Sutherland v Breakwater Island Limited t'as Sheraton Breakwater Casino Hotel

[2001] NSWSC 521

CITATION:	Sutherland v Breakwater Island Limited t'as Sheraton Breakwater Casino Hotel [2001] NSWSC 521
CURRENT JURISDICTION:	Civil
FILE NUMBER(S):	SC 11929/93
HEARING DATE(S):	18 - 21 June 2001
JUDGMENT DATE:	26 June 2001
PARTIES :	Dyon Michael Sutherland (Plt) Breakwater Island Limited t/as Sheraton Breakwater Casino Hotel (Def)
JUDGMENT OF:	McClellan J

COUNSEL :	J Jobson (Plt) C I Twomey (Def)
SOLICITORS:	David Cass (Plt) Boyd House & Partners (Def)
CATCHWORDS:	NEGLIGENCE - personal injury - duty of care - whether design of urinal satisfactory - damages - post head injury syndrome
DECISION:	See para 87

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVSION

McCLELLAN J

TUESDAY, 26 JUNE 2001

11292/93 - SUTHERLAND v BREAKWATER ISLAND LIMITED t/as SHERATON BREAKWATER CASINO-HOTEL.

JUDGMENT

1    HIS HONOUR: In 1987 the plaintiff was a farmer living at Young where he managed the family property known as "Ferndale". It comprised approximately 710 hectares and consisted of a typical mixed farming enterprise involving sheep and cattle, lucerne growing and wheat production. The plaintiff is tall, approximately 192 cm in height.

2    The plaintiff was active in Apex and had become the local district governor - a position of some importance. The Apex movement decided to have a convention at the defendant's premises at the Sheraton Breakwater Casino hotel in Townsville and the plaintiff decided to attend. He arrived at the hotel on the afternoon of 14 April 1987 having spent the previous day with his sister, who was also involved in the farming enterprise, at the Royal Easter Show in Sydney. He travelled by plane, changing at Brisbane and flying on to Townsville. He said he consumed only a modest amount of alcohol on the flight.

3    The plaintiff gave evidence that after settling into his room he met with his friends in the bar. He said he was on his second drink when he left his friends to go to the toilet. He said, in his evidence, that on going to the toilet he stepped up onto the urinal, the step being rather steep, and the next he remembered is being back at the table with his friends. He said he had a headache and explained to people that he had hit his head. He said he presumed he hit his head on the pelmetted light fitting above the urinal.

4    The plaintiff said that later that evening he walked with his friends 3 kilometres into the main part of Townsville where they had a meal at a restaurant walking back to the hotel later that evening. He said he had retired to bed when a security guard or house detective woke him and he made a statement.

5    He said that after hitting his head he had a headache and was "a little bit gaga." He could not speak properly, could not walk properly and had problems communicating. He said he believed he had concussion and was not well. He continued on at the conference but said his behaviour became erratic. He slept in in the morning, missed buses to other venues, and fell asleep at board meetings. He said he could not walk any distance and had a few problems. He said his head hurt throughout the rest of the conference.

6    The plaintiff gave evidence that on returning from the conference he had a dreadful flight from Sydney to Young because it was an unpressurised aeroplane. He said his head felt like he was going to explode. He said that on alighting from the plane in Young he felt sick and weak and stumbled to the ground.

7    The plaintiff arrived back in Young on 21 April 1987. The following day he consulted his local doctor, Dr Purchas. He said by that time he had a headache which he still has today. He said his vision was poor and he was not particularly coherent. He said the headache was there all the time. I shall refer to Dr Purchas' clinical notes later.

8    In May 1987, as the plaintiff was still having problems, Dr Purchas sent him for a brain scan. He was at first, referred to Dr Newcombe, a neurosurgeon, who diagnosed a subarachnoid cyst which was ultimately treated by admission to hospital and the cyst drained. It appears that the cyst was a condition which the plaintiff has probably had since birth and is unrelated to the accident. After the cyst was removed his symptoms did not diminish. It is not suggested that the cyst contributed to any identified problems of the plaintiff.

9    The plaintiff said that although he continued to work on the farm, he did so with difficulty. He said he made mistakes in the handling of sheep and was unable to effectively organise the cropping and other activities. He said he had difficulty driving and was unable to identify other vehicles in his peripheral vision, a problem which continues today. He said that he now has continual headaches, weariness, nausea and poor stamina.

10    The plaintiff continued to work on the property, but the property declined, and with increasing debt, became uneconomic. The property was finally sold in 1996, with significant monies owed to a bank. The plaintiff was declared bankrupt in 1998 because of a debt to the Australian Taxation Office and the significant monies he owed to a bank.

11    The plaintiff complains that apart from the physical symptoms, the pace of his life has slowed considerably and he is unable to work full time as a farm assistant or manager. He, on most week days, goes to his sister's property (which is the residue of the original family holding) and assists by doing odd jobs. He also does some domestic work at his home which includes gardening and similar light activity.

12    When cross-examined, the plaintiff was asked about his alcohol consumption prior to the accident. He denied that he had been a heavy consumer of alcohol, or that he was drinking to excess, before the accident. He denied that he had continued to drink after the accident. He said that he did not drink for five years immediately after the accident, and that he now drinks small quantities from time to time.

13    In his evidence in chief, the plaintiff said that he remembered standing on the urinal step and then returning to the table, but that he could not recall anything between these events. When cross-examined, the plaintiff said he could remember hitting his head, although he did not know whether he was knocked out. He said he could not recollect falling to his knees but when asked about the history which he gave to Dr Newcombe, including an account of falling to his knees, he said he just presumed that this is what happened. He later said "he remembers being on his knees" and "he knows he was on his knees."

14    The plaintiff stated that his recollection of the events had been assisted by the fact that two years ago he had met with a person, by the name of Mr Cole, who, along with two others, had assisted him in the toilet. He said that they had picked him up, having found him on his knees.

15    He was asked whether there was any mark from the impact on his forehead. He said he did not know, saying that he could not see correctly at the time. When asked the question:

"Q. Was there a mark on your forehead or not?

16    He replied:

A. I could not tell you. I can't remember."

17    Although suffering the injury and disabilities which the plaintiff related, he did not seek medical attention. He said that he returned to his companions but cannot remember whether he continued drinking or not. He said he would have had more drinks but cannot remember when that took place.

18    No witness was called who gave evidence of seeing the plaintiff hit his head. Apart from Mr Cole, no one was called who could have given an account of the plaintiff's behaviour during the convention.

19    Mr Cole, who also attended the Apex convention, stated that he had not previously known the plaintiff but came across him in the toilet, lying across the step to the urinal. He said he picked the plaintiff up and assisted him to wash, handing him towels to dry himself. He said that he assisted the plaintiff from the urinal, with the plaintiff physically leaning upon him.

20    Mr Cole was not a friend of the plaintiff's and did not continue to care for him. However, later that evening he saw the plaintiff being escorted from the casino, apparently because he had been behaving offensively at the tables. He also saw him at the convention dinner where he observed him to be unsteady, knocking over tables laden with food. He said that after the convention he had heard that the plaintiff had died. He only realised this was not correct when he was visiting Young in 1999 and came across the plaintiff in the street. They apparently had a discussion. The plaintiff said that as a result of this discussion he was better informed as to the events which took place in the toilet.

21    The plaintiff gave evidence about the farm and its financial return. Although evidence was available from the plaintiff's taxation returns between the years 1982 and 1993, for a reason which was not adequately explained, the financial documents of R H Sutherland Pty Limited, the holding company of the farm, were not available for the years between 1988 and 1993. The documents reveal a modest operating profit in 1988, the property having previously suffered operating losses. The operating losses returned in 1993 and continued. During all of these years the plaintiff's taxable returns show that he had a taxable income which I infer was below the level at which income tax would have been payable.

22    The plaintiff was cross-examined in relation to his evidence that he did not recall what had happened after he stepped up to the urinal. It was suggested to him that this was inconsistent with the history he had given to various doctors, which included a recollection of the events of hitting his head and falling to his knees. He responded by saying that it must have come back to him somewhere along the line. He said that although he probably did fall down to his knees, he does not remember doing so clearly. He said in evidence:

"Q. And some time later did you have the recollection of falling into the trough?
A. No, I don't know. I was there. I was in it. I was on it. I just can't remember being - I was on the floor.
Q. If you can't remember why did you tell some doctors that you fell into the urinal?
A. That's --
OBJECTION. Only Dr Lord.
Q. Do you recollect telling Dr Lord that you remember lying in the urine trough?
A. I presume I do. That's --
Q. What do you mean?
A. I remember telling Dr Lord but only telling what I presume I remember. I was knocked out I think at the time so it's a bit hard to -
Q. That was your recollection at the time, was it, that you were lying in the urine trough?
A. Yes
Q. So in June of 1998 that was your recollection?
A. '98?
Q. Yes.
A. Yes.
Q. And it was your recollection in 1988, was it, of falling to your knees?
A. Well, that's what - the same area, it's the same trough, same area.
Q. There's a big difference between falling to your knees and lying in the trough, isn't there?
A. Not much.
Q. Isn't there?
A. Not much. You are on the border line, aren't you, with both? I could have been waking up, coming to and I was up on my knees, I don't know.
Q. Well, I don't know, Mr Sutherland, because you remember seeing a Dr Ernest Sommerville on behalf of the defendant?
A. Yes, yeah. I presume so, yes.
Q. Well, you say him on 30 August 1995?
A. Yes, I've seen a lot of doctors, sir.
Q. And you saw Dr Ernest Sommerville and I suggest you told him that you awoke in the urinal?
A. We just said that, didn't we?
Q. Well, this is a fair bit earlier history in August 1995?
A. That's what I presumed happened. I was in the urinal."

23    The plaintiff was also challenged in relation to the account of events which he gave to doctors at Woden Valley hospital. The hospital records note that he indicated during his interview that he did not lose consciousness following the incident. He was asked the following question:

"Q. If you provided the authorities at the Woden Valley hospital with that version of not losing consciousness following this incident how would you explain it?
A. I don't know. I just told the man the wrong thing. I didn't think it was that important at the time. It's - and then I discovered since. I was not with it at the time when it all happened. Sure enough I might have been coming to in the urinal on my knees. I can't remember."

24    The plaintiff was asked whereabouts on his head he was hit. He said:

"A. Across the front. Just straight across the front.
Q. You mean on your forehead?
A. Yeah, my forehead. I had a bit more hair in those days.
Q. Were you hit above the hairline or below?
A. Way on the hairline it would have been.
Q. Sorry?
A. Way on the hairline.
Q. Below the hairline?
A. Way on it, just high forehead across there.
Q. But below the hairline or above it?
A. On it, in it I suppose. You would call it in it, across the front.
Q. Did you get any lump or anything?
A. Any?
Q. Lump?
A. I can't remember, your Honour. I can't remember.
Q. What about the next day?
A. I still cannot remember. I was concussed. I cannot remember having any lump."

25    The plaintiff also gave evidence that on that evening the security guards in the hotel escorted him from the premises. He said this occurred following the incident, although this is contrary to the evidence of Mr Cole. I accept Mr Cole's evidence in this respect. The plaintiff was escorted from the premises because of his behaviour in the gaming room and not because of anything which happened in the toilet.

26    The plaintiff said that he reported the incident to a security officer who made a written record. The defendant produced a security report which was made at about 11.30 pm that evening. This would place the report after the time at which the plaintiff had been removed from the gaming room. The report records that the plaintiff complained of an incident in the toilet between 4.30 and 5.00 pm that afternoon. The nature of the injury is said to be to the head and treatment was not required. The form records the plaintiff's comment that "the light box is too low" and "is surprised we have not had more incidents." Apparently the plaintiff stated that he "did not expect to find such a case of bad design in a five star hotel." The plaintiff said he had a headache as a result of the incident for about half an hour.

27    There is also a handwritten report from the security officer who went to the plaintiff's room just after midnight that evening. That report says that the security entered the plaintiff's room where he found him dressed only in his underwear and noticed that his belongings were spread over the bed. The security officer looked at the plaintiff's forehead recording that there was no sign of any injury.

28    The plaintiff said that he had retired to bed by the time the security called to his room. I do not accept this evidence. The record clearly reveals that the plaintiff was disturbed when his light was on and before he had retired to bed for the night. I am satisfied that the report which he made of the incident in the urinal followed the difficulties he had in the gaming room, which was the reason security removed him from the tables.

29    The plaintiff gave evidence that for the next, and following days at the convention, he was concussed. He said he does not remember having a lump on his head.

30    Evidence was given by the plaintiff's sister, Mrs Slavin. She said that she was not aware of the plaintiff having a drinking problem and that for a time she used to travel with him every day to work. She said that before the accident the plaintiff was a lively person, but that this had changed after the trip to Townsville. She said she saw her brother when he arrived home from Townsville and noticed that he looked lethargic and different. She was told that he had had an accident at the Breakwater Hotel and he complained of headaches and general dizziness. His hours on the property became less and he was unable to attend as diligently to the necessary tasks as he did prior to the accident. He said that the returns from the property deteriorated because of her brother's disabilities.

31    Mrs Slavin said that after the accident she observed that the plaintiff did not drink for a period of time although he then recommenced drinking. Although he now performed tasks for her at her property these were only light duties. She indicated that the plaintiff was not able to work for extended periods of time, or carry out heavy or complicated tasks.

32    Evidence was also given by Ms Coral Phillips. Ms Phillips has been the de facto wife of the plaintiff, although the relationship has been difficult at times. She first met the plaintiff in the early 1980s and became his partner in 1987, at about the time of the incident in Townsville. However, they were not living together at that time, and she was not with him on the trip. She said the plaintiff was a moderate drinker.

33    Ms Phillips said that during the convention she received phone calls from the plaintiff. On the night of the incident she said she received a phone call in which the plaintiff said: "I have had an accident. I have hurt my head and I have got an enormous headache."

34    She said this occurred during the course of the evening and he stated that he had "gone to the loo, went to step up and hit his head on a beam."

35    She said that the plaintiff's conversation was disjointed, although he had not previously had a problem conversing. She said "he began to talk about one thing one minute and something else the next and then back to the headache and things like that." She said the plaintiff continued to complain in his phone calls about having a headache and not feeling well.

36    Ms Phillips met the plaintiff on his return to Young. She said his speech was not good and he complained that he had a headache. He said it was an enormous headache.

37    Ms Phillips said their relationship continued until a period, in 1999, when they separated for about six to eight months. They now live under the same roof, although their relationship has not continued as it was previously. The plaintiff is now living in the house and paying rent. Ms Phillips said: "There isn't a de facto relationship, as such."

38    Ms Phillips said that to her knowledge the plaintiff gave up drinking alcohol for about five or six years after the accident.

39    A number of doctors have both examined and treated the plaintiff. Some of the reports by doctors who have examined him at the request of the plaintiff were tendered by the defendant in the proceedings.

40    It is not necessary for me to refer to all of the doctors although some are of particular significance.

41    The first general practitioner consulted by the plaintiff was Dr Purchas. His original hand written notes have been retrieved and were tendered. They record that the plaintiff consulted Dr Purchas in March 1987 for a continuous paraesthesia from head to toes which had persisted for a week or more. The doctor having noted the symptoms, recorded the fact that the plaintiff "has recently broken up with Chris", a reference to a relationship with a previous girlfriend, and that his mother had died four days ago. The evidence discloses that his mother died from Alzheimers disease at the relatively young age of sixty-two. It is apparent that Dr Purchas believed both these events were significant factors in the symptoms which the plaintiff reported. The doctor also noted "C2H5OH in excess" being a reference to the consumption of excessive alcohol. The plaintiff's blood pressure was noted as "170/100."

42    Evidence has been given that the condition of paraesthesia is associated with a stress reaction in a patient. Apparently under a considerable stress a person will breathe excessively causing the tingling sensation.

43    The plaintiff consulted Dr Purchas again on 22 April 1987. He reported that eight days prior he had had a head injury without a loss of consciousness in the Townsville hotel. The doctor recorded that he had fallen to his knees. The doctor also noted "constant headache relieved by alcohol. Difficulty speaking, writing." The doctor continued "obvious alcohol, suffused conjunctivae, blood pressure 170/120, pupils small, equal and reacting."

44    The doctor also noted that upon examination the edge of the plaintiff's liver was palpable. Evidence was given that this means that the doctor diagnosed excessive consumption of alcohol over a lengthy period of time.

45    It was Dr Purchas who referred the plaintiff to Dr Newcombe, which led to the diagnosis of the subarachnoid cyst and the operation to drain it.

46    The plaintiff attended Royal Canberra hospital in September 1987. He was assessed at the hospital and a history was taken. The record discloses that he indicated he had persistent headaches with paraesthesia all over his body. It is recorded that he did not indicate any speech disturbance. He apparently reported that he suffered concussion after striking his head on an overhanging light, followed by apparently odd behaviour and slurred speech for one or two weeks.

47    He was asked about his alcohol consumption. The interviewing medical officer recorded "heavy alcohol, forty middies per week (has cut down to this because of headaches.)" On the following page alcohol consumption is recorded as being "greater than 50-70 grams/d."

48    The plaintiff was also examined at St Vincent's hospital in October 1988. He related that he had hit his head on an overhanging light and was knocked to the ground. He said that after hitting his head he next remembered walking out of the toilet and talking to a security guard, and that he then went to a bar. He said that it was a big effort for him to walk that evening, and that he was tending to walk slightly sidewards. He told the medical officer that he went to bed early and for the rest of the week felt tired, with difficulty reading, was restless and it was difficult to sit in the conference. He said he was irritable, almost having a fight with the security guards in the casino.

49    He was asked by the examining doctor about alcohol and he said he was intolerant to alcohol which gave him a headache. He said that before the accident he drank four to five schooners per day or socially, fifteen to twenty middies in a night. His response to his present drinking habits was: "Nil. Light wine every few days."

50    The plaintiff was seen by Dr Danta in October 1989. The doctor records that although the plaintiff had no headache before his head injury he has since suffered constant pain which he likens to a pressure sensation. The doctor records that the headaches were severe for about two months but then improved. He related that the headaches continued, increasing with physical activity, and that he now could only do about twenty-five percent of his work. He said that his headaches were exacerbated by alcohol, and that he had given up drinking that substance.

51    The plaintiff was examined at Woden Valley hospital in 1993. On that occasion the record was taken that he consumed 10 grams of alcohol per day and had cut down on his former intake.

52    The plaintiff was also seen by a clinical psychologist, Greta Goldberg. She reported that in 1995 the plaintiff had said that after the incident "he suffered nausea, irritability and continuous headaches that he relieved by drinking a lot."

53    The plaintiff was a generally unsatisfactory witness and his accounts of relevant events were often contradictory. However, he had no difficulty understanding questions and communicating his answers.

54    Having regard to the consistent record of alcohol consumption, sometimes at a high level, I cannot accept the plaintiff's evidence that he was not a significant drinker either before the incident in Townsville or thereafter. The record of his general practitioner and the accounts he has given to some of the hospital medical officers and other doctors, leads me to conclude that he has, at least at times, consumed considerable amounts of alcohol. Although his alcohol consumption may not have been obvious to his sister and his de facto wife, I am satisfied that it occurred. I have no doubt that alcohol consumption has played a large part in the plaintiff's behaviour and deteriorating physical and mental condition.

55    The plaintiff gives varying accounts of the events on the evening of 14 April 1987. On occasions he indicates that he has no recollection of what occurred in the toilet beyond stepping up onto the urinal. On other occasions he says he remembers being on the floor or lying in the urinal. He says on some occasions that he did not lose consciousness, although on other occasions he said he was unconsciousness and suffered concussion.

56    The plaintiff reported to the security officer that he suffered a headache for half an hour, although to others he reports a continuing headache which was at times intense. I have concluded that the plaintiff's evidence cannot be relied upon.

57    However, I accept the evidence of Mr Cole. Apart from his evidence of finding the plaintiff on the floor, he also gave evidence of having observed the relationship between the urinal and the light pelmet immediately above it. He said that when you "walked up onto the step, you had to take great care, be careful, that you didn't hit the thing across … ."

58    He also said that it was dark and you had to be very careful when you got up to the urinal "because of the beam at the top of the urinal."

59    Although Mr Cole did not see the plaintiff strike his head on the pelmet, I am satisfied that this occurred. It is clear that the relationship between the step of the urinal and the pelmet was such that a tall person was at risk of striking his head unless exercising care. This arrangement was unacceptable in the urinal of a major hotel and casino. Provided the plaintiff suffered damage, I am satisfied he is entitled to a verdict for the failure of the defendant to take appropriate care.

60    There is no evidence of any observed bruising of the plaintiff's head, and there is no other physical sign of any damage to him. The examination of the plaintiff by Dr Purchas did not reveal any neurological problem. However, the plaintiff complained of suffering an injury with on-going problems and he has been examined by a significant number of doctors. Some of those doctors support a conclusion that the plaintiff suffered an injury in the toilet which has caused continuing symptoms.

61    The plaintiff's general practitioner, following Dr Purchas, was Dr Khalfan. He has examined the plaintiff on many occasions. He recorded the plaintiff's condition prior to going to Townsville and also recorded other medical difficulties from which the plaintiff suffers. He apparently has, unidentified but manageable, hypertension with arteriosclerosis. He also suffers from a clinical fibrocytic syndrome which the doctor believes is related to his head injury. He was of the opinion that the plaintiff has an unresolved post head injury syndrome. Both these findings are disputed by specialist medical practitioners.

62    Dr Khalfan provided a written opinion in 1998. That opinion repeated his conclusions from a previous report indicating that he continued to treat the plaintiff on a needs basis. The doctor noted that by this stage the plaintiff was developing signs and symptoms of depression. He recommended, as he had done on previous occasions, a period of intensive psychological and physical rehabilitation.

63    The plaintiff was also seen by Dr Hugh Jolly, a psychiatrist. Dr Jolly offered the view that the plaintiff had suffered some form of concussion from his injury. He records a disturbance in consciousness stating that the plaintiff does not have a full and continuous memory of the event. The doctor commented:

"To achieve the status of district governor for Apex is quite an achievement. It indicates certain personal attributes, much service to the community and high regard amongst one's ……… peers. Further, Mr Sutherland had responsibility for the day to day running of a large property. Does he have a history of a drinking problem? I do not believe so, nothing like that comes filtering through . Is it really likely that he would chose to embark on a course of drunk and disorder conduct in Townsville? It sounds to be me as if the concussive blow was more serious than people realise and Mr Sutherland exhibited signs and symptoms of an acute confusional state, flowing from a head injury and not intoxication with alcohol ." (emphasis added)

64    Having formed this view the doctor provided this summary:

"Mr Sutherland struck his head, harder than people realised, and exhibited a concussive confusional state, lasting several days, which again went unrecognised. A post concussional syndrome set in, with characteristic symptomatology, and in the face of continuing adversity and constitutional stress Mr Sutherland has become clinically depressed. As happens with chronic forms of this condition, Mr Sutherland has run down to be but a shadow of his former constitutional self, and his way of life is collapsing."

65    Dr Jolly also took issue with some of the conclusions previously expressed by other doctors. In particular he took issue with the conclusion of the neurological registrar at St Vincent's hospital who did not believe that the nature of the plaintiff's injury could have caused the symptoms which he related.

66    I cannot accept the opinion of Dr Jolly, for it is clearly based upon his assumption that the plaintiff did not have a history of heavy alcohol consumption. However, it is plain from the notes of Dr Purchas, with respect to his observations of the plaintiff's liver, that by April 1987 the plaintiff had a significant alcohol problem. Indeed, his observation of the plaintiff, apart from his liver, confirmed that problem to have existed at the time of the incident.

67    I have previously indicated that Greta Goldberg, a clinical psychologist, who also examined the plaintiff and reported that his accident appeared to have involved a concussive head injury and a very brief period of unconsciousness. She concluded that psychological trauma from the event was exacerbated when routine investigations revealed a pre-existing cranial cyst leading to surgery and a dramatic reduction in the plaintiff's drinking.

68    Greta Goldberg expressed the opinion that the continuing symptoms of pain, headache and depression were probably related indirectly to the original accident. This was suggested by the apparent worsening chronicity of his problems, which is often the case in Post Traumatic Stress Disorder after an accident that involves head injury followed by sequelae of medical events that affect lifestyle and quality of life.

69    She does not appear to have considered whether the plaintiff's problems may have been related to his alcohol consumption.

70    Dr Newcombe, a neurosurgeon, also reported on the plaintiff. He assumed the plaintiff to have been well prior to the accident, and formed the view that he was suffering from Post Traumatic Syndrome, which persists. Accepting the plaintiff was well before the impact, he formed the view that the subsequent condition and attempts at treatment, were related to that impact. He does not appear to have considered the significance of the plaintiff's alcohol consumption and whether he had difficulties before the accident which continued after his return from Townsville.

71    In October 1988 the plaintiff was referred for neurological examination at St Vincent's hospital. The neurology registrar, Dr Scott Whyte, examined the patient and found that he was physically normal. The conclusion expressed was as follows:

"This patient experienced a minor head injury in April 1987 following which he experienced symptoms consistent with post-head injury syndrome. The persistence of these symptoms and worsening of these symptoms cannot be ascribed to this cause and as such we have been unable to make a diagnosis as to the reason for the continuation and worsening of these symptoms. With the results to date it is unlikely that there is any significant pathology and we have reassured this gentleman and suggested that these symptoms will improve in time without further treatment."

72    Dr Danta, a neurologist, also provided a report. In 1989 he found that the plaintiff had no relevant abnormal neurological signs and the pressure sensation in his head was characteristic of muscle contraction or tension headache. He found that the left temporal subarachnoid cyst is just an incidental finding which had not been aggravated by any head injury.

73    The plaintiff was also seen by Dr Lord, a consultant physician neurologist. He reported on 19 June 1998. He conclusion was that the plaintiff:

"Seems to have suffered disability out of proportion to the apparent head injury but if he had suffered a real frontal brain injury this could account for the apparent long reaching effects."

74    Dr Sydney Smith, a psychiatrist, gave evidence before me and his reports were tendered. He first saw the plaintiff in August 1995 and had the opportunity to examine the available medical reports at that time. Dr Smith identified a number of inconsistencies between the story which the plaintiff told him and that which he had told other examining doctors. In particular the plaintiff had denied to Dr Danta that he remembered the blow, but had told Dr Smith he could recall it. Dr Smith also commented that, although the plaintiff complained that he was affected by the accident, he did not seek medical attention until after he returned from Townsville. Dr Smith questioned whether the role of alcohol has significance in the behavioural characteristics reported by the plaintiff during his time at the Apex convention.

75    Dr Smith comments upon Dr Newcombe's finding of Post Traumatic Syndrome, with which he disagrees. He concludes:

"There is no reason to expect that the blow to his head in the accident would have produced any anxiety state."

76    However, Dr Smith identified a number of stressors in the plaintiff's life, both before and after the incident, which are likely to have contributed to an anxiety state. They include his divorce, separation from his children, significant financial problems with the farm, the death of his mother of Alzheimer's disease, difficulties with personal relationships, the subarachnoid cyst, and diagnosed hypertension. By March 1988 the plaintiff was found to have high blood pressure, and by early 1993 he started to suffer from angina and at one stage had a high triglyceride level.

77    Dr Smith concluded, by saying:

"Given this extraordinary collection of stresses it is likely that whilst any 'Post Traumatic Stress Syndrome' might have been triggered by the blow to the head, the neurotic symptoms were perpetuated by his ongoing grief for his mother, the incidental finding of the large subarachnoid cyst, the difficulties in his relationship with his defacto, the ongoing financial stresses associated with his life as a farmer, and his deteriorating physical health."

78    Dr Smith saw the plaintiff again in August 1999. Before reporting, he had the opportunity to review many of the medical reports which had been provided by other doctors. On that occasion he concluded that:

"Any stress associated with his head injury was of relatively minor importance when compared to the stresses associated with the discovery of the arachnoid cyst and the resulting investigations and surgery, his ongoing financial problems and his Family Court matters."

79    In his evidence before me, Dr Smith stated that having reviewed all of the available material, in his opinion the plaintiff was suffering "a neurotic condition with anxiety and depressive symptomology which has arisen out of a number of stressors that he has incurred over the years." He noted that the plaintiff was reporting stress reactions to his general practitioner prior to going to Townsville; reflected in the paraesthesia from his head to his toes. He also noted that the doctor reported excessive alcohol and high blood pressure. He noted the record of an enlarged liver, which is compatible with chronic alcohol abuse.

80    Dr Smith stated that his review of the medical records confirmed his conclusion. In his opinion the plaintiff had an anxiety condition prior to going to Townsville and was drinking heavily. He did not believe the plaintiff was suffering from a Post Traumatic Disorder caused by the incident in the hotel.

81    Dr Tuck, a neurologist, examined the plaintiff in 1993. He reported that the plaintiff had reduced his alcohol consumption from as much as 80 grams a day to approximately 30 grams. He reported hypertension, complaints of chest pains, and problems with sweating. He concluded:

"I cannot see any obvious connection between the injury that Mr Sutherland sustained in 1987 and his continuous headache which sounds like a muscle contraction headache. There are no features of migraine, nor are there any abnormalities in the neurological examination that might suggest an intracranial lesion."

82    The plaintiff was also examined by Dr Leonard Harvey, who reported in August 1999 that his physical examination did not reveal any neurological abnormality. He expressed the opinion that:

"Mr Sutherland's symptoms reflect psychological disturbance rather than any physical abnormality. His complaints are multiple and not consistent with the alleged head injury.
The fact that he does not describe any external head damage, no actual loss of consciousness suggests the blow to his head was a minor one. That there was no immediate attempt by him or his friends to seek medical help is evidence there was little or no concern about his condition."

83    He was also examined by Dr Peter Rawling, a clinical neuropsychologist. That examination occurred in September 1999. Dr Rawling carried out various assessments and concluded that there is no evidence of any memory impairment, but that the plaintiff may be at risk of developing a vascular-type dementia. He concluded that:

"The persisting headaches were most likely the result of a pre-existing condition (hypertension) and/or the many stresses in his life unrelated to the accident. In summary, the knock on the head sustained in the incident under investigation would not seem to have had any role to play in his current symptom complex."

84    The plaintiff was also examined by Dr Ernest Sommerville, a consultant neurologist, who concluded that the plaintiff's description of his behaviour following the alleged incident was atypical. He said he believed that the plaintiff's headaches are far more likely to be due to psychological factors than to any head injury. He did not believe that reported head injury could have caused the symptoms reported by the plaintiff.

85    I am unable to accept the opinions of Dr Jolly, Dr Danta, Dr Khalfan and Dr Goldberg. I am satisfied that if the plaintiff suffered an injury it was minor and did not cause the symptoms of which he now complains. He sought no medical attention but continued at the convention where he reported that "he drank a lot of beer." I have little doubt his alcohol consumption explains his behaviour during the course of the convention. Having regard to the stresses which were apparent in the plaintiff's life prior to his going to Townsville and the significant problem he was experiencing with alcohol, I do not accept that the incident in the toilet is the cause of the continuing headaches, anxiety and general deterioration in the plaintiff's psychological and physical condition. He was clearly suffering significant stress before the incident and either because of his alcohol consumption or in combination with other factors, his physical condition has continued to deteriorate.

86    However, having regard to the evidence of Mr Cole, I am satisfied that the plaintiff, on stepping up to the urinal, did hit his head on the light pelmet and fall to the floor. No doubt this caused him some pain, a temporary headache, and embarrassment. As I have stated I am also satisfied that the design of the urinal was unsatisfactory and the relationship between the step and the light pelmet was such that a tall person would be likely to strike his head.

87    It follows that the plaintiff is entitled to a verdict in a sum which reflects the minor nature of the injury and embarrassment. In my judgment an award in the sum of $7,500 is appropriate.

88    Accordingly, there will be a verdict and judgment for the plaintiff in the sum of $7,500. I reserve the question of costs.

Last Modified: 07/11/2001