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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Temel, Mevlut v State of Queensland

Details

AGLC: Temel, Mevlut v State of Queensland [1998] QSC 291
Case: [1998] QSC 291
Decision Date: 18 December 1998

CaseChat Overview and Summary

The case of Temel, Mevlut v State of Queensland involved the plaintiff, Mevlut Temel, who sought compensation from the State of Queensland for injuries sustained in an accident in 1988. The dispute centred on the nature and extent of the injuries and disabilities, as well as their causation and impact on the plaintiff's ability to work. The matter was heard in the Queensland District Court.

The central legal issues the court had to address were whether the plaintiff's alleged disabilities were organic or non-organic in nature, and if the injuries sustained in the accident were the primary cause of the plaintiff's inability to work. This involved an assessment of the medical evidence provided by various experts, as well as the lay testimony of the plaintiff's former employers. The court had to determine the credibility and reliability of the medical evidence and how it related to the plaintiff's work capacity.

In its reasoning, the court found that the report prepared by Dr Nothling was not reliable as it was based on unverified video recordings and a private investigator’s report. However, the court considered the evidence of Mr Whiteford and other medical experts, including Dr Dunglison, Dr Myers, Dr Cameron, and Dr Weidmann. The court concluded that there were significant discrepancies between the plaintiff's physical actions and his reported physical abilities, suggesting the presence of a somatoform disorder. Furthermore, the court found that the plaintiff's current conditions, such as diabetes and high cholesterol, were not attributable to the 1988 accident. Based on this evidence, the court determined that the plaintiff's disability was completely non-organic and that he had fully recovered from the mild electric shock he sustained. The court ultimately ruled in favour of the defendant, finding that the plaintiff's inability to work was not caused by the accident.

The court's final orders dismissed the plaintiff's claim, concluding that the plaintiff was not entitled to compensation from the State of Queensland.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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