain syndrome.

Dr Dalton also notes that the development of the plaintiff's adhesive capsulitis is unrelated to the subject incident and is consistent with the natural history of this condition.

Dr Dalton does not agree with the assumption that the plaintiff's symptoms are related to the subject accident solely on the basis that he reported that he had no prior history of neck or shoulder problems. The medical evidence does not support the relationship that has been proposed.

Dr Dalton considers it implausible to suggest that the incident in question has given rise to the widespread complaints and related disabilities that are recorded in the contemporaneous records that he has viewed. He has provided reasoning for this opinion in his report.

Credibility

69. Before turning to the grounds of appeal, it is relevant at this point to note the primary judge’s findings as to Mr Langdon’s credibility (with which Mr Langdon does not here cavil). Carnival argues that the adverse findings on his credit necessarily infect how the expert evidence upon which Mr Langdon relies on appeal is to be viewed (and give rise to the need for caution in assessing the evidence of lay witnesses insofar as it depends on Mr Langdon’s account of events and their observations of him).

70. Carnival submits that Mr Langdon was an inaccurate historian prone to embellishment and therefore inherently untrustworthy as to matters such as the cause, nature and extent of his injuries. Mr Langdon accepts that the credit findings were adverse to him but nevertheless places weight on what he emphasised was unchallenged evidence of the lay witnesses as to their observations (AT 2.10-11).

71. The primary judge’s findings on Mr Langdon’s credibility are set out at [82]-[120]. As adverted to above, there is no challenge to those findings on appeal. Her Honour “reluctantly” concluded (having observed Mr Langdon carefully while he was giving evidence and during cross-examination) that he had tailored his evidence to portray himself in his most favourable light ([83]) noting that Mr Langdon had given inconsistent accounts of how the incident occurred to the medical experts and to the Court ([83]). While her Honour said that some of the examples of this were minor when viewed overall, they illustrated the unreliability of his evidence.

72. The examples that her Honour gave (accepting that caution is to be exercised in reviewing histories given to health professionals – see [84]) were: a description of the incident given to Professor Dennerstein (before the CCTV had been provided to his legal representatives) that was inconsistent with CCTV footage of the incident and inaccurate ([87]-[89]) that a security man had assisted him back to his chair and that he fell and landed to his left side ([91]); inconsistent accounts of the incident given to Dr Moran in October 2021 ([95]), Dr Blombery on 8 November 2021 ([96]) and Professor Teddy on 9 November 2021 ([93]) (variously that he rolled or fell to the left and as to the height of the fall).

73. Her Honour found that Mr Langdon had consistently attempted to advocate a position in the belief that it would support his case, even when confronted with obvious inconsistency ([91]) and that he demonstrated a willingness to alter the story of how the incident occurred ([98]). Her Honour also observed that Mr Langdon had the ability to move his neck freely (contradicting his oral evidence) (see [103]) and her Honour noted that this inconsistency was noted by Dr Courtenay (who reported that during the informal part of the interview he showed no signs of noticeable restrictions or pain) ([100]) and that this was also the observation made by Professor Teddy during his review ([102]). Her Honour concluded that Mr Langdon was exaggerating the lack of movement in his neck and that he “did a very bad job of it” ([104]).

74. Her Honour noted inconsistencies in the account given by Mr Langdon of the cubicle incident (see [105]-[114]) and that, other than to Mr Dalton, Mr Langdon had not disclosed during any medicolegal assessment that he had undertaken a holiday to Bali in 2019 during which he rode a motor scooter (which required turning his head) and participated in snorkelling ([113]). Her Honour said that the evidence that he undertook a trip to Bali in 2019 was surprising given his evidentiary statement at [81] that he did not think he could now travel overseas or long distances due to his injuries as it caused him too much pain ([114]). Her Honour also referred to incorrect evidence as to the date of photographs taken of him during his attendance at a cricket match in January 2020 and at work on a job site post-COVID ([115]-[119]).

75. Her Honour concluded that she had reservations as to the reliability of Mr Langdon’s evidence where it was uncorroborated ([120]).

76. Carnival thus submits that Mr Langdon having been inaccurate or prone to embellishment affects the reliability of witnesses whose evidence is based on what they saw or heard from Mr Langdon (and the fact that relevant witnesses were not directly challenged in cross-examination about various matters does not overcome that defect in their evidence).

Grounds of Appeal

77. As grounds 1 and 2 challenge the ultimate determination of causation (in respect of the claimed physical injuries and psychological injuries respectively), I propose first to address ground 3 of the grounds of appeal, which goes to the weight placed by the primary judge on the lay witnesses’ evidence.

Ground 3

78. Ground 3 is as follows:

3.   The primary Judge erred in failing to give any or any adequate weight or probative value to the unchallenged and uncontradicted evidence of Caitlyn Langdon, Jessica Langdon, Emily Langdon, Michelle Burgess, Mark Howes and Mark Owens especially relating to their observations of the Appellant before and following the admitted breach of duty.

79. The primary judge noted (at [141]) that there was no submission by Carnival that any of the lay witnesses was untruthful or unreliable. However, her Honour went on to note that their evidence went to what Mr Langdon had told them; and her Honour placed little weight on this evidence, saying that they were “very general statements of little probative value” and did not reflect the opinions of the medical evidence and Mr Langdon’s version of evidence (although noting that that was inconsistent).

80. Mr Langdon submits that the primary judge failed to give proper weight and probative value to the unchallenged observations of the lay witnesses; and he contends that their evidence goes well beyond what he told them.

81. In particular, Mr Langdon refers to the evidence of Ms Burgess (who was then living with him) as to her seeing him constantly in pain and not able to do what he usually did; as well as the evidence of his daughter, Jessica Langdon (a qualified nurse) as to Mr Langdon being completely different to the person he was before the incident on the cruise. Reference is also made to the observations by each of Emily Langdon, Caitlyn Langdon, Mark Owens and Mark Howes of Mr Langdon.

82. Mr Langdon submits that the “apparent treatment” of that evidence deprived the primary judge of significant insight and appreciation of the impact on him of the incident and aftermath of the incident on the cruise.

83. Carnival submits that the primary judge did not fail to give proper weight to the observational evidence of the lay witnesses, emphasising that much of the lay evidence provided in support of Mr Langdon’s claim was given by witnesses who were unable to identify the impact of the cruise incident on Mr Langdon prior to the incident in the toilet cubicle (and hence could not give probative evidence as to which of the incidents was a more likely cause of Mr Langdon’s alleged injuries). As to observations about Mr Langdon’s level of injury and disability after the cruise incident, but before the toilet cubicle incident, Carnival says that this evidence demonstrated that Mr Langdon was capable of: snorkelling during the remainder of the cruise (as confirmed by his daughters, Jessica and Emily Langdon), undertaking day trips into Papua New Guinea in association with the subject cruise; attending a full day of Test Match cricket on 25 November 2017; and undertaking a commercial flight from Brisbane to Melbourne.

84. As to Jessica Langdon’s evidence (to the effect that, although Mr Langdon went snorkelling on the cruise after the incident, on later occasions, she observed that he was unable to swim while in the water), Carnival says that this was inconsistent with the objective evidence of Mr Langdon snorkelling on the subject cruise shortly after the incident and again snorkelling on an overseas trip to Bali in 2019. Carnival notes that Emily Langdon’s evidence during cross-examination was that Mr Langdon went snorkelling on the subject cruise after the incident for about 20 minutes.

85. Carnival points to Caitlyn Langdon’s evidence that her observations of Mr Langdon’s restrictions were things that she had not noticed until at least after the toilet cubicle incident; and that Mr Langdon did not stop water-skiing until 2018.

79. In respect of Ms Burgess, Carnival notes that, during cross-examination, Ms Burgess confirmed that she was aware of the toilet cubicle incident and that it was “roughly” about the time of that incident that Mr Langdon had increased difficulty maintaining his lawns and required more assistance around the house.

80. As to Mr Howes’ evidence, Carnival notes that during his evidence in chief Mr Howes said that he noticed changes to Mr Langdon within approximately six months of the incident; and that he had no recollection of ever being informed of the toilet cubicle incident. Carnival says that Mr Howes’ evidence therefore did not narrow the issue in dispute as to the cause of Mr Langdon’s alleged physical or psychological injuries.

81. Thus Carnival argues that the lay evidence relied upon by Mr Langdon was incapable of resolving any of the real issues in dispute between the parties, including whether the alleged injuries were a result of the cruise incident or a result of a series of unrelated stressors, including the toilet cubicle incident.

82. As to its Notice of Contention, with respect to Ground 3, Carnival submits that, in the event that Mr Langdon establishes that the primary judge erred in failing to give any or any adequate weight or probative value to the unchallenged and uncontradicted evidence of the lay witnesses, the decision below should be affirmed on the basis that the lay witnesses were unable to: comment on the causal relationship between the incident and their observations of Mr Langdon following the cruise incident; or adequately to distinguish between those changes in Mr Langdon caused by that incident as opposed to changes in Mr Langdon caused by other unrelated stressors including the toilet cubicle incident, the blackout events, or the house flooding, development of mould and Mr Langdon’s subsequent protracted legal battle with his property damage insurer in relation thereto.

83. In reply submissions, Mr Langdon reiterates the unchallenged and uncontradicted observational evidence as to his physical fitness and state of mind before the cruise incident compared to the observations after the cruise, placing particular emphasis on the complaint made to Ms Burgess when he returned home from the cruise on 1 December 2017 (consistent with the ship’s medical centre notes) of pain in his neck and shoulders.

Determination

91. To the extent that the primary judge’s findings depend on or are informed by the credibility findings that have been made by her Honour, it is necessary to bear in mind the restraint on appellate review of such findings (see Fox v Percy (2003) 214 CLR 118; [2003] HCA 22). Those principles were restated by Bell, Gageler, Nettle and Edelman JJ in Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55], where, after stating that an appellate court is bound to conduct a “real review" of the evidence at first instance and the reasons for judgment to determine whether the trial judge has erred in fact or law, their Honours went on to say that:

Appellate restraint with respect to interference with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.

92. While Mr Langdon also refers to those two authorities he does so in the context of the ability of an appellate court, on appeal by way of rehearing, to make its own findings of fact (referring also to Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22 at [43]).

93. In the present case, there were two incidents within close temporal proximity which might have triggered the aggravation of Mr Langdon’s pre-existing but asymptomatic degenerative changes in his cervical spine – the cruise incident and the toilet cubicle incident. The observations of lay witnesses (about whom no issue of credibility arose) as to Mr Langdon’s physical abilities and state of mind after the cruise can only have probative force, in answering the question as to which of those two incidents was relevantly the cause or necessary condition of Mr Langdon’s claimed injuries, if those observations are directed to the period between the cruise incident and the toilet cubicle incident (or if they in some way relevantly distinguish between the position before and after the toilet cubicle incident). That is because otherwise all those observations can confirm is that Mr Langdon complained of pain and that there were restrictions or changes in his behaviour without being able to point to which incident was the relevant cause of that change.

94. The primary judge’s conclusion that observations in general terms had little probative value in those circumstances is well made. So, for example, Mr Howes’ observations are of little assistance for the reasons that Carnival has identified.

95. Similarly, the evidence of complaint made by Mr Langdon to Ms Burgess of neck pain on his return home (or the complaints of neck pain made while on the cruise), though clearly before the toilet cubicle incident, says nothing as to whether the neck pain of which complaint was made was more likely to be muscular strain which did not aggravate any pre-existing degenerative changes or whether it was an aggravation of those pre-existing degenerative changes. The mere possibility of the latter does not assist Mr Langdon to discharge his onus on causation.

96. Similarly, the general evidence of mood changes is difficult to assess when it is appreciated that the period between the two incidents was only about a month (and in the interim Mr Langdon had suffered the dizziness episode which no one, other than Mr Large who, as noted above, provided no basis for any such suggestion, has suggested might have been linked to the cruise incident).

97. As a matter of common sense, and leaving aside the medical evidence for the moment, the most reliable indication of the effect (if any) of the cruise incident on Mr Langdon’s pre-existing degenerative spinal changes would seem to be what he could or could not do after the cruise incident but before the toilet cubicle incident. But that is where the evidence as to Mr Langdon’s continued ability to go snorkelling and on excursions during the remainder of the cruise is of some significance even though his daughter considered that there was some curtailment of those activities.

98. I do not accept that her Honour erred as contended for by ground 3. Her Honour took into account the lay witnesses’ observational evidence but made the understandable point that, to the extent that this was based on what Mr Langdon himself had told those witnesses, then its reliability was affected by the finding that he was an unreliable and inaccurate historian; and, to the extent that it was based on their own observations, its value was affected by an inability in general to differentiate between the position up to the toilet cubicle incident and the position thereafter. There is nothing of error in that conclusion.

99. Ground 3 is not made good.

Ground 1 (and Notice of Contention)

100. Ground 1 (and the Notice of Contention insofar as it relates to the claimed physical injuries) challenges the ultimate conclusion as to causation in respect of the claimed physical injuries, i.e., that the cruise incident was a necessary condition of those injuries. Ground 1 is framed as follows:

1.   The primary Judge erred in failing to find that the Respondent’s admitted breach of duty was a necessary condition in the occurrence of the Appellant’s physical injuries to his cervical spine and left shoulder.

Appellant’s submissions

101. Mr Langdon emphasises that both of the orthopaedic surgeons (Dr Moran and Dr Courtenay) accept that at time of the cruise incident he had asymptomatic degenerative changes in his cervical spine; and that both agreed that asymptomatic degenerative symptoms in the spine can be aggravated and become painful. The question, however, is when that occurred in Mr Langdon’s case.

102. Mr Langdon says that the issue between those two experts was whether the cruise incident was sufficient to cause his asymptomatic cervical degenerative condition to become painful. The difference between them appears to be that Dr Moran accepted that Mr Langdon’s neck and shoulder symptoms were attributable to the cruise incident as there were no other relevant neck or shoulder symptoms beforehand whereas Dr Courtenay does not accept that the incident on the cruise caused an aggravation of the asymptomatic degenerative condition. Mr Langdon places weight on the fact that Dr Courtenay was unable to provide any other explanation apart from the incident on the cruise triggering the symptoms of the previously asymptomatic degenerative changes. (That, however, assumes the neck pain immediately after the cruise incident was more than mere muscular strain.)

103. As to the pain physicians, Mr Langdon notes that Dr Blombery opined that the incident on the cruise may have triggered cervical pain by aggravating pre-existing asymptomatic degenerative changes in the cervical spine; and that Dr Dalton accepted that a jarring incident such as he saw on the CCTV may have caused a mirror aggravation of underlying but symptom free degenerative changes; and points out that Dr Dalton explained how adhesive capsulitis can have a co-existing neck pain particularly associated with underlying degenerative changes (with which Dr Blombery agreed).

104. Mr Langdon also places emphasis on the ship’s medical centre notes, which he says clearly indicate an injury to the neck and pain on rotation of the neck, pointing to Dr Guenzel’s assessment (within about two hours of the incident) as to tenderness in the bilateral trapezius area.

105. It is submitted that questioning as to what may have happened in the toilet cubicle on 21 December 2017 needs to be treated with caution because the questions and responses make assumptions which are speculative and/or incorrect (such as the right orbital fracture being caused at the time of the incident in the toilet cubicle). Mr Langdon notes that the only previous incident involving his left shoulder was in 1984, 33 years before the cruise incident, when he was knocked to the ground by a freezer door in the boning room at an abattoir. Mr Langdon’s evidence was that he was off work for three to four months and made a full recovery. Mr Langdon points out that this evidence was neither challenged nor contradicted.

106. As to the shoulder injury, reliance is placed on Mr Large’s report dated 28 September 2019 (as well as an MRI dated 8 May 2018 which revealed subscapular tendinopathy likely associated with mild adhesive capsulitis) in which Mr Large attributed the left shoulder injury to the cruise incident. Mr Langdon points out that Mr Large was not cross examined and that his reports were admitted without objection.

107. Pausing here, I have difficulty placing any weight on Mr Large’s conclusions as to liability – that not being his function as a medical expert. Nor (without any disrespect to him) can I place weight on his conclusions as to the cause of the left shoulder injury in circumstances where his instructions appear to have omitted any reference to the toilet cubicle incident and the report of Dr Jenkins, which was enclosed in the instructions to Mr Large, incorrectly referenced a fall on the left shoulder. The fact that Mr Large was not cross-examined does not mandate that his evidence be accepted; rather, it must be considered in light of the evidence as a whole (see, albeit in a different context, Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505 per Young CJ in Eq, as his Honour then was, at [245]-[257]).

108. Mr Langdon submits that he has discharged his burden of proof on the issue of causation in relation to the neck injury by reference to the evidence of his pre-cruise fitness and lack of restrictions in his physical ability and the evidence that, from the time of the cruise incident, he experienced symptoms consistent with an aggravation of the degenerative condition explained by the sudden and unexpected vertical drop onto the tiled surface when the step collapsed and, as to the shoulder injury, Mr Langdon places weight on the “unchallenged” opinion of Mr Large.

Respondent’s submissions

109. Carnival submits that evidence of a “possible” aggravation of pre-existing degenerative changes to the cervical spine, as suggested by Dr Blombery, cannot satisfy the onus on the question of causation. (Mr Langdon accepts that the reasons at [212] go no further than to accept that Mr Blombery’s evidence raised a possibility that the jarring caused an aggravation of pre-existing changes and that this is not sufficient for his case (AT 2.1-4).)

110. Carnival points to the CCTV evidence of the incident (which confirms that Mr Langdon did not strike his head or neck) as well as Mr Langdon’s capacity to perform physical tasks and activities for the remainder of the subject cruise; and the toilet cubicle incident (which was causally unrelated to the cruise incident and of enough force to smash a toilet bowl). Carnival accepts that there is no evidence to support a finding that Mr Langdon hit his head on the cubicle wall or toilet bowl during the toilet cubicle incident but says that it did not need to establish that this occurred; rather, that it was a matter of the force of any impact, as distinct from the specific body parts that were impacted. Carnival also points to the evidence of Dr Moran that he would have expected that a force sufficient to break even a cracked toilet bowl would be enough to aggravate an underlying neck issue, with which Dr Courtenay “certainly” agreed.

111. In particular, Carnival notes that, while Dr Courtenay acknowledged that the cruise incident may have caused a tightness within Mr Langdon’s muscles, Dr Courtenay did not believe that the incident caused any structural injury to Mr Langdon’s cervical spine and regarded the toilet cubicle incident as “dramatically more intense and more jarring” than the cruise incident.

112. Carnival says that Dr Courtenay did not accept the proposition that what was seen on the CCTV footage of the incident was sufficient to cause the asymptomatic cervical degenerative condition to become painful; Dr Courtenay’s evidence being that Mr Langdon’s full range of motion in the neck on examination after the incident was inconsistent with a structural injury to the neck. I note that in reply submissions Mr Langdon cavils with this, saying that it is not correct to assert that he had a full range of neck movement when examined by the ship’s doctor, pointing to the note in the ship’s medical centre records that there was pain on rotation of the neck in the bilateral trapezius area. Mr Langdon accepts that the ship’s doctor did not specifically note whether he had a full or restricted range of neck movement but Mr Langdon emphasises that the doctor clearly noted pain on movement.

113. As to the ship’s medical centre notes, Carnival says that these do not clearly indicate an injury to Mr Langdon’s neck simply because he reported pain on rotation of the neck. Carnival points out that the pleaded injury was to the cervical spine, and not muscular strain to the neck and says that, to that extent, the primary judge’s finding that the more likely explanation is that Mr Langdon suffered from muscular strain after the cruise incident is supported by the contemporaneous notes.

114. Carnival maintains that muscular injury is capable of explaining Mr Langdon’s complaint of pain in the region of the neck after the incident; and that this is consistent with Dr Guenzel’s notes recording that there was no midline tenderness at the cervical spine (those notes recording the pain as occurring upon the rotation of the neck but “in [the] bilateral trapezius areas”).

115. Thus, Carnival argues that the fact that reported pain at the neck in the immediate aftermath to the incident does not establish that Mr Langdon sustained an injury to the bony structure of the cervical spine.

116. Insofar as Mr Langdon refers to the opinions of Dr Blombery and Dr Dalton (to the effect that a jarring incident may cause aggravation of asymptomatic degenerative changes), Carnival points to Dr Dalton’s evidence that there are many causes of neck or back pain, including muscular causes, and that the limited records of Dr Jenkins do not establish that the neck pain was a symptom of a structural injury to the cervical spine.

117. Having regard to the evidence of Mr Langdon’s activities for the remainder of and shortly after the cruise, Carnival says that there was sufficient evidence before the primary judge to support her Honour’s conclusion that Mr Langdon sustained only a muscular strain in the cruise incident.

118. As to the shoulder injury (and the reliance placed by Mr Langdon on Dr Moran’s explanation of the relationship between the neck and a frozen shoulder), Carnival points out that Dr Courtenay noted a number of other relevant factors when considering the cause of Mr Langdon’s alleged injuries that were missing from Mr Langdon’s report of his medical history, including instances of blackouts and falls; and that Dr Courtenay did not agree that it was a “probability”, as opposed to a “possibility”, that the incident was the likely cause of Mr Langdon’s alleged shoulder injury.

119. Carnival thus submits that the expert opinion evidence provided a reasonable basis for her Honour to find that Mr Langdon sustained no more than muscular strain during the cruise incident and that, in the context of the toilet cubicle incident, Mr Langdon has failed to discharge his onus of establishing that the pleaded injuries and disabilities are a result of the incident.

120. In relation to its Notice of Contention, with respect to Ground 1, Carnival submits that even if its breach of its duty of care was a necessary condition in the occurrence of Mr Langdon’s physical injuries to his cervical spine and left shoulder, Mr Langdon did not sustain any loss or damage as a result of the injuries to the cervical spine and left shoulder sustained in the incident; and that the cause of Mr Langdon’s loss or damage (if any), was the toilet cubicle incident and blackout events. Again, it is noted that both Dr Moran and Dr Courtenay expressed the opinion that a force sufficient to break a toilet bowl, as occurred in the toilet cubicle incident, was sufficient to aggravate an underlying asymptomatic degenerative condition of the cervical spine. Carnival argues that there was therefore ample evidence that permitted a finding that the toilet cubicle incident in effect overwhelmed (or, in its words, subsumed) any effect or injury caused or materially contributed to by the cruise incident.

Determination

121. The nub of the case for Mr Langdon (as confirmed at AT 17) was that because there were no complaints of neck pain in the period prior to the incident on the cruise and there was complaint of neck pain after the cruise and before the toilet cubicle incident, then in the absence of another explanation for the pain it is self-evident that it was caused by the cruise incident. I do not consider that this conclusion follows on the balance of probabilities in circumstances where that does not address the evidence that the neck pain felt prior to the toilet cubicle was more likely to have been a minor muscular strain that resolved itself within three or four weeks.

122. In my opinion her Honour did not err in concluding that Mr Langdon more likely suffered a muscular strain as a result of the cruise incident. I have reviewed the medical evidence (against the background of the complaints that Mr Langdon made about neck pain while on the cruise and in the period thereafter; and the evidence as to what he continued to be able to do following the cruise incident). I am not persuaded, on the balance of probabilities, that the incident on the cruise ship triggered the aggravation of pre-existing degenerative changes to the cervical spine (nor that it caused his later frozen shoulder) as opposed to causing him some muscular strain. In that regard, I note that the CCTV footage makes clear that Mr Langdon did not fall onto his left shoulder or neck (as various of the medical histories inaccurately recorded) and that the “frozen shoulder” symptoms appeared after the toilet cubicle incident.

4. Order the cross-respondent to pay the cross-appellant’s costs of the cross-appeal.

199. KIRK JA: I agree with Ward P.

200. BASTEN AJA: In relation to the appeal, I agree with the reasons and orders proposed by Ward P for dismissing the appeal. There are, however, two issues which are not dispositive which are addressed below. The first concerns the applicable law, not dispositive in the present case because of the way the arguments were represented. The second concerns the contingent assessment of damages.

201. In relation to the cross-appeal, in my view the primary judge applied the wrong principle with respect to offers of compromise under the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 20.26. That issue is dealt with below.

Choice of law

202. This is the second case before this Court this year in which a claim for damages was made and litigated without close regard to the applicable law: see Broadspectrum (Australia) Pty Ltd v Farmer,[1] a case involving an accident in Nauru.

     1. [2024] NSWCA 81 at [4]-[7].

203. The primary judge, in keeping with the way in which the case was presented at trial, assumed that the applicable law was that of the forum, namely New South Wales. The only statute referred to was the Civil Liability Act 2002 (NSW). This was curious, because there was no evidence that the claim itself had any connection with New South Wales, other than being brought in a NSW court, but it was asserted by counsel that the ticket stated that NSW law governed the contract. (It is possible that proceedings were commenced in the NSW Supreme Court for that reason, or possibly because the respondent had its registered office in New South Wales, if that were so.)

204. One curious aspect of the case is that, although the claim appears to have been resolved as a claim in tort, for negligence, the pleadings invoked the Australian Consumer Law (ACL) and an implied term of due care and skill in the contract: there was no express reference to the tort of negligence. Had the case been run as pleaded there may have been a question as to the application of the ACL and the Civil Liability Act: cf Insight Vacations Pty Ltd v Young. [2] Whatever the proper law of the contract, the ACL would operate in accordance with its terms: Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd. [3] It also follows that the Court was exercising federal jurisdiction. Reliance in the pleading on the ACL and implied contractual terms may have been intended to avoid choice of law rules applying to torts.

     2. (2011) 243 CLR 149; [2011] HCA 16 at [24]-[27], [33].

     3. (1996) 39 NSWLR 160, 164F (Gleeson CJ).

205. The incident upon which the appellant sued took place on board a cruise ship, the Pacific Aria, four days into a ten-day cruise, departing from Brisbane and returning to Brisbane, but visiting Papua New Guinea and the Solomon Islands. It is possible, though unlikely, that the ship was in Australian waters off the coast of Queensland at the time of the accident. It is more likely that it was in international waters, or in waters of Papua New Guinea or the Solomon Islands.

206. In John Pfeiffer Pty Ltd v Rogerson [4] the High Court held that in relation to a tort committed in Australia, the applicable substantive law was that of the lex loci delicti (the place where the tort was alleged to have occurred). That choice of law principle applies to a tort which occurred outside Australia: Regie Nationale des Usines Renault SA v Zhang. [5] The tort was completed when, and therefore located where, the plaintiff suffered his injury: Williams v Milotin. [6]

     4. (2000) 203 CLR 503; [2000] HCA 36.

     5. (2002) 210 CLR 491; [2002] HCA 10.

     6. (1957) 97 CLR 465, 474; [1957] HCA 83.

207. If the injury occurred whilst the ship was in Australian waters, the law of Queensland applied. If the injury occurred whilst the ship was in Papua New Guinea waters, the law of that country applied. If the ship had reached the Solomon Islands, the law of that country would have applied.

208. If, however, the ship was in international waters, the applicable law is less certain. What is clear is that international waters are not a law-free zone: The Commonwealth v Yarmirr. [7] In such a case, the applicable substantive law is likely to be the law of the flag (or place of registration) of the ship. [8] The defendant appears to be a British corporation, which suggests the ship operated under the British flag, which in turn would suggest that British law was applicable.

     7. (2001) 208 CLR 1; [2001] HCA 56 at [34]-[36].

     8. M Davies, AS Bell, PLG Brereton, M Douglas, Nygh’s Conflict of Laws in Australia, (10th ed, Lexis Nexis Butterworths, 2020) pars 20.71-20.73.

209. None of these speculations can be resolved in the present case. The choice of law issues raised in such cases may be overlooked or ignored, perhaps because the expense in resolving them is seen as unwarranted. That will not always be the case: in Union Shipping New Zealand Limited v Morgan [9] the application of New Zealand law as the law of the flag to a claim for damages for personal injury which occurred in New South Wales waters may have provided a full defence. However, in principle, as the respondent accepted, the choice of applicable law is neither arbitrary nor a matter of choice for the parties.

     9. (2002) 54 NSWLR 690; [2002] NSWCA 124 at [8].

Assessment of damages

210. The principle that, in most cases, a trial judge who has dismissed a damages claim on the basis that liability was not established should contingently assess damages, against the possibility that an appeal court will reverse the judgment on liability. The rationale for the principle is that, unless there has been a separate hearing with respect to liability, the trial judge will have heard all the evidence relevant to damages. If the ruling on liability is overturned, there would need to be a second trial with respect to damages, if not already assessed or agreed.

211. Nevertheless, there are circumstances in which a contingent assessment is not realistic because it operates on counter-factual basis and it will not always be possible to identify the necessary counter-factual elements.

212. In the present case there were, broadly speaking, three possible assessments of the injury caused by the accident on the cruise ship. The first was that the appellant suffered only muscular injuries which resolved relatively quickly; the second was that he suffered an aggravation of the degenerative condition in his spine; the third was that his injuries included a psychological condition. The primary judge, undertaking a contingent assessment of non-economic loss stated:[10]

“251   I do not accept that the plaintiff suffered any psychiatric or psychological injuries caused by the cruise incident. Otherwise, I accept the plaintiff’s submissions. Taking them into account, I assess the plaintiff’s non-economic loss at 25%.

252   If I did, it was minor. It is more likely to be related to his current unsatisfactory mouldy living conditions and long running dispute with the insurer.”

10. Langdon v Carnival PLC t/as P&O Cruises Australia [2023] NSWSC 1406.

213. The latter observation was intended to refer to the asserted psychological conditions: the judge’s assessment did not include them, but only the physical condition involving pain and restriction in the neck and left shoulder. [11] Given that the medical assessments relied upon by the plaintiff depended in part on the history and reports given by the plaintiff, it is by no means clear how the trial judge dealt with her earlier findings as to the unsatisfactory nature of the plaintiff’s evidence, and the inconsistencies in his accounts relied upon by different medical experts.

     11. Primary judgment at [232].

214. Whether or not the trial judge was correct in seeking to assess damages in these circumstances, given the concurrent findings of the trial judge and this Court with respect to liability, this Court need not address ground 4 dealing with the provisional or contingent assessment of the appellant’s damages. If it need not, it is better not to do so, in circumstances where the same difficulties as to the precise counterfactuals remain. That approach is consistent with the principles with respect to appellate review expressed by the High Court in Boensch v Pascoe. [12]

     12. (2019) 268 CLR 593; [2019] HCA 49 at [7]-[8] (Kiefel CJ, Gageler and Keane JJ); [101] (Bell, Nettle, Gordon and Edelman JJ).

Offers of compromise

215. The respondent, Carnival, filed a cross-appeal challenging the refusal of the primary judge to award costs on an indemnity basis from the date of one or other of two offers of compromise made by Carnival prior to the trial. [13]

     13. Langdon v Carnival PLC t/as P&O Cruises Australia (No 2) [2024] NSWSC 38 (“Langdon (No 2)”).

216. The first offer of compromise was made on 24 June 2021 and provided that the plaintiff’s claim should be dismissed on the basis that each party bear his or its own costs. Carnival stated that it had incurred some $8,550 in costs by the time the offer was made. The primary judge concluded that that was a “genuine and significant compromise”. [14]

     14. Langdon (No 2) at [22].

217. The second offer, made on 19 April 2022, was for payment of $80,000. At that stage, Carnival had incurred costs of some $35,000 which, if the offer had been accepted, would have been foregone and Carnival would have been required to pay the plaintiff’s costs to that time. The trial commenced a year later, on 27 March 2023.

Reasoning of trial judge

218. Although the costs judgment ran to 112 paragraphs, the reasoning for dismissing the application for indemnity costs was dealt with in three paragraphs. Each offer relied upon and complied with UCPR, r 20.26, and the judge correctly set out r 42.15A (dealing with offers made by a defendant and not accepted by the plaintiff); however, there was no reference to the principles pursuant to which a court should otherwise order, so as to depart from the default position that the defendant who had achieved a better outcome than the offer was entitled to costs assessed on an indemnity basis from the day after the offer: UCPR, r 42.15A(2). The passage in the costs judgment dealing with legal principles covered two paragraphs, stating the general rule with respect to payment of costs and discussing cases dealing with Calderbank offers. [15] The only other discussion of principles occurred in the context of an application by the plaintiff, readily dismissed, that Carnival should pay his costs for a period. [16]

     15. Langdon (No 2) at [7]-[8].

     16. Langdon (No 2) at [88]-[90].

219. With respect to the first offer of compromise, the judge noted the state of the evidence, observing that it was “only when the [defendant’s] orthopaedic reports were served that the plaintiff and his solicitors would have become aware that causation was highly contested”. [17]

     17. Langdon (No 2) at [109].

220. With respect to the second offer of compromise, the judge observed that “the plaintiff’s solicitors were already aware of the plaintiff’s inaccurate evidence as to causation in the cruise incident and somewhat hazy evidence of the bathroom incident”: at [110]. The judge continued:

“111   At the time of service of both offers of compromise, the defendant should have served its medical evidence by 11 March 2022, it had only served a psychiatric report of Dr Samuell, albeit a few days late. At the time that the offers of compromise were made, the plaintiff had no medico-legal evidence from the defendant as to causation. It was not unreasonable for the plaintiff not to accept the defendant’s offers of compromise. In these circumstances, the plaintiff is not liable to pay the defendant’s costs on an indemnity basis.”

221. The last two sentences set out above imply that the defendant would only be entitled to indemnity costs if, at the time of the offer, it established that it was “unreasonable” for the plaintiff not to accept the offer. There was no explanation as to how that test was derived from r 42.15A, nor was it based upon authority: indeed, no authority was referred to.

Construing rule 42.15A

222. The language of r 42.15A requires that, to avoid an order for indemnity costs, the unsuccessful plaintiff bears the burden of persuading the Court to order otherwise. At a minimum, the reasoning failed to recognise that the onus lay on the plaintiff to establish that he had acted reasonably in not accepting the offer. [18] For that reason alone, the primary judge applied the wrong principle. However, there was a further and more substantial error.

     18. As to authority, see South Eastern Sydney Area Health Service v King [2006] NSWCA 2 at [83] (Hunt AJA; Mason P and McColl JA agreeing); Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 at [29], [45] (McColl JA, Gleeson JA and Sackville AJA agreeing).

223. The concept of reasonableness requires contextual explication. First, there is a question of the correct perspective. Rule 42.15A deals with offers made by a defendant, not the plaintiff. The plaintiff should know from the outset what is required for success in his or her case: there should be no need to tell the plaintiff what the case is about. This was not a case in which the defendant was seeking to raise some affirmative defence: it only sought to challenge the plaintiff’s factual claims. Indeed, it did not call witnesses to dispute the factual claims as to what had happened. In those circumstances, it would be most unusual to require the effectiveness of an offer of compromise to depend on whether the defendant had served all of its evidence. It would be even more exceptional to find that a plaintiff had been reasonable in not accepting an offer because there was further evidence to be served by the defendant. The effect of the approach adopted by the trial judge would be to render all offers potentially ineffective, even if made after the whole of the plaintiff’s evidence had been served, if any material proposed to be relied on by the defendant were outstanding. Indeed, that approach depended on a hindsight evaluation of the significance of evidence served after the offer had expired.

224. Secondly, it is not consistent with a purposive construction of r 42.15A to assess the plaintiff’s failure to accept an offer by a standard of reasonableness. Litigation is inherently risky, especially where a plaintiff is relying upon his or her own account being accepted by the trial judge following cross-examination, the effect of which, before it occurs, can only be a matter for speculation. There will always be aspects of the case which will be difficult to assess in advance of the trial.

225. The rule requires that there be a genuine compromise proposed by the defendant; it does not require that the amount offered be “reasonable”. The operation of the rule should not depend upon whether, viewed with hindsight, the Court considers that the plaintiff acted “reasonably” in not accepting the offer. A rational approach for a plaintiff considering an offer by the defendant would be (i) to identify the range of damages which might be awarded if the claim were successful, (ii) choose an amount within that range which might reasonably be available and then discount that amount to take account of the possibility that the plaintiff might not be successful, having regard to the vicissitudes of a trial; (iii) reduce the amount by unrecoverable costs and (iv) make allowance for the possibility of an adverse costs order in the event the claim fails. Whether or not such an exercise is undertaken by the plaintiff’s legal advisers on receipt of an offer, it is not an exercise which can be expected of the Court dealing with the costs following the failure of the plaintiff to better the offer. However, unless some such exercise were to be undertaken, it is difficult to understood what is meant by describing the plaintiff’s refusal of the offer as “not unreasonable”.

Cases dealing with offers of compromise

226. Turning to the authorities, in New South Wales Insurance Ministerial Corp v Reeve, [19] a personal injury case, the plaintiff made an offer not accepted by the defendant, which was bettered in the judgment. The Master refused indemnity costs, for the following reasons, set out by Gleeson CJ on appeal:

“I am of the view in the circumstances of this matter that given the material which was available to the defendant at the time at which the offer of the plaintiff was made, it was reasonable for the defendant to take the view that it had a good chance of successfully defending the action, bearing in mind the circumstances of the accident and the medical evidence it had available to it. In light of this I would not be prepared to order that the plaintiff have its costs on an indemnity basis from the date of the offer.”

As to this reasoning, in substance identical with that in the present case (albeit dealing with a plaintiff’s offer which the plaintiff bettered at trial), Gleeson CJ stated:

“By implication, what the master was saying was that he was making an order otherwise than the order to which the plaintiff was prima facie entitled under Pt 52, r 17(4).

In a case in which the major issue turned out to be an issue as to contributory negligence, it is not entirely clear what is involved in the proposition that it was reasonable for the defendant to take the view that it had a good chance of successfully defending the action, nor is it clear what was the relevance of the reference to the medical evidence available to the defendant. There was never any doubt that the plaintiff was made paraplegic. On any view of the matter, the plaintiff suffered extremely serious personal injuries as a result of the accident.

…

It is impossible exhaustively to state the circumstances in which a discretion to contrary effect might be exercised, and it would be imprudent to attempt any such exhaustive statement. However, I do not read Maitland Hospital v Fisher [No 2] as authority for the proposition that a discretion should be exercised against making an order for indemnity costs in any case in which it was reasonable for the defendant to take the view that it had a good chance of successfully defending the action. The prima facie consequence, which will apply in the ordinary case, is that in the circumstances postulated by the rule an order for indemnity costs will be made.”

19. (1993) 42 NSWLR 100.

227. In Morgan v Johnson [20] Mason P summarised the relevant principles, including the following:

“(4) Lying behind the rule is the common knowledge that “litigation is inescapably chancy”: Maitland Hospital (at 725). For this reason, the ordinary provision is expected to apply in the ordinary case: ibid NSW Insurance Ministerial Corporation v Reeve (at 102-103). The mere fact that it was reasonable for the litigant to take the view that he or she did in rejecting the offer is not enough to displace the rule: NSW Insurance Ministerial Corporation v Reeve (at 102). As Clarke JA expressed it in Houatchanthara (at 2-3):

‘The rule lays down the general principle that should be applied, and the order provided for in that rule should only be departed from for proper reasons which, in general, only arise in an exceptional case.

It is clear that if the rule operates, the plaintiff will be significantly disadvantaged, but that disadvantage flows naturally from the risks of litigation. The idea behind the rule is to encourage settlement or compromise of proceedings, and more specifically, to encourage litigants to give serious consideration to the settlement of proceedings. Where an offer is made by a defendant to a plaintiff, the latter is put on notice that unless he or she accepts that offer, there is a significant risk that the order provided for by the rule may follow. In declining to accept the offer, the plaintiff undertakes the risk and the consequences that flow naturally from that risk.’”

20. (1998) 44 NSWLR 578, 582

228. McColl JA observed in Leach:

“47   An ‘exceptional circumstances’ test could be seen as a gloss on the language of the relevant rules their text does not admit. That suggestion was discounted by Hely J in relation to the like power to "otherwise order[s]" in O 23, r 11(4) of the Federal Court Rules 1979 (Cth) (as then in force): Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) [2004] FCA 1437; (2004) 212 ALR 281 (at [17]). Rather, his Honour was of the view that such language merely "convey[s] that the prima facie position should only be departed from for proper reasons which, in general, only arise in an exceptional case". In my view his Honour's observation sufficiently encapsulates the approach to be adopted in the present case.

48   It is impossible exhaustively to state the circumstances in which the court's discretion to ‘order otherwise’ might be exercised: New South Wales Insurance Ministerial Corporation v Reeve (at 102). The mere fact that it was reasonable for the litigant to take the view that he or she did in rejecting the offer is not enough to displace the rule: Morgan v Johnson (at 582). However that does not mean that reasonableness of the rejection is an irrelevant consideration: see Seven Network Ltd v News Ltd (at [64] - [67]); Uniting Church in Australia Property Trust (NSW) t/as Northaven Retirement Village v Takacs (No 2) [2008] NSWCA 172 (at [15]) per Hodgson JA (McColl JA agreeing); cf Basten JA (at [32] - [33]).”

229. In The Uniting Church v Takacs (No 2) [2008] NSWCA 172, a case involving an offer by a defendant, I reasoned (albeit in dissent):

“31    Such an offer must be seen in the context of existing costs rules. Any party to civil litigation, where the ordinary rule is that costs will follow the event, must, in assessing the likely financial outcomes, take account of the possibility of having to pay two sets of costs if unsuccessful in the litigation. In the Supreme Court, that general principle is encapsulated in r 42.1 and is also subject to the power of a court to make some other order. That may occur where the successful party has engaged in what is sometimes described as “disentitling conduct”: see generally Donald Campbell and Company Ltd v Pollak [1927] AC 732; Ritter v Godfrey [1920] 2 KB 47. The circumstances justifying a different order are not limited to cases of disentitling conduct, but such an order is not justified merely because the unsuccessful party acted reasonably. That is because an adverse costs order is made to compensate the successful party in respect of its costs (or part thereof) and not to punish the unsuccessful party for unreasonable or inappropriate conduct: see generally Latoudis v Casey [1990] HCA 59; 170 CLR 534 at 569 (McHugh J).

32    The only effect of an indemnity costs order is to increase the amount of the recoverable costs: it does not interfere in any respect with the justification underlying the usual order that costs follow the event. Accordingly, in terms of policy, it is not self-evident that the discretion to decline to award indemnity costs should depend upon the reasonableness or otherwise of the conduct of the offeree in not accepting the offer. Again, to take such matters into account is to invite consideration of the state of knowledge of the offeree, the degree of preparation of the case and the content of any legal advice then obtained. That in turn invites the presentation of evidence as to those matters. The alternative is for the Court awarding costs to engage in speculation and possibly reconstruction of the state of affairs from the perspective of the offeree at the time the offer was made. In my view this is not an exercise to be encouraged unless the terms of the rule demand it.

33 The rule does not in express terms make any such demand: it does not refer to a “reasonable” offer of compromise, nor to an “unreasonable” failure to accept the offer. Justification for making orders otherwise than in accordance with r 42.15A(2) should properly be found in considerations which would be deemed relevant for the purposes of otherwise ordering in relation to the general rule (that costs follow the event): see r 42.1. No such circumstances arise in the present case. It follows that the appellant is entitled to its costs at trial on and from 20 August 2005 on an indemnity basis.”

230. This Court noted in Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [21] that an offer in accordance with [UCPR], r 20.26, “would have carried with it a presumptive entitlement to indemnity costs if a judgment were obtained no less favourable than the terms of the offer: r 42.14.”

     21. [2011] NSWCA 344 (in my reasons, McColl and Campbell JJA agreeing).

231. There has been a debate as to whether “exceptional” circumstances are required for the Court to otherwise order. The cases were addressed, but the apparent conflict not resolved, in Barakat v Bazdarova. [22] However, the debate is unconstructive. The point of substance is that the presumptive or default rule (for indemnity costs) will apply in the ordinary case. That means that something extra-ordinary is required for the Court to order otherwise. Whether that is to be described as “exceptional circumstances” or not is largely immaterial. It is sufficient to say that the primary judge did not apply that test in the present case. Further, to the extent that the reasonableness of the plaintiff’s conduct is relevant, for the reasons given above, some further elucidation is required as to the content of the criterion being applied.

     22. [2012] NSWCA 140 at [42]-[50] (Tobias AJA, Bathurst CJ and Whealy JA agreeing).

Application of rule

232. The appellant did not seek to demonstrate in this Court that his claim was other than ordinary; nor did he seek to demonstrate that the first offer was otherwise than a genuine compromise. Nevertheless, it has been observed that a “walk-away” offer, with no liability for costs, is little more than an invitation to capitulate. [23] The closer to the commencement of the proceedings the offer is made, the lower will be the amount of costs potentially avoided and the smaller the element of compromise. In proceedings commenced (whether appropriately or not) in this Court, it may be assumed that capitulation to save some $8,500 in a possible adverse costs order served with an amended defence, either does not involve a genuine compromise, or is a compromise of a kind which does little to promote the settlement of a non-frivolous claim. Those circumstances warrant the Court otherwise ordering with respect to that offer. However, none of those circumstances do not operate with respect to the second offer and there should be an order for indemnity costs to operate from 20 April 2022.

     23. See Leach at [49]-[52].

233. Accordingly, I propose the following orders with respect to the cross-claim:

1. Grant the applicant leave to cross-appeal from the refusal of the trial judge to award the defendant indemnity costs.

2. Allow the cross-claim and vary order 1 made by the primary judge on 1 February 2024 so that it provides:

Order that the plaintiff pay the defendant’s costs of the proceedings –

1. to be assessed on the ordinary basis up to and including 19 April 2022, and

2. thereafter on an indemnity basis.

3. Order that the cross-respondent pay the cross-appellant’s costs of the cross-appeal.

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Endnotes

Decision last updated: 16 July 2024