Sultan v Carbon Consulting International Australia Pty Ltd
[2010] QSC 194
•4 June 2010
SUPREME COURT OF QUEENSLAND
CITATION:
Sultan v Carbon Consulting International Australia Pty Ltd & Anor [2010] QSC 194
PARTIES:
OMAR FAROOQ SULTAN
(plaintiff)
v
CARBON CONSULTING INTERNATIONAL AUSTRALIA PTY LTD ACN 001 285 927
(first defendant)
and
NEW ASIAN SHIPPING CO LIMITED
(second defendant)FILE NO/S:
BS2356/03
DIVISION:
Trial Division
PROCEEDING:
Trial
DELIVERED ON:
4 June 2010
DELIVERED AT:
Brisbane
HEARING DATE:
26 - 30 October 2009
JUDGE:
Douglas J
ORDER:
Judgment for the second defendant with costs
CATCHWORDS:
TORTS – NEGLIGENCE – PROOF OF NEGLIGENCE – WEIGHT AND CREDIBILITY OF EVIDENCE – where plaintiff alleged to have slipped and suffered personal injury while walking along the deck of a ship – whether plaintiff credible witness – whether evidence establishes on balance of probabilities that the plaintiff slipped on the ship’s deck – whether evidence establishes on the balance of probabilities that the second defendant breached the duty of care it owed to the plaintiff by failing to maintain the walkway in a non-slip condition
Occupational Health and Safety (Maritime Industry) Act 1993 (Cth), s 11, s 13
New South Wales v Fahy [2007] HCA 20; (2007) 81 ALJR 1021
COUNSEL:
C Newton for the plaintiff
No appearance for the first defendant
J A Griffin QC with R J Clutterbuck for the second defendant
SOLICITORS:
McMillan Boylson Lawyers for the plaintiff
Cleary & Lee for the second defendant
[1] Douglas J: The plaintiff is a marine surveyor who is now 51 years old, having been born on 18 June 1958. He was 41 when he says he was injured in an accident on 15 March 2000 while walking on the deck of a ship known as the MV Cleopatra Dream. He had boarded the vessel by an accommodation ladder with another marine surveyor, Mr Sekander, also working for his employer, a company called Carbon Consulting International Australia Pty Ltd (“CCI”). They then walked along an area painted green between the number eight hatch and the number nine hatch on the vessel which was a Cape carrier then moored at Hay Point in North Queensland.
[2] His action against CCI has settled but the proceeding has continued against the second defendant, New Asian Shipping Co Limited, the owner of the MV Cleopatra Dream. I shall refer to it simply as the defendant. The witnesses relevant to the plaintiff’s claimed accident were himself, Mr Sekander and Mr Noronha, the chief officer of the ship. A statement by the vessel’s captain, Captain Jayanta Basu, who was not available to give evidence, was also tendered.
The accident
[3] The plaintiff’s evidence, which was controversial, was that, as he approached a bollard on the deck of the ship between those two hatches, he was in the company of Mr Sekander, who was walking ahead of him, probably with the chief officer of the ship, Mr Noronha. One of the junior mates of the ship’s crew was walking with him. They were walking towards the accommodation section of the ship to undertake an initial draft survey of it before it was to be loaded with coal. As he was walking near the bollard he noticed that the deck “had a bit of a squeak” and he started to lose his footing. He said he told Mr Sekander that it was slippery and, in beginning to slip, that he turned and landed partly on his hands. He said, however, that he ended up falling on his back and his bottom and slid into the bollard. He said he hit his left knee in particular. His description of how he landed, when he said that he fell, was that he landed on his right hip around the buttock area. This rather confusing description of the event was not consistent with earlier versions he had given. I shall refer to them later.
[4] He noticed a sharp stabbing pain between his shoulders and said that his wrists were a bit sore. Mr Sekander asked him if he was alright and he said that he was fine. He said that Mr Sekander picked him up and said that the deck was wet. Mr Sultan got up and continued to walk with everyone else, as he said in evidence, “a bit more carefully this time”.
[5] He and Mr Sekander continued with their survey of the ship and returned to the area of the fall as they were leaving. He said he had a look at the area, went down on one knee and noted that it was quite slippery and had a wet, oily feel. He said that one would normally expect such a surface to be a non-slip surface but that non-slip surfaces can be eroded away over time. He also said that it would be possible for oil to have come into the area if the deck had been hosed down, washing oil across the deck from hydraulic jacks used to open the panels over the hatches. There was also a mooring winch near the area where he slipped which he said would have been hydraulic or electro-hydraulic and another potential source of oil.
[6] Mr Sultan’s view of the defects identified by him during the survey he conducted on 15 March 2000 was that the ship’s problems were significant and suggestive of excessive oil leakage from the hydraulic system. He pointed out that the surveyors’ visit to the ship was not recorded in the ship’s log and that he had seen no “port log” relevant to the defendant’s ship. He said the port log was important in recording down time relevant to possible contractual delays. He was also unable to find any item in the paint inventory meeting the description of non-skid paint.
[7] An earlier version of a plan drawn by the plaintiff for his solicitors dated 24 February 2003, almost three years after the accident, indicated a different position for the accident than that which he now describes, showing that the accident happened near a set of bollards or mooring bitts further to the stern of the ship and close to the hand rail, unlike the bollards which he now identifies as the ones which he hit. Taken with a number of inconsistencies, highlighted in the cross-examination, of his description of events in a variety of documents collected in Exhibit 10 these versions have raised serious doubts in my mind about whether an incident of the type he alleges actually happened. This is particularly so when one compares his versions with the evidence of Mr Sekander and that of Mr Noronha that they observed no such incident.
[8] One of the significant omissions in any of the descriptions is any earlier reference to him slipping and falling because of oil on the surface of the passage, apart from references to a failure to remove “other liquids” in a document dated 24 February 2003 as a Form 1 under the Personal Injuries Proceedings Act 2002 and in a document dated 8 July 2003 provided to WorkCover. Nor did he refer, in any of the documents, to evidence he gave in this court that, on his way off the ship with Mr Sekander, he knelt down and felt the surface where he had slipped with his hand noting that it was moist or oily.
[9] There were also inconsistencies in his various descriptions of his fall as to whether he landed on his hands and knees or on his side or on his behind or buttock. There were several versions of what happened given by him in a variety of documents before the trial. Nor did he mention an injury to his right knee in his report to his employer although that now forms part of his claim.
He denied tripping on a bollard or a stanchion socket or telling Mr Sekander that he tripped over such a socket. He was wearing safety footwear and had a torch on him but did not use the torch. He agreed that he did not tell Mr Noronha about the oil on the surface of the walkway he noticed when he was on his way off the ship.
Mr Sekander was the marine surveyor also employed by CCI when the two boarded the MV Cleopatra Dream in March 2000 to conduct the survey and Mr Sultan incurred his injury. By then he had conducted four or five surveys with Mr Sultan including one on another ship earlier that day which lasted about two hours, possibly in the morning. He said that Mr Sultan was then in a training role which was a procedure adopted by CCI when employing a new surveyor. Mr Sultan was, he said, with him most of the time although at some stage he may have worked with other surveyors employed by CCI.
On the day in question they went to Hay Point from Mackay in his car on a trip which took about 45 minutes. Mr Sekander believed that they arrived at the berth for the MV Cleopatra Dream at about 7:00pm although it might have been later. Once they boarded the vessel they met the chief officer, Mr Noronha. He believes they left some of the equipment they needed to conduct the survey, a heeling tube or manometer, on the vessel’s deck and then proceeded towards the accommodation section with Mr Noronha. He believed that Mr Sultan was walking to his right and Mr Noronha to his left. They were walking towards the rear of the vessel when Mr Sekander noticed that Mr Sultan was not with him. He said he looked back and saw Mr Sultan straightening himself up and cleaning or rubbing his knees. He asked him whether he was alright and Mr Sultan said that he was OK. He said that there were, what he described as “extensions” on the deck into which stanchions could be placed for the rigging of a safety line. There were no stanchions in place at the time but the extensions into which they could be fitted were there. He said that Mr Sultan had told him to watch out for them as they were walking along and before Mr Sultan had any problems.
He did not believe that the deck was slippery and noticed nothing else unusual that he should be worried about. He did not recall Mr Sultan saying that it was slippery or that he slipped but believed that he said that he fell or tripped over. He did not think anymore about that at the time and Mr Sultan and he continued with their survey. He did not help Mr Sultan up. They left the ship together going back the same way as they had come. He could not recall Mr Sultan getting down or feeling the surface or saying anything about whether it was oily on their return journey. He identified the location of the incident involving Mr Sultan as near the aft end of hatch number eight but did not recall exactly where it was. There was a cross shown on one of the exhibits in the second part of Exhibit 1 and he believed that the incident he noticed involving Mr Sultan occurred further away from that cross which he placed as around the forward end of hatch number nine rather than the aft end of hatch number eight.
He circled two of the objects he described as protrusions on that exhibit and could not recall any association between the incident and the bollards or bitts shown elsewhere in that photograph. He did not believe that the posts holding up the hatch covers previously identified as stanchions by Mr Sultan were within his understanding of that word.
He ceased working for CCI in about 2004 and has since been self-employed. He attended the trial pursuant to a subpoena having previously told Mr Sultan that he was not sympathetic to his position, having doubts about his claim. He believed that he may have also said to Mr Sultan that he did not want to help the defendant either. It was suggested to him that the original version he gave about his observations of the event was influenced by loyalty to his employer but he denied that.
It seemed to me that he was doing his best to recall these events accurately and honestly. His recollection was that Mr Sultan told him that he fell down and he agreed that he assumed that he may have tripped on an extension but was never told at any stage by Mr Sultan that he slipped. He could not recall being tapped on the shoulder by Mr Sultan before his fall and denied turning and helping him to his feet. Nor could he recall Mr Noronha helping him up.
Captain Basu, the captain of the MV Cleopatra Dream, could not be contacted to give oral evidence at the trial but a statement prepared by him went into evidence as Exhibit 24. He said that Mr Noronha, the chief officer, had not brought any incident to his attention related to the claim by Mr Sultan. He also said that sand was sprayed on wet paint to make a non-skid surface once the paint dried and that the walkway did provide good grip under foot, better than the other parts of the deck even if there was water on the walkway. His statement was that there was no oil on the deck and that if the deck were wet it would have been because of passing showers.
That evidence was consistent with the evidence of Mr Noronha taken on commission before the trial. He could not recall anything happening while he was walking with Mr Sultan and Mr Sekander on board the vessel. He did not recall Mr Sultan slipping or falling or being told of any such incident. He said if some such incident had occurred he would have put it in the ship’s log book and informed the captain. The fact that there were surveyors onboard was not, however, referred to in the ship’s log. He said that the deck was not slippery and disagreed with the proposition that the ship was not in good condition or well run and that it had a constant recurring problem of oil leaks. He said that leaks when spotted were rectified immediately and there was continuous replacement of the seals of jacks of which there were something like 100 onboard. He said that if there were oil on the deck of the ship it would be removed immediately because one cannot have oil on deck especially in port for fear of sending the oil into the water.
Mr Singleton was another witness. He was the senior surveyor for CCI in Mackay who was informed by Mr Sekander that Mr Sultan had said that he had fallen on the Cleopatra Dream. He received Mr Sultan’s claim form in respect of his WorkCover claim around 22 March 2000 when he was pronounced unfit and was off work for a while. He gave him light duties and asked him to come into work in the office on a quality assurance project. He said that Mr Sultan asked if he could do it at home and he gave the relevant documents to him on a disk but did not get anything back from him. CCI then received a resignation letter from Mr Sultan by facsimile. He asked him to come into the office in the beginning of May but could not persuade him to come. He said that the employer, CCI, provided Mr Sultan with a choice of safety boots, either steel capped shoes or boots. He had never received a complaint himself about the walkways on the Cleopatra Dream.
He had also tried to verify Mr Sultan’s qualifications by ringing people in the United States of America but was unable to verify that he had the qualifications he claimed. Mr Sekander verified that Mr Sultan told him he had fallen but Mr Sekander also said to Mr Singleton that he had not seen it himself. Nonetheless Mr Singleton approved the WorkCover claim.
It was suggested to him that CCI sponsored surveyors for Australian citizenship as a justification for paying them less than normal but he denied that and said that the company employed surveyors who responded to their advertisements offering employment. He believed that Mr Sultan had attended the CCI office once when he was not there after the incident and returned the equipment that had been given to him by CCI with the exception of the disk with the quality assurance documents on it.
Plaintiff’s previous history
The plaintiff’s evidence was that he was educated in Pakistan to about the age of about 18 and then completed his education in the United States of America. In 1976 he commenced work as a deck officer for a Swiss maritime company with whom he stayed as an employee until 1986. The company’s name was Terra-Marine Ship Management and he said it operated from Switzerland and Pakistan. He lived in Hong Kong for about four years before he moved to Sydney.
He attained his United States master’s certificate in September 1983 including a master’s class 1 licence. He became an Australian citizen on 25 May 1984 having attended Sydney Technology College between 1983 and 1985 and was issued with an Australian master’s ticket on 31 January 1986. He was also issued with a certificate of competency as a master class 1 on 10 February 1986. That qualified him to act as the master of any Australian ship of all sizes. The only type of ship he was not qualified to be the master of was a ship transporting liquefied petroleum gas.
Between 1986 and 1990 he continued to work for Terra-Marine serving on various ships while living back in Pakistan. In 1990 he completed a specialised marine surveying program in the United States and was employed as an auditor/manager/marine surveyor for Terra-Marine. That employment lasted through 1980 to 1989 and during most of that period he lived in the United States.
On 5 October 1992 he became a certified member of the United States Surveyors’ Association which qualified him as a marine surveyor. On 30 October 1993 he attained accreditation as a marine surveyor and on 1 April 1995 was registered by the international register of certified auditors as a lead auditor.
In 1992 he experienced a click in his back after lifting a sack of potatoes for which he saw a chiropractor twice. During the year ended 30 June 1997 he said he was employed by a company known as Scanmarine Inc in Texas earning US$84,000.00 per annum including allowances. He was on the same salary for the year ending 30 June 1998. By then he and his wife had three children and in June 1999 he returned to reside in Australia having again earned US$84,000.00 for the year ended 30 June 1999 with Scanmarine Inc. It seems to have been some form of subsidiary of Terra-Marine.
He had very little documentation about his employment before coming to Australia. The only significant document was from Scanmarine Inc, a company no longer in existence. That document was a certificate that he had been paid wages of US$84,000.00 per annum for the three years before 15 June 1999 in the capacity of a ship’s master.[1] He had no tax returns and explained this by saying that he was a Pakistani resident for the purposes of the earning of income and that in Pakistan no income tax applied in respect of income earned in his capacity as a ship’s master. Nor did he have any documentary record of what he claimed was a long history of employment within the group of companies run from Pakistan and Switzerland called Terra-Marine Ship Management.
[1]Exhibit 2 part 6 doct 1.
From March 2000 to 2 May 2000 he was employed in Mackay as a marine surveyor by CCI with whom he earned a net salary of $7,594.00. He was employed by them at the date of the accident at Hay Point. He had taken employment with them even though the salary offered by them was only AUD$50,000.00 plus a car because he needed to obtain Australian coastal experience to qualify himself to work more generally within Australia. He could also have gone to Pakistan but was reluctant to do so, thinking it was better to bring up his children in Australia.
Plaintiff’s subsequent history
At the time of the accident he was between six weeks and two months into his service with CCI and remained working with them for a short time after taking two or three days off work. His injuries had not resolved and on 20 March 2000 he went to see a local general practitioner to seek treatment for them. His employer asked him to come to do light work but his injuries did not get better. His doctors told him to keep active but he said that he continued to have troubles with his knees, particularly his left knee and back ache for which he was treated by a chiropractor and a physiotherapist without much help to his symptoms. His shoulder healed well but his wrists remained sore for some time.
When he continued to have problems he said he contacted the Australian Maritime College in Tasmania with a view to obtaining employment there teaching candidates for masters’ certificates and certificates of competency in navigation. There was evidence that he had contacted the AMC about such work before he went to Mackay, applying in writing for a position as a lecturer by a letter dated 31 January 2000.
Shortly after the accident he ceased work at CCI but by then he had received a letter of appointment to the AMC of 24 March 2000 followed by a subsequent letter of appointment of 20 April 2000. It was suggested to him that he did not tell his employer or WorkCover of his obtaining employment at the AMC but he denied the assertion in cross-examination that he did not go back to CCI because he had obtained the job at the AMC.
There was much documentary evidence admitted about his performance as a lecturer at the AMC which reflected criticism of him. He took issue with much of the criticism directed towards him in his evidence before me. Nevertheless it seems clear that he and his superiors there did not see eye to eye and he resigned from that position in July 2002. There was confusion in respect of a number of documents disclosed by him relating to his employment before he was injured. He told Dr Ding that he was working in his own surveying business and, in another document he had said that he was working between 1991 and 1999 as a marine surveyor.[2] This seems to be inconsistent with his assertion from the Scanmarine Inc document to which I referred earlier that he had been engaged on that company’s vessels in the capacity of a ship’s master.
[2]Exhibit 11 p 7 para 3.
The income he earned from the AMC was comparable to what he would have earned at CCI. His wage at CCI was initially to be $50,000.00 per annum but that position also included the supply of a car. During the two years after the accident he earned more than $50,000.00 from the AMC.
He did not enjoy the work at the college and was not comfortable with the policies being applied at the college in educating their students. He also said he found the weather there difficult for his injuries and applied to become an assistant harbour master and pilot at Geraldton. He did not obtain that position and shortly afterwards had an operation, on 7 December 2000 on his left knee, an arthroscopy. His employment with the AMC extended over the period from 1 May 2000 to 19 July 2002. He also obtained employment with a number of other employers and obtained a “Dynamic Positioning Simulator Certificate” from a college in Aberdeen in Scotland on 25 October 2002 after a course lasting about five days.
On 14 September 2003 he underwent heart bypass surgery and later had surgery to his hand when working for a body called Total Marine Services. He says that his recovery from those operations has been good. He also had an operation in early September 2006 for nasal obstruction, which, again, he said, has not affected his ability to work. On 15 June 2004, however, he was certified not fit for duties by the Australian Maritime Safety Authority which meant that he could no longer go to sea.
He did not concede that his cardiac condition would prevent him from going to sea in any event and he had a medical certificate testifying to his having recovered well from that episode although the defendant pointed out that the certificate antedated the insertion of a stent in an artery near his heart and that he continued to consult the doctor who treated him for his heart condition. The defendant’s submission was that he was unlikely to be able to continue to hold down a position at sea with such a history.
On 13 December 2004 he received $32,000.00 from a claim against his employer and WorkCover for the statutory benefits available to him under that scheme. An amount of $12,286.27 was a refund of benefits he had previously received. The parties agreed that $18,468.58 should be deducted from any assessment of damages by me in this case against this defendant because of his receipt of the money from the first defendant’s statutory insurer.
Since he left the AMC he has worked with his brother through a number of entities, one described as Armada Quality Services, which he said is his own entity, Armada Maritime Services, which he said was his brother Kamran’s business but for which he did work as well, Baltic Control Australia and Aries Maritime Services, which he said was a business whose name had changed from Armada Maritime Services. He also said that he worked for a business called Stellar Maritime Services. The income he disclosed in respect of those entities did not match the income declared in his tax returns which he explained by the fact that he had a deal with his brother by which he would only be paid a percentage of the invoices he rendered.
He has also worked for a body known as Bureau Veritas for which he was able to provide quality assurance certificates but did not do marine work for them. He only did five audits for them in three years.
He said that he could not always perform the work for his brother as he was only suited to doing lighter work. He attempted to study for a law degree online through the Charles Darwin University, succeeded in his exams for the first year but found it difficult to continue because of concentration problems and money worries thereafter. He said that those concerns were made worse by the problems he had with his knee.
He now lives in Melbourne having lived in Adelaide for some time when his brother’s business was there. He expects that he will need to undergo further surgery for a knee replacement and believes that he has no prospect now of obtaining a new seafaring certificate.
The work that he does for his brother does require him sometimes to go into hulls of ships that may be ten metres in depth or more. He says that he can negotiate steel ladders on ships but finds it more difficult to come back up than to go down. He agreed that he could move up ladders without apparent difficulty but said that that depended on how much codeine he took before he worked. He said he had worked on perhaps 13 to 18 ships during the last few years. In negotiating ladders he said that he tried to keep his weight on his hands as much as possible and that he could rest on platforms going down into ship’s hulls which made it easier. He said that his left leg was much worse than his right and began to hurt earlier during such work.
There were some video clips taken of him working on a vessel known as the Hanjin Houston in March 2009. What is shown on those video clips is consistent with what his evidence was before he was cross-examined about his ability to work at present. It was not obviously consistent with what he told an occupational therapist, Ms Vanessa Aitken, in an assessment conducted by her on instructions from the defendant. Her initial view was that he scored 22.99 on a test which put him below the fifth percentile for his age and gender in respect of his knee. She translated that by saying that the results indicated that he had a significant level of functional incapacity in relation to his left knee and to a lesser degree his right knee. She changed that view after having seen the video evidence.
There were several examples shown of him at the base of hulls of large grain carriers such as the MV Caravos Horizon on 22 January 2007, which he recalled inspecting and admitted boarding by a ladder and a gangway and then descending probably 12 to 13 metres into the number one hull. He said he had inspected between about 13 and 14 grain ships in the previous three to four years. He could not remember particularly an inspection of a ship called the Far Eastern Mariner on 13 July 2008 at Port Adelaide but Mr Thomas was a witness who recalled seeing him there. Mr Thomas knew both Mr Sultan and his brother.
Mr Robert Woodfield was another witness who observed Mr Sultan on 28 March 2006 during an inspection of a vessel called the Double Rejoice. He was with him for two to three hours on the ship that day doing a grain hull cleanliness survey for the Australian Wheat Board (“AWB”). Mr Sultan and some inspectors from the Australian Quarantine and Immigration Service (“AQIS”) were also there. He observed Mr Sultan climbing up and down ladders in a normal manner and took some photos of him so that he would know who had inspected the vessel with him. He said that he found out later that Mr Sultan was auditing his survey for the AWB which made him unhappy because he thought that the AWB was looking to stop providing his company with work. He denied saying to Mr Sultan words to the effect of “we don’t need your kind here”.
Mr Sultan’s evidence about that was that he told Mr Woodfield that he was there for the AWB to do an audit and that Mr Woodfield told him that he did not need “your lot on our turf”. He also said that they disagreed about some aspects of the survey and at the end of the survey Mr Woodfield threw his card at him.
Mr Syed was another witness who knows Mr Sultan and attended a survey on the vessel known as Hanjin Houston on 26 March 2009. He took a number of videos during that survey, not in any attempt to record what Mr Sultan was doing but as an incident of the work he was doing himself. He said there were ladders 12 to 13 metres high in the hulls of that ship which he observed Mr Sultan negotiating without apparent difficulty. He said that one needed to be fit to climb up some brackets surrounding a pipe which he also observed Mr Sultan climbing. They were more difficult than ladders because the rungs were further apart than rungs on a normal ladder. One of the videos taken by him also depicted Mr Sultan squatting, looking into the bilge well. His role there was to conduct a bunker survey and to supervise the survey being conducted by Mr Sultan and he denied insisting to Mr Sultan that he pass the ship on the survey or any threat by him to throw Mr Sultan off the ship. On my observation of him there was no reason to regard him as a partial witness in favour of the defendant.
Jamie Thomas and Peter Bruce were experienced seamen who observed Mr Sultan working as a marine surveyor on two ships. Mr Thomas saw him on the Far Eastern Mariner on 13 July 2008 where it seems he must have climbed a rope ladder about eight metres in length to board the ship. Mr Thomas did not see him apparently suffering any pain or difficulty after he had inspected the holds of that bulk grain carrier.
Similarly Mr Bruce saw him on 22 January 2007 auditing the survey of the MV Caravos Horizon. They took a launch to the vessel and climbed aboard by a pilot ladder and an accommodation ladder and descended into the hull. He said that the depth of the hull was about 21 to 22 metres on that ship which was a Panamax size vessel. He did not observe Mr Sultan having any difficulty in climbing into or out of the access hull or onto the ship. It was suggested to him that he was upset by the fact that Mr Sultan was auditing the survey he was conducting with a Captain Hannaway, a trainee surveyor. Mr Bruce denied that and said convincingly that he did not even know that Mr Sultan had criticised Captain Hannaway as being unqualified. He pointed out that Captain Hannaway was on his tenth supervised survey on the path to becoming a qualified surveyor.
Mr Kamran Sultan, the plaintiff’s older brother, gave evidence that he was a marine surveyor as well as previously having been a master mariner around Australia and world wide. He said that a career consisting of six months work annually as a ship’s captain coupled with another six months casual survey work was a realistic prospect in the maritime industry. When his brother arrived in Canberra around 2000 before he worked in Mackay he said that he was fit and healthy, playing soccer with his children and other children from the neighbourhood.
He observed he appeared to be depressed and had difficulty in going up stairs when he came to live with his family in Adelaide after March 2000. He noted that his brother could not walk as vigorously as he and took the view that he was not fit for full time work in the industry. Nevertheless, he gave him as much work as he could of the less physically demanding type and said that sometimes he needed to help him to complete some jobs. He estimated that his brother had done 12 to 15 ships in the last few years where Kamran Sultan would do between 70 and 100 ships per year as a marine surveyor.
Medical evidence
Dr Morrison estimated the plaintiff’s disabilities from the claimed accident as 20 percent of the left leg and 15 percent of the right leg. He was unable to convert those estimates into Australian Medical Association table equivalents because the observations he made when he gave his reports up until 2004 were not framed in the same way as is now required by the Australian Medical Association disability calculations. He described a resection he performed on 27 January 2004 as a further cleavage tear of a type previously resected by a Dr Einoder in Tasmania which could also be related to the fall complained of by Mr Sultan.
After the operation, in forming his views about Mr Sultan’s disabilities, he was relying on his knowledge of the inside of Mr Sultan’s knee to conclude that he could not climb ladders or negotiate steps without the risk of re-injuring it. He was of the view that Mr Sultan was unable to negotiate ladders and steps safely even though he accepted that his difficulties would not be observable to the casual bystander. His concern was that if Mr Sultan were to climb ladders and steps many times his knee would become swollen and painful which led him to conclude that he would not be able to work in the industry safely because he would not pass the guidelines necessary for occupational health and safety regulations.
He had noticed some improvement in Mr Sultan’s right leg disability which caused him to reduce it from an estimate of 20 percent at one stage to 15 percent by 4 June 2004. He agreed that arthritic symptoms can vary and can be relatively quiescent for a period.
The plaintiff also referred to the surgery performed on him in Adelaide by Dr Morrison for the removal of some loose cartilage on 18 December 2003. He said his knee improved after that operation but later became worse again. He expects that he will have to undergo knee replacement surgery in the future.
Vanessa Aitken is an occupational therapist who reported on Mr Sultan on instructions from the defendant’s solicitors on 1 August 2008. Shortly before the trial she was shown the video of Mr Sultan’s activities on ships and compared them to the information he had provided her that he found it extremely difficult to go up the stairs at his house. She was particularly surprised to see him on one occasion on one of the videos climbing a framework inside a hold on one vessel where, at one point his left foot was at the height of his right thigh which was “close to full left knee flexion. He pushes up through the left leg, whilst, pulling himself up with the arms and appears to climb two more vertical steps, although this is not seen.”
She found that inconsistent compared with his reports that he found going up and down regular stairs extremely difficult. She conceded that she did not know whether he had taken pain relief before going to work on the occasion shown in the videos but believed that his behaviour was not likely to be associated with pain and gave an instance of seeing him in one position apparently weight bearing on his left leg which she thought was inconsistent with his reports that he had more pain in the left knee than in the right knee. Mr Sultan’s evidence about that issue was that he was actually weight bearing on his right leg at the time with his left leg flexed but it did seem to me to be a significant issue that his self-reporting to Ms Aitken seemed inconsistent with his observed behaviour on the videos, even taking into account the possibility of that behaviour being affected by his having taken pain relief. That was another issue relevant to his credit that made me doubt his version of events relating to the accident he claimed happened and to his subsequent work history.
Ms Aitken was willing to concede that people’s perceptions of injury can change over time and that people can have good and bad days dependent on whether they have taken medication. She knew that he was taking panadeine forte as required when she examined him but was not sure whether her note of that issue reflected any use by him of that pain relief drug when she examined him. It seems that she believed that he had not been taking pain relief on that day. She seemed to me to be a careful witness and one can readily understand her change of view in respect of Mr Sultan’s capacities after she had seen the videos. It is the case, however, that Dr Morrison’s view was that such behaviour was not inconsistent with Mr Sultan’s symptoms and that the problems that he might face would be more obvious if he were to work very regularly, thus exacerbating the condition of his knees that he observed.
Ms Aitken’s conclusion in her second report, Exhibit 22, in light of the evidence of the videos, was that there did not appear to be any physical or sensory impairment which would prevent him from performing his duties on a full time basis either as a marine surveyor or as a ship’s captain but that conclusion is inconsistent with Dr Morrison’s views and he is more appropriately qualified to assess issues of this nature.
There was also some evidence in reports from a number of other doctors which included those who had treated the plaintiff that was not made the subject of cross-examination. Mr Newton drew my attention to the report of Dr Lipert, the defendant’s orthopaedic surgeon, who assessed him as having suffered a 3 per cent whole person impairment in respect of the left knee under the AMA guidelines and a 5 per cent whole person impairment in respect of the back[3]. WorkCover had assessed 7 per cent impairment for the left knee.
[3]Exhibit 2, Tab 4, p.60.
Dr Morrison said that he had features of arthritic changes that may have started to bother the plaintiff in his 50s or 60s in any event.[4] Dr Einoder had resected the damage as did Dr Morrison at a later stage. Mr Newton argued that theoretically some or all of this type of damage might occur over one’s life in the absence of a particular traumatic event but on the balance of probabilities, the cascade of events started with the injury. That seems to me to be a reasonable submission.
[4]T 3-31 – 3-32.
Dr Morrison’s evidence was that the plaintiff was not fit for sea duty. In forming that view he relied on his observation of the knee during treatment and Mr Newton also drew my attention to his evidence where he did not say the plaintiff could not climb ladders but rather that he ought not or that he could not do it safely.[5] He accepted, however, that it would not be observable that he was having trouble walking up steps[6] and that symptoms in knees can wax and wane.[7]
[5]T 3-34, ll 51-53; T 3-35, ll 3-15.
[6]T 3-35, l 22.
[7]T 3-37, l 30-34.
Liability
Both parties submitted that this was a case where the duty of care was the general duty in negligence, where the question was what would a reasonable person have done to identify what would have avoided the injury.[8] Mr Newton for the plaintiff also submitted, however, that the relevant duty owed to a person entering a ship was high and akin to that owed to employees on the ship, by reference to s 11 and s 13 of the Occupational Health and Safety (Maritime Industry) Act 1993 (Cth). That duty was not pleaded, nor were several international conventions to which he drew my attention. They were admitted subject to the objection of counsel for the defendant as to their relevance. Mr Newton’s submission was that if the objection was maintained to the admissibility of those documents, the convention documents were only relied upon by him as outlining duties which the evidence supported. As will appear from my assessment of the evidence it is my view that the case does not turn on the terms of the Occupational Health and Safety (Maritime Industry) Act or on the language of the international conventions.
[8]See New South Wales v Fahy [2007] HCA 20; (2007) 81 ALJR 1021 at [57].
The defendant’s safety and quality management manual specified that the “pilot boarding area” must be kept free from obstructions and painted with anti-skid paint using contrasting colour. The plaintiff’s argument included the submission that the path from the accommodation ladder, which would also have been used by a pilot boarding the ship, to the accommodation area was part of the pilot boarding area. More importantly, he argued that such pathways should all have been finished with an anti-slip paint or surface.
Counsel for the defendant submitted that, if a fall occurred, it was most likely to have been the fall the plaintiff first described to a Dr Minh Le, namely a fall onto his hands and knees, which is consistent with the observations made by Mr Sekander. They went on to submit that the plaintiff may well have sustained a meniscal tear in the left knee in such a fall, if it is true that he had not experienced his problems earlier. Such a fall is not that attested to by the plaintiff in evidence, however, and is not the fall described in the Statement of Claim. It is also a fall much less consistent with a slip than other versions given by him.
Counsel submitted that the plaintiff was a person given to manipulation and variation of facts and that in the course of trying to show that he was seriously injured he had invented features such as his landing on his posterior, sliding on the deck, his left knee, (sometimes both knees) sliding into a bitt or a bollard, and “crashing heavily”.
They argued that the plaintiff’s assertion to a Dr Brown that he crashed heavily was the statement that most clearly illustrated the correctness of their submission as two persons who were walking slightly ahead of another person on the deck of a ship could not fail to notice the third person “crash heavily” on the deck. They also submitted that the plaintiff invented his story about slipping because, if he simply tripped on an obvious part of the ship’s equipment, he would be less likely to recover common law damages.
In that context they pointed to a number of other issues relating to the evidence affecting the plaintiff’s credibility generally. They included submissions that his account of his disabilities to Ms Aitken and others was inconsistent with what was shown on the video and photographic evidence and the evidence of others observing his performance since the accident. There is some merit in that submission but the explanations offered by the plaintiff for his ability to work in the manner shown for relatively short periods, especially when he had taken pain relief, would make me cautious in accepting that he was lying about his existing abilities, especially taking into account the medical evidence to which I have already referred, particularly from Dr Morrison.
Counsel for the defendant also argued that the plaintiff’s account of his relationship with the AMC was:[9]
“seriously contradicted by the content of the correspondence between himself and the College. That correspondence does not in any way support the plaintiff’s contention that the reason for the conflict at the College was that he made proposals for change at the College that were unacceptable to the College. The correspondence shows that the issue was the plaintiff’s performance, not that of the College. The conflict with the College appears to be an example of conflict which the balance of the evidence demonstrates is commonplace in the plaintiff’s relationship with employers.”
[9]Defence written submissions para 3.3.
It is true that the correspondence does suggest that the issue from the AMC’s point of view was the plaintiff’s performance in his role but there was no evidence called from the college staff on that essentially collateral issue and, again, I would be reluctant to draw too strong a conclusion about the plaintiff’s credibility simply from the nature of that correspondence. There was an issue reflecting on his credit relating to the timing of his application to the AMC, however, that was significant also for his claimed economic loss. He had given evidence that he applied for the position of lecturer at the AMC because of the injuries he sustained in the accident when he had actually applied before the accident.
Other points argued for the defendant were that the plaintiff had recently invented the allegation that he felt the surface of the walkway on the way off the ship and that he had created the impression that he had obtained a degree in political science when he had not.
The main matters that concern me are, however, the inconsistency of the plaintiff’s evidence with that of Mr Sekander and Mr Noronha. Mr Sekander had no particular axe to grind and gave consistent evidence that was similar to his earlier records of what had happened at the time. Mr Noronha’s evidence was consistent with Mr Sekander’s evidence and inconsistent with the plaintiff’s version, very little of which was put to Mr Noronha when he was cross-examined when he gave evidence on commission. He could recall nothing out of the ordinary happening.
In the circumstances, the variations in the plaintiff’s versions of the incident and the inconsistencies between his evidence and that of the other witnesses whom I accept, particularly Mr Sekander and Mr Noronha, have caused me to conclude that I am not satisfied that the plaintiff has established on the balance of probabilities that he slipped on the ship’s deck. It seems much more likely to me that he tripped in far less dramatic circumstances than he now claims. That is not the case he pleaded.
Even on his pleaded case there is no evidence on which I feel able to rely that would permit me to conclude that the surface of the ship was slippery or affected by oil on the occasion of the fall complained of by the plaintiff or that the defendant should have been aware of such a possibility. The defendant submitted,[10] in terms with which I agree that there was no satisfactory evidence that the surface of the walkway was not a non-skid surface. Mr Noronha said that the paint in question was Alkyd and was non-skid. The effect of his evidence was that all paint on the ship was by its nature, slip resistant, not just the paint on walkways. His evidence was also that if one wished to make it a little more resistant then one could add some sand which would tend to make it more anti-skid than otherwise.
[10]Defendant’s written submissions paras 4.4-4.16.
They pointed to Captain Basu’s similar evidence and the fact that Mr Sekander did not see any problem with the surface and submitted that the ultimate issue was whether the walkway was an unsafe walkway in all the circumstances and that the evidence as a whole showed that the walkway was appropriate. They also argued that the plaintiff’s case against the defendant in respect of the alleged lack of a non-slip surface was weakened by the plaintiff’s introduction of the contention that there was a particularly slippery substance, possibly oil, on the surface. If there was such a slippery substance on the surface, they submitted that it would have made no difference whether the walkway was treated with a “non-skid” surface or not.
They then argued that the evidence does not enable a finding to be made that there was a substance such as oil on the surface. If it did, they said, the plaintiff’s claim would fail on the basis that there was no evidence to support a finding that the defendant knew or ought to have known of the presence of the substance on the floor at the point where the plaintiff allegedly slipped. Nor was there sufficient evidence to support a finding that the defendant ought, from previous experience, to have put in operation a more effective system of cleaning the floor in the area where the fall occurred than Noronha described. There was no evidence that the defendant ought to have realized that there was a problem with oil or some other slippery substance at that location, whether at that time or generally.
In this respect, they submitted, it was important to note that the floor in question was not a floor in a shopping centre or a supermarket. It was not a floor over which numerous pedestrians would travel with varying forms of footwear. It was a floor which marine personnel with appropriate footwear and used to proceeding over the boat, would traverse. In the present case, their argument continued, if there was oil or a similar substance on the walkway which caused the plaintiff to fall, there was no evidence that the defendant knew or ought to have known of the presence of the substance at that time and at that particular place, or that the defendant ought from previous experience to have put in operation a more efficient system of cleaning the floor in the area where the fall occurred.[11]
[11]Relying on the Full Court decision in Griffin v. Coles Myer Ltd [1992] 2 Qd R 478.
In any event, they submitted, the ship had a planned maintenance system, about which Mr Noronha gave evidence[12]. He inspected the complete ship on a daily basis. This was additional to other procedures, including the complete cleaning of the ship prior to its entry into port.
[12]Exhibit 1 pp 5-6.
Additionally they argued that the plaintiff had not proved the state of the area on which he claimed to have slipped, leaving the court to speculate as to whether, if indeed he did slip, he slipped because of some non-skid deficiency in the floor, or on the other hand, he slipped on some slippery substance which had been allowed to accumulate on the walkway. On that basis, they argued that the plaintiff’s case failed simply because of lack of proof as to what brought about the fall.
The argument to the contrary for the plaintiff was that there were three possible explanations for the slipperiness of the deck alleged by him.[13] They were that the paint on the walkway was not non-slip, that, if it was, it was worn and required replacement, and the possibility, apart from it being damp at the time, that it may have had oil spilled from the nearby number 8 or 9 hatch or equivalent or detergent from cleaning before entering port, that is, some form of contaminant. The problem with those submissions was that they were not supported by the evidence I accept and were based to a large extent on speculation.
[13]Plaintiff’s written submissions p 9.
Mr Newton submitted that, while Mr Noronha tried to suggest that the ship was well maintained and that the number of jack repairs was part of a standard maintenance program, I should accept, in reliance on the plaintiff’s evidence, that it was not a well maintained ship, that there were a lot of leakages and that probably the whole hydraulic system needed attention. He also pointed to the absence of particular non-slip paint in the paint inventory on his client’s observation of that document.
I have difficulty in discerning, however, how that establishes, contrary to the evidence of the witnesses I accept, that there was no non-slip paint on the surface where the fall occurred or that there was a slippery substance at that position. I also have difficulty accepting the plaintiff’s evidence that he identified some slippery substance on that spot on his way off the ship, contrary to the evidence of Mr Sekander. Even if I had accepted that the plaintiff did slip, therefore, I do not believe that he has shown that the slip occurred because of the defendant’s negligence.
In the circumstances the plaintiff has failed to prove his case and his action must be dismissed. I shall, however, proceed to assess the damages I would otherwise have awarded.
Assessment of damages
I have already referred to the absence of documentary evidence of the plaintiff’s earlier career and the doubt as to whether he had been employed as a ship’s master during the 1990s or whether he was then only a marine surveyor. His heart condition which involved bypass surgery and the insertion of a stent in 2006 and the regular consultations with a cardiologist he now requires were submitted convincingly by the defendant to render him highly unsuitable for work as a ship’s master. The likelihood, they submitted, was that, if this accident had not happened, he would have sought work at the AMC in any event and that his career would otherwise have unfolded much as it has otherwise. There is some strength in that submission but the plaintiff has suffered a disability from the fall which required surgery and that has affected his earning capacity to some extent.
Mr Newton submitted that there was no doubt the physical injury had grossly restricted his capacity to work as a marine surveyor and in the maritime industry and that he was not now medically fit to hold a seagoing medical clearance which he failed on 9 June 2004 with Dr Morrison saying that he would not be safe on steep companionways particularly if the weather was bad.[14] His heart surgery in September 2003 and his later treatment were the subject of reports by Dr Button, a cardiologist, who said in his report of 10 February 2004 that the plaintiff was then safe to resume as a ship’s master. The subsequent surgery he had to insert a stent in October 2006 and the nature of life as a ship’s master and his need to consult a cardiologist regularly suggest to me, however, that his heart condition would have militated strongly against him going back to sea as a ship’s master in any event.
[14]Exhibit 2, Tab 4, p 53.
The other real problem in assessing the plaintiff’s damages stems from the doubts I have about his credibility generally and in relation to his previous work history, including the absence of a reliable documentary record of what he earned and what positions he held. He was also a person whose work history at AMC and perhaps elsewhere suggested that he too readily took offence at or imputed wrong motives to his fellow employees and may have had difficulty holding down a regular position in an organisation.
There was evidence of an approach to the calculation of his economic loss in Exhibits 5 and 6 but I am unable to make an estimate with any real precision of the extent of his economic loss using such an approach. His work at AMC was at a roughly comparable rate to that paid to him by his employer at the time of the accident, the first defendant. He was off work from time to time since the accident because of other medical conditions. He has done some casual surveying work for firms associated with his brother which has earned him relatively modest amounts over recent years. It seems likely that he would have been able to perform more of such work, if enough had been available, had he not suffered the fall and if he had not been affected by the degenerative changes that may have commenced to affect him in any event or by his heart problems.
The photographic evidence shows that he appears to perform his work now without obvious difficulty but Dr Morrison’s evidence is persuasive that he would not be able to perform such work at a high level of intensity. The plaintiff’s brother gave evidence of the number of surveys he performed each year compared with those performed by his brother and there was a significant difference. In the circumstances I believe that there is a reasonable argument that he suffered some relatively significant economic loss but I can only assess the amount in a global sum.
I am not persuaded that his injuries caused a dramatic difference in his quality of daily life. I accept, however, that he is now less mobile and suffers more pain than would otherwise have been the case and probably has a greater need for pain relief in spite of the modest amount he has claimed for its cost. He will also need future surgery and occupational rehabilitation.
Doing the best I can in the circumstances, my assessment of his damages had I found in his favour on the question of liability would have been:
General damages $40,000.00 Interest on $20,000 at 2 per cent for 10.2 years $4,080.00 Out of pocket special damages (ex 4) $1,763.35 Interest for 10.2 years at 5 per cent $899.31 HIC refund (19 November 2003) $2,187.85 Additional HIC (estimate) $2,500.00 Past care – 290.17 hrs at $18 per hour $5,223.00 Interest thereon for 10.2 years at 5 per cent $2,663.76 Future surgery $20,000.00 Future care (global) $10,000.00 Future pharmaceuticals (ex 6) $2,798.27 Future occupational rehabilitation
(see ex 2, Tab 4, p. 40 of 41 in Ms Aitken’s report)$6,140.00 Past economic loss (global) $250,000.00 Interest thereon for 10.2 years at 5 per cent $127,500.00 Superannuation (two thirds of past economic loss at 9 per cent) $15,075.00 Future economic loss (global) $150,000.00 Superannuation on two thirds thereof at 9 per cent $9,000.00 Assessment $649,830.54 Less Workcover settlement (clear of WorkCover refunds of $12,286.27) $18,468.58
Total assessment $631,361.96
Because of my findings as to liability, however, there should be judgment for the defendant. I shall hear submissions as to costs.
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