Temel, Mevlut v State of Queensland - [1998] QSC 291

IN THE SUPREME COURT
OF QUEENSLAND

No. 1832 of 1991
Brisbane

Before Mr Justice Muir
BETWEEN:

MEVLUT TEMEL
Plaintiff
AND:

STATE OF QUEENSLAND
Defendant

CATCHWORDS: NEGLIGENCE - master - servant - breach of employer’s duty of care - physical and psychiatric injury - whether nature and extent of symptoms referable to electrocution suffered in work place - damages.

Counsel:Mr W.D.P. Campbell for the plaintiff
Mr R.T. Whiteford for the defendant

Solicitors:Murphy Schmidt for the plaintiff
B.T. Dunphy, Crown Solicitor for the defendant

Hearing dates: 7 - 10 December 1998

REASONS FOR JUDGMENT - MUIR J

Judgment delivered 18 December 1998

1  The plaintiff was born in Turkey on 23 April 1940. His father was a farmer and after completing five years of primary schooling he returned to the farm where he remained until commencing military service at the age of 20. At the age of 29, in 1969, he migrated to Australia where he had a succession of labouring and other generally unskilled jobs. He appears to have held none of them for longer than about 12 months. On 23 June 1975 he commenced work with the defendant in the Queensland Government Printing Office as a labourer. For about four years prior to 4 November 1988 his duties were of a general labouring nature and included the cleaning, filling and heating of large electric water urns kept in the tea room at the Go Print premises at 371 Vulture Street, Woolloongabba.
The plaintiff’s account of the accident
2  The plaintiff says that on 4 November 1988 at about 7.40 am he had filled and switched on some of the urns, had unwound the electricity cord from another, placed the plug in a power point on the wall and with his left hand on the control switch of the urn, was turning on the power with his right hand when he received an electric shock.
3  The plaintiff was assisted to lie down by a fellow employee. The Queensland Electricity Commission investigated the accident on the day on which it happened and much of the report of the inspecting officer is quoted later in these reasons.
Medical treatment immediately after the accident
4  The plaintiff was taken by ambulance to the Mater Hospital and admitted. He was kept overnight for observation and discharged the next day. In a report of the Mater Hospital dated 8 August 1991 it is stated -
“Physical examination was normal ... and 4/5 power in the left arm and 4 plus /5 power in the left leg, with the right sided power being normal, with normal co-ordination, sensation and reflexes. E.C.G. was normal. It was thought he had a temporary weakness post shock, possibly with a functional element. He was admitted to the ward, and observed, and received physiotherapy for the weakness. He gradually improved and was able to be discharged the following day, at which time it was noted that he had recovered.”

5 The report sets out the following additional medical history -
“He was seen by the physiotherapist in December 1988 for management of his tender neck muscles. He had decreased range of movement in the cervical spine and all spines were tender from C4 to T4. This was relieved after mobilising his joints and the range of movement also improved. He was treated with exercises for his neck and thoracic spine and shoulder.

He was reviewed again in February 1989 by the physiotherapist, at which time it was noted he had left sided pins and needles which had extended from the left arm to the let leg intermittently. At that time, he was thought to be neurologically normal and it was thought that physio was not helpful and he was discharged from further physiotherapy management.

He was also reviewed by the Orthopaedic Outpatient Department in February 1989 complaining of cervical and lumbar pain since his electrocution in November 1988 which was constant, and increased with work, and eased with a collar. He had left arm and leg pain which was diffuse, and which had improved in the leg at the time of review. Other symptoms included a numb left arm and left leg, and dizziness on standing. Physical examination revealed a limited range of movement of the cervical spine, with no skin changes and no wasting. He had variable power loss, ?voluntary, and decreased sensation in C6 and C8 on the left side. Deep tendon reflexes were generally reduced. Xrays demonstrated C4-C5 disc degeneration with preserved disc spaces and normal intervertebral foramina. It was felt that there was no evidence for cervical myelopathy, and he was referred to Neurology Outpatients.

He was seen there in June 1989 at which time he was noted to have described a left ear infection for four months, a left breast/nipple infection and left body numbness globally, especially the left arm which was gradually worsening. It was painful, and effecting (sic) his sleep. He was able to sense things held in the left hand as well as before, and there were no injuries as a result of sensory changes. He is also noted to have been unable to work since the accident, and to have become impotent. He described recurrent left sided headaches which had been infrequent before the accident, forgetfulness, and postural presyncope.
...
He was next seen at Outpatients in February 1990 with testicular pain which he had had since the electrocution accident, and left loin to groin pain which occurred during sexual intercourse. ... Physical examination revealed normal testes, left smaller than right, and abdominal examination was normal. Ultrasound of the testes demonstrated small hydrocoeles, an I.V.P. was said to be normal but ?with a mass lesion on the left kidney. This was investigated with an ultrasound which demonstrated normal kidneys bilaterally. He subsequently underwent a cystourethroscopy in February 1990 which revealed mild cysto-trigonitis and enlargement of the middle lobe of the prostate, but overall was thought to be a reasonably normal study.

He was further reviewed in March 1990 in Neurology Outpatients where he was noted to be not too symptomatic, and managed with Ural and aspirin.

On review in August 1990, it was noted that he had had no problems for three months, although describing some frequency in nocturia and his Ural was repeated.

He was last reviewed in February 1991 at which time he was noted to be reasonably asymptomatic and the Ural was continued, with an appointment for review in one year.”

6 The plaintiff was assessed at the Mater Occupational Therapy Department on 19 April, 26 April and 3 May 1989 for an assessment of his physical tolerances and work capability. A report by that Department dated 26 August 1989 recorded inter alia -
“Activities of Daily Living

Mr Temel reports independence in self-care tasks. His wife assists with household responsibilities and he tries to assist when able. He reported being able to mow the lawn and do some simple gardening.

Emotional and Social

Mr Temel has made appointments to attend Occupational Therapy for stress management and relaxation.

He expressed concern about his family and complained about inability to sleep, chest pain, headaches. He is fixated on the idea of having a myocardial infarction after his electric shock.

He reported that his major goal is to get better and then go back to work.

He appeared to be quite an arrogant man and I feel a lot of his problem are (sic) stress related.
...
Conclusion

From the assessments completed, it appears that Mr Temel’s main limitations are:

1.Decreased functional ability in left upper limb and left leg.

2.Increased pain on (L) side of neck, (L) arm and leg on task performance.

3.Stress related problems as mentioned above which I feel could be minimized with a more positive approach to life in general and becoming employed.

Recommendations

1.Attend Occupational Therapy for stress management. (Patient did attend a few times but did not seem to benefit.)

2.Become motivated to seek alternate employment within his physical tolerances.”

7 A useful summary of further developments in the plaintiff’s medical condition and treatment is contained in a report of Dr Klug of 19 November 1998. The summary includes the following -
“Dr. John Cameron, neurologist, examined Mr. Temel on 17.1.89, two months after the accident and concluded that ‘there is no evidence that (Mr. Temel) sustained any other injury apart from a mild electric shock (from which) he has fully recovered .. his present disability is completely non-organic.’

Dr. John Pentis, orthopaedic surgeon, examined Mr. Temel on 15.6.89, seven months after the accident, and concluded that ‘Mr. Temel had sustained a soft tissue injury to his cervical spine which should settle with time.’

Dr. Michael J. Weidmann, neurosurgeon, examined Mr. Temel on 22.8.89, ten months after the accident and concluded that there was ‘no objective evidence on physical examination of organic pathology. It is quite difficult to account for his disability from a neurological standpoint. The sensory loss found on examination is unanatomical and can only be hysterical.’

Dr. William Ryan, orthopaedic surgeon, examined Mr. Temel on 10.11.89 and concluded that ‘Mr. Temel has a minimal disability, if any, that is of the order of 5% at the most, related to any orthopaedic condition. He may have minor degenerative change in the cervical spine contributing to his symptoms. I cannot find any orthopaedic condition to account for his symptoms’

Dr. Leigh Atkinson, neurosurgeon, reports that Mr. Temel was seen at the Neurosurgical Outpatient Clinic on 15.1.90. Dr. Atkinson states: ‘It may be that he has suffered organic brain injuries with the electrocution and I will repeat a CT head scan. The matter of a Thalamic syndrome does arise. He will be seen further at the Pain Clinic.’

Princess Alexandra Hospital progress notes contain entries referring to thoughts of jumping off a railway bridge two months after the accident, a minor overdoes in front of his wife six months after the accident, some work related problem one year before the accident involving verbal abuse as a ‘wog’, a history of depressed mood but no clinical evidence of depression, concerns surrounding pain present at all times down his left side, patient nominating the main disruption caused by the accident as being his libido.

Princess Alexandra Hospital Discharge Summary related to an admission on 3.5.90 for assessment of depressive illness. On admission, Mr. Temel complained of continuing pain and mild loss of power in both upper and lower left limbs since his accident. He reported mild depressive symptoms of poor sleep and disturbed appetite. He was not suicidal. Mental status examination showed little evidence of pervasive depressed mood. There was no evidence of psychosis and he appeared in clear sensorium. During admission, there appeared to be no evidence that suggested an episode of a major depression or other mood disturbance. Following a period of observation, Mr. Temel was discharged to return to the care of the Pain Clinic.

Princess Alexandra Hospital report to Workers' Compensation Board of Queensland regarding Mr Temel's admission to the P.A.H. Pain Clinic on 21.8.89. Neurosurgical findings were left sided weakness and sensory disturbance in the presence of normal power on testing and normal deep tendon reflexes. A CT scan of the head was normal. No serious organic pathology could be found. It was thought that Mr Temel ‘could possibly have suffered organic brain injuries with the electrocution or possibly a Thalamic syndrome. When seen at the Pain Clinic on 26.3.90, it was felt there was a depressive element to Mr Temel's disorder, hence he was referred for psychiatric assessment. This took place on 26.3.90. The psychiatrist felt there was no evidence of psychosis and no major risk of attempted suicide.

Dr. Martin Nothling, psychiatrist, examined Mr Temel on 12.6.90 and considered his history to be ‘one of a depressive neurosis.’ Dr. Nothling considered it unlikely that Mr Temel had suffered organic brain damage as a result of the electrical accident but recommended that Mr Temel have serological tests for syphilis and an HIV antibody test and that the opinion of a neurophysician be obtained. Dr. Nothling re-examined Mr Temel on 18.12.91 and noted that Mr Temel's HIV antibody test was non-reactive, as was a VDRL and a Treponema Pallidum test. Furthermore, a CT head scan had shown no abnormality and Mr Temel's EEG had been reported as a normal tracing. Dr. Nothling notes Dr. John Cameron's opinion that Mr Temel's disability was of a non-organic nature. Dr. Nothling goes on to say that if information were available that Mr Temel had had an ‘unconscious reaction’ this would support the diagnosis of a conversion disorder. However, it was Dr. Nothling's opinion that there were features in Mr Temel's case suggestive of a ‘conscious reaction’. In a subsequent report dated 15.6.92, Dr. Nothling comments on a video showing Mr Temel engaged in various activities. In Dr. Nothling's opinion, the surveillance information was further evidence supporting a ‘conscious reaction’ in Mr Temel's case, viz. that Mr Temel was ‘consciously exaggerating or feigning symptomatology for financial gain.’”

The psychiatric evidence

Dr Klug first saw the plaintiff in January 1991. In a report dated 5 February 1991 he expressed the opinion -
“His stated complaints are inconsistent with the nature and extent of his injury and some are clearly exaggerated. He suffers from a CONVERSION DISORDER but an element of voluntary motivation orientated towards secondary gain contributes significantly to the total clinical picture. It is unlikely that he is as incapacitated as he claims to be. Although his psychiatric condition causes some incapacity, its contribution is likely to be less than 50% of his total incapacity. The main impediment to his return to work is lack of motivation caused by pension orientation thinking due to the realisation that his long period of unemployment, age and poor English combined with the present economic situation will make it very difficult for him to get a job.” (emphasis added)
In a report dated 17 January 1996 Dr Klug summarised his views of the plaintiff as follows-
“... although Mr Temel suffered no permanent injury when he received an electric shock ... he has continued to complain of a multitude of physical symptoms, mainly pain and weakness, especially involving the left side of his body, for which no adequate organic explanation has been found. The clinical picture presented by Mr Temel is consistent with the diagnosis of SOMATOFORM DISORDER, the principal features being those of CONVERSION DISORDER and PAIN DISORDER. In addition, he has developed an ADJUSTMENT DISORDER with depressed mood over the past 5 years.”
He expressed the opinion that it was unlikely that the plaintiff would respond to treatment prior to the conclusion of this action. He noted in the 1996 report that the plaintiff’s history was “characterised by considerable inaccuracies”.
In his report dated 19 November 1998 Dr Klug concluded -
“1Mr Temel suffers from a Somatoform Disorder presenting with mixed features of Conversion Disorder and Pain Disorder.
2His condition is a result of the emotional trauma associated with the electrical accident, his cultural background being a contributing factor.
3.However, some elements of his history raise doubts about the reliability of some of its aspects, including the reported level of his incapacity. These elements are:
.The inclusion in his history of conditions which are unlikely to be related to the electrical accident.
.The inconsistencies between his present history and previous accounts.
.The unconvincing description of his suicidality.
.The fact that he was able to travel to Turkey on his own.
4.It is most unlikely that Mr Temel’s condition will respond to any form of treatment. However, his symptoms are likely to diminish gradually after the settlement of his claim when he will not have to focus his mind on the accident and related issues to the same extent as now. However, the ultimate extent of his psychiatric recovery is likely to be incomplete. In my opinion, he will never work again.”
In the course of the report Dr Klug noted that although the plaintiff was described by his daughter as depressed, the plaintiff himself gave no history of depressive symptoms when examined. He concluded that the plaintiff showed no clinical evidence of depression and he found his “description of his suicidality” unconvincing.
He expressed the opinion that some of the plaintiff’s “symptoms are new complaints indicative of an anxiety disorder” and said -
“Over the years since the accident, Mr Temel has come under stress for other reasons. He has been found to suffer from diabetes, hypercholesterolaemia and peptic ulcer. He has had to sell his house because he could not keep up his mortgage repayments. These stresses may well be the cause of his abovementioned symptoms of anxiety.”
In the course of cross-examination Dr Klug was shown a number of video tapes of the plaintiff in and about his house, driving his car, shopping in a supermarket and walking about the shopping centre in April 1991, May 1991, June 1994, July 1994, October and November 1995 and January 1998. The recordings show the plaintiff, from time to time, using his left arm quite freely, lifting it up over his head and gesticulating with it. They also show an ability to walk quite freely but with a slight limp. Dr Klug adhered to his written opinion that the accident in 1988 triggered a sudden and dramatic change in the plaintiff’s behaviour. He said -
“What I just saw on the video does highlight the additional factors which have occurred over the years and which have added an element of voluntary exaggeration to the psychological effects produced by the electrical shock.”
Dr Klug accepted that the greater the inconsistencies between symptoms reported by the plaintiff and the truth “the more voluntary motivation becomes of significance” and the more uncertain the diagnosis of Somatoform Disorder becomes.
In a report dated 27 November 1998 Dr Mulholland, psychiatrist, said -
“Unfortunately there has been no positive progress since 1992 which was the last time that I saw him. I think that this man either has a mixed somatoform disorder with features of somatisation disorder, conversion disorder, hypochondriasis and chronic pain disorder associated with psychological factors or else his is malingering or yet again, alternatively, there is a combination of somatoform disorder and malingering. In other words the third possibility is that he does have a mixed somatoform disorder upon which there is superimposed some elements of malingering.
From an emotional point of view he has a chronic depressive illness which is probably best regarded as being a chronic dysthymic disorder which in former times would be labelled as chronic neurotic depression or chronic reactive depression. This depressive disturbance is secondary to how he has been over the past 10 years and the numerous losses and changes in his life.”
Relying fairly heavily on a history and observations given to him by Imam Rane and Miss Nurcan Temel, the plaintiff’s daughter, he concluded that the possibility of malingering should be discounted in favour of a diagnosis of somatoform disorder. He found it almost inconceivable that the plaintiff would engage in deliberately feigned behaviour over a 10 year period so as to deceive those and other persons. He doubted that there was any real prospect of the plaintiff ever returning to work.
In cross-examination Dr Mulholland said, in effect, that he could not tell whether the pain and disability due to a psychiatric condition, as opposed to that which was consciously feigned, was sufficient to prevent the plaintiff from working and that “it is not possible to reliably say where the one begins and the other stops”. Also in cross-examination, he said that the impression as to the extent of the plaintiff’s pain and disability conveyed to him by Imam Rane and the plaintiff’s daughter was inconsistent with the video evidence. In his view “the effect of the video evidence is to increase the possibility, or increase the degree of deliberate exaggeration of symptomatology”. However he said -
“I think it was inconceivable that he was lying from day one. I don’t think it happens that way. I think that he did have genuine symptoms for whatever reason from the beginning. ... Now, I think that all of that [the treatment including investigation for somatic pain at the Princess Alexandra Hospital] had the effect of strengthening the notion in this man’s mind that he did have something wrong with him at that time. At some time in there he starts doing some exaggeration of physical symptomotology. I don’t know exactly when but sometime he starts exaggerating.”
He concluded that there could be any number of reasons, including a desire to obtain a favourable damages award, for such exaggeration and that it was independent of any injury sustained by the plaintiff in the accident.

Dr Martin Nothling, consultant physician in psychiatry, made three reports. The first dated 9 July 1990 was prepared at the request of solicitors acting for the plaintiff in connection with a workers’ compensation claim. Dr Nothling had previously seen the plaintiff briefly at the Princess Alexandra Hospital Pain Clinic but at the time of his report did not have access to the hospital records. He requested them but they were not produced. Dr Nothling did not put forward any diagnosis in this report but suggested to the solicitors that further enquiries be made. He doubted that the plaintiff’s complaints were attributable to organic brain damage and thought his history was “more one of a depressive neurosis”. Dr Nothling’s second report dated 18 December 1991 was prepared at the request of the Crown Solicitor. In this report Dr Nothling raised the possibility that certain of the plaintiff’s symptoms may be feigned. He expressed the opinion that in the case of an “unconscious reaction”, the symptoms and disability described by the individual, although out of proportion to any organic abnormality or physical injury, will tend to be “reasonably stable over time” and “in different settings”. By contrast, he said that in the case of a “conscious reaction” the symptoms may not be present if the person concerned was unaware of observation, particularly in a non-medical setting. Dr Nothling expressed no concluded view but considered that there was evidence that “subjective complaints are not matched by objective findings”.
In Dr Nothling’s third report of 15 June 1992 he referred to the report of the private investigator and video film believed by him to be of the plaintiff recorded on 9 June 1992 and 10 June 1992. The videos have since been mislaid. He concluded that the surveillance information provided further evidence supporting a “conscious reaction”. He thought that the fact that the plaintiff appeared to drive frequently and without difficulty was inconsistent with the symptoms exhibited by the plaintiff at medical examination. He concluded that -
“... There is strong evidence that Temel ... is consciously exaggerating or feigning symptomatology for financial gain. ... It is only when all the relevant information is presented to an appropriate court or tribunal that a final determination on such matters can be reached.”
Insofar as the report is based on the evidence of video tapes and the private investigator’s report, I am unable to accept it. Dr Nothling was unable to identify the plaintiff in the video recording and the accuracy of the private investigator’s observations was not established. However, Mr Whiteford, who appeared for the defendant, described to Dr Nothling some of the physical activity of the plaintiff depicted in video recordings in April 1991, July 1994, November 1995 and June 1998, as well as in statements made by the plaintiff to Drs Mulholland and Klug. On the basis of those matters, Dr Nothling concluded that there were major discrepancies between the plaintiff’s physical actions on some occasions and his demonstrated physical abilities and reports of physical abilities on other occasions which were not consistent with a somatoform disorder.
Evidence of other medical experts
Dr Dunglison, neurologist, who saw the plaintiff in February 1997, on referral from the plaintiff’s local general practitioner, noted that the plaintiff appeared extremely concerned over the symptoms of Peyronie’s disease from which he suffered. He arranged for him to see the psychiatrist at the hospital.
Dr Myers, a physician who saw the plaintiff in November 1998, reported that the plaintiff had developed a left sided rotator cuff lesion about 12 months previously. His opinion, which was uncontested, was that the plaintiff would have been unable to do the type of labouring work he was doing as an employee of the defendant whilst the condition persisted. In his view, the probabilities were that such a condition would resolve itself without medical intervention within one to two years. His report noted that the conditions of diabetes, high cholesterol levels, urinary symptoms and sexual dysfunction, from which the plaintiff now suffers, are not attributable to the 1988 accident or any psychological aftermath of the accident.
Dr Cameron, neurologist, who furnished reports dated 17 January 1989 and 17 December 1991, expressed the opinion that the plaintiff’s disability was completely non-organic. He concluded that the plaintiff sustained a mild electric shock from which he had fully recovered. He stated in his December 1991 report that the plaintiff was “completely fit for work”. A similar opinion was expressed by Dr Weidmann, neurosurgeon, in a report dated 22 August 1989.
The lay evidence
Three former employers of the plaintiff, who had worked with him, Mr Bredhauer, Mr Boyd and Mr Dunlop gave evidence to the effect that the plaintiff had performed his duties at work competently and diligently. They obviously thought well of the plaintiff. All three could be described more accurately as former work mates rather than friends, although it was clear that they were favourably disposed to the plaintiff. I consider their observations to be generally reliable. Mr Bredhauer saw little of the plaintiff after the accident. Mr Boyd has seen him regularly over the years in a local supermarket. He has noticed that the plaintiff now walks with “a bit of a limp” which was not present when he worked at Go Print. Their evidence suggests that the plaintiff was happy in his work. After the accident, Mr Bredhauer, at the plaintiff’s request, delivered more than one letter from the plaintiff to the personnel officer. He also delivered at least one communication in reply from the defendant to the plaintiff.
Mr Grell, who was a printing manager at Go Print at the time of the accident, observed the plaintiff lying on his back mumbling shortly after the accident. He administered basic first aid and inspected the tea room after the plaintiff had been taken to hospital. He observed a black mark around the location of the plug into which the subject cord had been inserted by Mr Temel. He said it had “just sort of blown out, like”. I accept his evidence.
I also accept Imam Rane and Mr Ergun as truthful witnesses.
Mr Rane’s evidence was of limited assistance because his contact with the plaintiff after the accident was slight. His social contact with the plaintiff, generally, was limited to brief visits for morning or afternoon tea on an annual or biannual basis. His other contacts with him after the accident were generally limited to brief meetings at the door of the mosque when the plaintiff came to pray. He visited the plaintiff in hospital in the evening of the accident and observed that the plaintiff was incoherent, and in a distressed and upset condition. For about 18 months after the plaintiff came out of hospital, he rang Mr Rane from time to time complaining of his condition and talking of suicide. I regard this part of Mr Rane’s evidence as providing support for the conclusion that the plaintiff had a psychiatric condition after and as a result of the accident. Mr Rane spoke highly of the plaintiff’s energy and enthusiasm when involved in community projects prior to the accident.
Mr Ergun is a long standing friend of the plaintiff. From his observation the plaintiff has become less friendly after the accident and his movements discernibly slower.
The plaintiff’s closest friend, Mr Mustafa, gave evidence of a change in the plaintiff’s attitude pre and post accident from a generally interested and active person to one less active and less motivated. He spoke also of a post accident change in the plaintiff which made the plaintiff less able to engage in dispassionate argument.
His observation of the plaintiff is that since the accident he gets more easily upset than he did before the accident and that he takes a great many tablets.
The plaintiff’s daughter, Nurcan, was born on 23 September 1979 and is now at university. She was 9 at the time of her father’s accident. She describes a “drastic change” in her father’s personality and behaviour after the accident. She recalls her father being “very depressed and quick to anger” straight after the accident. She said that the plaintiff from time to time has told her that he is so depressed that sometimes he wants to commit suicide. Describing her father’s capabilities, she said that -
“When he changes the gears [on an automatic car] from park to reverse, he will bring over his right hand to help his left hand move the gears and the park brake as well. ”
Other evidence established that the lever was no more difficult to move than the average normal automatic gear selector.
I accept Miss Temel as a truthful witness. Her evidence, however, was largely made up of general impressions of her father’s behaviour. It is difficult to know the extent to which the recollections of a person in her position are truly accurate and not clouded by factors such as nostalgia and the attribution of a blame or reasons for domestic circumstances which are now far from perfect. There is the additional problem, which I will address later, of trying to differentiate between the consequences of the accident on the one hand and the consequences of various supervening events and circumstances including the plaintiff’s conscious deception on the other. Miss Temel cannot be expected to view her father in a particularly critical or analytical light. For example, she appeared to accept that her father had difficulty in moving the gear selector on the family car with his left hand. The objective evidence is that he would not have had the slightest difficulty in performing that function before the recent onset of his rotator cuff problems.
The cause of the plaintiff’s accident on 4 November 1988
There is some confusion about the cause of the plaintiff’s electrical shock and even as to whether the plaintiff received an electrical shock at all.
Mr Langdon, a former Go Print employee whose precise role within Go Print did not emerge, entertained doubt from around the time of the accident that the plaintiff had experienced an electrical shock. His evidence was that Mr Grice, the senior Go Print electrician, took the subject cord to his work shop and that he (Langdon) looked at the subject cord at about the time it was inspected by Mr Anderson (the inspector from the Queensland Electricity Commission) and found no obvious break in or fraying of the cord. He also said that he did not see the black patch on the wall which Mr Grell remembered observing. I formed a clear impression that Mr Langdon’s recollection of relevant events is quite defective and, for this reason, have had little regard to his evidence.
Mr Grice was not called to give evidence by the defendant and his failure to be called to give evidence was unexplained.
I accept the evidence of Mr Andrews, particularly that contained in his report made on the date of the accident. Mr Andrews noted in his report that “the cord sheath was split and bare conductors were protruding from the split with which he made contact”. I consider it quite improbable that Mr Andrews would have recorded these observations if the cord had been cut by Mr Crisp or himself in the course of the post accident inspection on the day of the accident. It is useful, I think, to set out the bulk of Mr Andrews’ report which was made after speaking to the plaintiff -
“My Investigation revealed that the No 2 tea-urn that he was filling up with water and then switching on was not earthed and a short circuit had occurred across active and neutral just below the moulded three pin plus end.
The weatherproof clipsal IP53 general purpose outlets for urn connection in the tea room were all checked and tested earth 2 polarity correct.
The No 2 urn was tagged defective (faulty equipment).
Upon interviewing Mr Mevlut Temel at the Mater Hospital, he described how he had filled No 2 urn up with water, plugged the moulded three pin plus in and switched the general purpose outlets isolating switch on. He then went to fill another urn, when he noticed that the urn’s ‘power’ on indicating light was not ‘on’.
He then grasped the three pin plus and wiggled it at the outlet with his right hand and with his left hand he turned the urn’s heat control up higher.
The lead blew and shot out just below the three pin plus he claims that he received an electric shock which threw him backwards and to the ground.”
EQUIPMENT WHICH CAUSED ACCIDENT:
1.LANGO 2.4KW 20 LITRE URN
240 VOLTS AC CS 1053N
2.CMA 250 VOLT 10 AMP PLUS TOP
E741-11
N/43”
At the foot of the form under the printed words “RECOMMENDED ACTION TO PREVENT RECURRENCE” the following words were typed -
“All appliances to be safety checked and safety tagged by maintenance electrician at regular periodic intervals.”
I find that the subject cord became worn with use, that the outer sheath of the cord in the area where it adjoins the plug had become split some time prior to the date of the accident and that the insulation on a conductor within the cord was damaged, causing a conductor to be exposed. It is not possible to know the precise mechanism by which or the time at which the insulating materials failed. It is probable however that the process was a gradual one which took place as the outer sheath was damaged. The process may well have accelerated once the outer sheath was broken. I am unable to say what the precise mechanism was by which electricity was conducted through the plaintiff to cause his electric shock. The probabilities are that part of his body made contact with an exposed conductor in the cord and that part of his left hand brushed against the metal part of the urn or even against the metal table on which the urn was standing. Electricity was thus able to be conducted through the plaintiff’s body to earth.
The defendants’ duty of care
The defendants’ duty, as the plaintiff's employer, was -
“... that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risk of injury. The degree of care and foresight required from an employer must naturally vary with the circumstances of the case.”: Hamilton v Nuroof(W.A.) Pty Ltd (1956) 96 CLR 18 at 25, per Dixon CJ and Kitto J.
That passage was referred to with approval in the joint judgment of Mason, Wilson and Dawson JJ in Bankstown Foundry v Braistina (1985-1986) 160 CLR 301. In that judgment it was observed that it had long been recognised that what is a reasonable standard of care for an employee's safety is “not a low one”. The employer's obligation is to “establish, maintain and enforce such a system, that is, a safe system of work”: McLean v Tedman (1985) 155 CLR 306 at 313.
The employer must take into account the possibility that an employee to whom a duty of care is owed might fail to take proper care for his or her own safety: McLean v Tedman (supra) at 312-3 and Nagle v Rottnest Island Authority (1992-93) 177 CLR 423 at 431.
Breach by the defendant of its duty of care
There is no evidence that the defendant had in place at any relevant time, any programme of inspection of electrical fittings or cords or that it had given the plaintiff any instruction in relation to the maintenance, care or checking of electrical cords. I infer that the defendant did not have installed any safety device which, in the event of an electrical short or malfunction, would protect employees from risk of serious injury. In my view, there was a risk of injury to persons such as the plaintiff using electrical cords on a regular basis, in the absence of a safety back up system, if such cords were not regularly inspected. In the absence of such inspection, foreseeable risk of injury could have been minimised or reduced by alerting users to the need to report worn cords. That was not done. A reasonable person in the position of the defendant would have foreseen that a risk of injury or electrocution to the plaintiff or to a class of persons, including the plaintiff, from defective electrical cords and associated fittings was not “farfetched or fanciful”: cf. Nagle v Rottnest Island Authority (1992-93) 177 CLR 423 at 431 and Wyong Shire Council v Shirt (1979-80) 146 CLR 40 at 48. “While a risk which is farfetched or fanciful is not a real risk, a risk may be real even though it is unlikely to occur or is remote”: Phillis v. Daly (supra) at 65 per McHugh JA citing Wyong Shire Council v. Shirt at 48 and The Wagon Mound (No 2) [1967] 1 AC 617 at 641-643. It was not contended on behalf of the defendant that the injury which the plaintiff suffered was not of a kind which could not have been foreseen in a general way: c.f. March v. E. & M.H. Stramare Pty Ltd (1991) 171 CLR 506 at 535.
It is necessary then to determine what a reasonable man would have done by way of response to the risk. As was said by Mason J, with whose reasons Aickin J agreed, in Wyong Shire Council v Shirt (supra) at 47-48 -
“The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.”
In my view a reasonable response would have been to undertake one or more of the following steps-
·institute a regime of inspection;
·instal a safety device;
·give instructions to staff to report worn electrical leads, plugs or points to Go Print electricians for remedial action.
Electrocution can prove fatal. By comparison, the cost and inconvenience involved in implementing any or all of the above measures was slight. The defendant was in breach of its duty to the plaintiff in failing to take at least one such measure and the breach was causative of the plaintiff’s injury.
To what extent, if at all, did the plaintiff have a psychiatric illness caused by the defendant’s breach of duty.
The plaintiff suffered an electric shock on 4 November 1988. It is contended on behalf of the defendant that the shock received by the plaintiff was no more than a “fright” and that it did not result in any psychiatric condition or impairment such as to ground a cause of action in accordance with principles discussed in cases such as Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383. I doubt that the plaintiff was rendered unconscious by it at any stage but I am satisfied that the shock caused weakness in the plaintiff’s left arm and leg. Those weaknesses had largely gone by the time the plaintiff was discharged from hospital the following day. I have no reason to doubt Dr Cameron’s conclusion in January 1989 that the electric shock sustained by the plaintiff was mild, that he had fully recovered from it (in an organic sense) and that whatever disability he had at that stage was completely non-organic. I am satisfied though that shortly after 4 November 1988 the plaintiff commenced experiencing a variety of symptoms which included weakness in the left arm and leg, sensations in those areas, pain in those areas, inability to sleep, depression and a tendency to anger readily for little cause. The evidence discloses a surprisingly extensive but nevertheless real psychological disability flowing from a relatively minor occurrence, which continued throughout 1989, 1990 and 1991.
Initially, the plaintiff had a desire to return to work and there is evidence, which I accept, that he took active steps to pursue that objective. As time went on, the plaintiff started to consciously exaggerate and falsify his symptoms. It is difficult to reach any conclusion as to when this new pattern of conduct first commenced, but I consider that it was probably in about January 1991. At this time, to use Dr Mulholland’s language, the plaintiff had “a mixed somatoform disorder upon which there (was) superimposed some elements of malingering”. The three psychiatrists are all agreed that the diagnosis of a somatoform disorder requires that the sufferer’s pain and disability be honestly perceived and be present fairly consistently over time, regardless of setting. The evidence of the plaintiff’s daughter and that of his friends and acquaintances shows a change in the plaintiff’s pattern of behaviour pre and post accident. I accept that he, in a general way, has become rather less active and extroverted. He is less willing to assist around the house, to participate in activities involving his mosque and to participate fully in social activities concerning his friends.

The extent to which the plaintiff’s symptoms are consciously exaggerated or entirely falsified is difficult to gauge. The plaintiff went to the Mater Hospital complaining of testicular pain in February 1990. He was then also found to be suffering “a mass lesion on the left kidney”. Those conditions were treated. About a year after the accident he was found to be suffering with mild diabetes. In 1991 the plaintiff complained at the Princess Alexandra Hospital of headaches. A myelogram revealed no organic cause of those symptoms. In 1991 the plaintiff saw his general practitioner in relation to his testicular problems. He also complained in July 1991 of back pain and in August 1991 of pain in the left foot. The pain was diagnosed as resulting from plantar fasciitis. In February 1997 the plaintiff was extremely distressed by his symptoms of Peyronie’s disease, so much so that the neurologist to whom he was referred arranged psychiatric assistance. In November 1997 the plaintiff developed a painful left sided rotator cuff lesion for which he had physiotherapy. Consequently, added to the difficulty in disentangling the plaintiff’s conscious exaggeration and misreporting of his symptom, there is the difficulty of ascertaining the extent to which the plaintiff’s unconsciously derived symptoms stem from matters unconnected with the accident.
Dr Mulholland considered that the mis-attribution of matters by the plaintiff such as Peyronie’s disease, sexual dysfunction, testicular problems and the kidney ailment to the accident was not a function of the plaintiff’s psychiatric condition. Dr Klug felt himself unable to express a view as to whether the health problems of the plaintiff which were unconnected with the accident could have caused him to develop a somatoform disorder in any event. Dr Mulholland doubted that they would have caused such a condition.
I have no difficulty in concluding that the plaintiff suffered from a somatoform disorder in 1988, 1989 and 1990 which rendered him unfit for work. The video tape evidence, coupled with the reports of medical practitioners, suggests to me that, by mid 1991, there was strong conscious exaggeration by the plaintiff of his symptoms. There continued to be present, however, an element of unconscious exaggeration as a result of the plaintiff’s psychiatric condition. I consider it probable that a somatoform disorder caused by the plaintiff’s 1998 accident continued for many years and, perhaps, still continues. However, I think it quite improbable that such a disorder rendered the plaintiff unfit for most forms of labouring employment by July 1994. The video tapes provide cogent evidence that by that time the plaintiff suffered little residual physical disability (connected or unconnected with a psychiatric condition) as a consequence of the accident.
Determining the time during which the plaintiff’s genuine psychiatric disorder rendered him unable to work as a manual labourer is rather more difficult. There is evidence that by mid 1991 the plalintiff had largely recovered from whatever weaknesses had existed previously in his left leg and arm and from any associated pain and discomfort. However, it does not follow, necessarily, that by the time the plaintiff’s psychiatric condition ceased to render him unfit for the type of manual work he was likely to be able to obtain.
Having regard to the reports of Drs Nothling and Cameron and, accepting as I do that the plaintiff’s conscious exaggeration and falsification of his symptoms gradually increased, I find that the plaintiff has not proved that he was unable to do labouring work after the end of 1991.
The plaintiff bears the onus of proving that the defendant’s breach of duty was the cause of his damage. This is not, entirely at least, a case such as that as referred to in the judgment of Barwick CJ, Kitto and Taylor JJ in Purkess v Crittenden (1965) 114 CLR 164 at 168 where the plaintiff having made out -
“a prima facie case that incapacity has resulted from the defendant’s negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would in any event, have resulted from a pre-existing condition rests upon the defendant”.
Those principles have application to determination of the extent to which maladies and conditions unconnected with the accident caused or contributed to the plaintiff’s psychiatric condition. However, the principal difficulty in determining the extent of the plaintiff’s incapacity arises from his own conscious deception, coupled with the fact that he has not been accepted as a reliable witness with respect to his mental and physical condition and symptoms. In terms of onus of proof the defendant is thus not in the position of a defendant whose wrongful conduct impinged on a plaintiff with a pre-existing abnormality. But even having regard to this problem I am of the view that by the end of 1991 the stage had been reached whereby the plaintiff’s true psychological condition did not prevent him from working in employment of the nature of his previous employment.
Damages
I assess the plaintiff’s damages as follows -
Past and future pain and suffering and loss of amenities  $30,000.00
Interest on past pain and suffering (50% of $30,000)
permanent disability @ 2% pa for 10 yrs  2,118.03
Special damages:
(a)Medical expenses paid by Workers’ Compensation Board (Ex 25)           363.19
(b)Other expenses paid by Workers’ Compensation Board (Ex 25)    165.60
(c)Medical expenses refundable to HIC (Ex 26)  951.25
(d)Pharmaceutical expenses paid by plaintiff (Ex 19)  881.66 2,361.70
Interest on special damages paid by plaintiff ($881.66) @ 5% pa for 10 yrs  445.24
Past economic loss calculated to 31 December 1991 in accordance with Ex.28               49,615.86
Interest on net past economic loss (after deduction of $69,146.46 DSS
(Ex 27) and $32,402,34 net Workers’ Compensation payments (Ex 25))
@ 5% pa for 8 yrs since Workers’ Compensation ceased  Nil
Fox v Wood (Ex 25)  2,048.74
Past superannuation loss (calculated at 6% of past economic loss)  2,976.95
Future economic loss after discounting for contingencies  27,000.00
Future superannuation loss (calculated at 6% of future economic loss)  1,620.00
Past care ($7.50 ph) - 3 hrs pw 8 wks to 31.12.88 (24 hrs)
- 1 hr pd 1,095 days to 31.12.91 (1,095 hrs) 3,212.50              8,392.50
Interest on past care @ 2 % pa for 10 yrs since accident  1,678.50
$128,257.52
Less refund to Work Cover  $40,504.87
Total  $87,752.65
In the above calculations I have allowed approximately 18 months net income for future economic loss having regard to: the plaintiff’s diminished employability as a result of increased age between November 1988 and 31 December 1992; the fact that the plaintiff lost a job which he enjoyed and which he probably would have retained until at least age 60 and to his increased vulnerability to psychiatric injury as a result of his residual (albeit slight) psychiatric condition.
I invite the parties to prepare minutes of judgment to reflect the above reasons.
I will hear submissions on costs.