Sultan v Carbon Consulting International Australia Pty Ltd & Anor [2010] QSC 194

The claim proceeded against the second defendant owner of the ship. The plaintiff’s claim against the first defendant employer resolved on the basis of:

[37] On 13 December 2004 he received $32,000.00 from a claim against his employer and WorkCover for the statutory benefits available to him under that scheme. An amount of $12,286.27 was a refund of benefits he had previously received. The parties agreed that $18,468.58 should be deducted from any assessment of damages by me in this case against this defendant because of his receipt of the money from the first defendant’s statutory insurer.

Liability was in contention and, in particular, the plaintiff’s credibility as to the differing versions and the one ultimately adopted at trial. His Honour Douglas J did not accept the plaintiff’s versions for a number of credibility reasons.

A sample of some of the immediate conflicts:

[7] An earlier version of a plan drawn by the plaintiff for his solicitors dated 24 February 2003, almost three years after the accident, indicated a different position for the accident than that which he now describes, showing that the accident happened near a set of bollards or mooring bitts further to the stern of the ship and close to the hand rail, unlike the bollards which he now identifies as the ones which he hit. Taken with a number of inconsistencies, highlighted in the cross-examination, of his description of events in a variety of documents collected in Exhibit 10 these versions have raised serious doubts in my mind about whether an incident of the type he alleges actually happened. This is particularly so when one compares his versions with the evidence of Mr Sekander and that of Mr Noronha that they observed no such incident.

[8] One of the significant omissions in any of the descriptions is any earlier reference to him slipping and falling because of oil on the surface of the passage, apart from references to a failure to remove “other liquids” in a document dated 24 February 2003 as a Form 1 under the Personal Injuries Proceedings Act 2002 and in a document dated 8 July 2003 provided to WorkCover. Nor did he refer, in any of the documents, to evidence he gave in this court that, on his way off the ship with Mr Sekander, he knelt down and felt the surface where he had slipped with his hand noting that it was moist or oily.

[9] There were also inconsistencies in his various descriptions of his fall as to whether he landed on his hands and knees or on his side or on his behind or buttock. There were several versions of what happened given by him in a variety of documents before the trial. Nor did he mention an injury to his right knee in his report to his employer although that now forms part of his claim.

[10] He denied tripping on a bollard or a stanchion socket or telling Mr Sekander that he tripped over such a socket. He was wearing safety footwear and had a torch on him but did not use the torch. He agreed that he did not tell Mr Noronha about the oil on the surface of the walkway he noticed when he was on his way off the ship.

As to liability:

Liability was decided on general principles despite being an international vessel. Some interesting comments made by His Honour Douglas J starting at paragraph 63.

[63] Both parties submitted that this was a case where the duty of care was the general duty in negligence, where the question was what would a reasonable person have done to identify what would have avoided the injury.[8] Mr Newton for the plaintiff also submitted, however, that the relevant duty owed to a person entering a ship was high and akin to that owed to employees on the ship, by reference to s 11 and s 13 of the Occupational Health and Safety (Maritime Industry) Act 1993 (Cth). That duty was not pleaded, nor were several international conventions to which he drew my attention. They were admitted subject to the objection of counsel for the defendant as to their relevance. Mr Newton’s submission was that if the objection was maintained to the admissibility of those documents, the convention documents were only relied upon by him as outlining duties which the evidence supported. As will appear from my assessment of the evidence it is my view that the case does not turn on the terms of the Occupational Health and Safety (Maritime Industry) Act or on the language of the international conventions.

[64] The defendant’s safety and quality management manual specified that the “pilot boarding area” must be kept free from obstructions and painted with anti-skid paint using contrasting colour. The plaintiff’s argument included the submission that the path from the accommodation ladder, which would also have been used by a pilot boarding the ship, to the accommodation area was part of the pilot boarding area. More importantly, he argued that such pathways should all have been finished with an anti-slip paint or surface.

[65] Counsel for the defendant submitted that, if a fall occurred, it was most likely to have been the fall the plaintiff first described to a Dr Minh Le, namely a fall onto his hands and knees, which is consistent with the observations made by Mr Sekander. They went on to submit that the plaintiff may well have sustained a meniscal tear in the left knee in such a fall, if it is true that he had not experienced his problems earlier. Such a fall is not that attested to by the plaintiff in evidence, however, and is not the fall described in the Statement of Claim. It is also a fall much less consistent with a slip than other versions given by him.

[66] Counsel submitted that the plaintiff was a person given to manipulation and variation of facts and that in the course of trying to show that he was seriously injured he had invented features such as his landing on his posterior, sliding on the deck, his left knee, (sometimes both knees) sliding into a bitt or a bollard, and “crashing heavily”.

[67] They argued that the plaintiff’s assertion to a Dr Brown that he crashed heavily was the statement that most clearly illustrated the correctness of their submission as two persons who were walking slightly ahead of another person on the deck of a ship could not fail to notice the third person “crash heavily” on the deck. They also submitted that the plaintiff invented his story about slipping because, if he simply tripped on an obvious part of the ship’s equipment, he would be less likely to recover common law damages.

[68] In that context they pointed to a number of other issues relating to the evidence affecting the plaintiff’s credibility generally. They included submissions that his account of his disabilities to Ms Aitken and others was inconsistent with what was shown on the video and photographic evidence and the evidence of others observing his performance since the accident. There is some merit in that submission but the explanations offered by the plaintiff for his ability to work in the manner shown for relatively short periods, especially when he had taken pain relief, would make me cautious in accepting that he was lying about his existing abilities, especially taking into account the medical evidence to which I have already referred, particularly from Dr Morrison.

[69] Counsel for the defendant also argued that the plaintiff’s account of his relationship with the AMC was:[9]

“seriously contradicted by the content of the correspondence between himself and the College. That correspondence does not in any way support the plaintiff’s contention that the reason for the conflict at the College was that he made proposals for change at the College that were unacceptable to the College. The correspondence shows that the issue was the plaintiff’s performance, not that of the College. The conflict with the College appears to be an example of conflict which the balance of the evidence demonstrates is commonplace in the plaintiff’s relationship with employers.”

[70] It is true that the correspondence does suggest that the issue from the AMC’s point of view was the plaintiff’s performance in his role but there was no evidence called from the college staff on that essentially collateral issue and, again, I would be reluctant to draw too strong a conclusion about the plaintiff’s credibility simply from the nature of that correspondence. There was an issue reflecting on his credit relating to the timing of his application to the AMC, however, that was significant also for his claimed economic loss. He had given evidence that he applied for the position of lecturer at the AMC because of the injuries he sustained in the accident when he had actually applied before the accident.

[71] Other points argued for the defendant were that the plaintiff had recently invented the allegation that he felt the surface of the walkway on the way off the ship and that he had created the impression that he had obtained a degree in political science when he had not.

[72] The main matters that concern me are, however, the inconsistency of the plaintiff’s evidence with that of Mr Sekander and Mr Noronha. Mr Sekander had no particular axe to grind and gave consistent evidence that was similar to his earlier records of what had happened at the time. Mr Noronha’s evidence was consistent with Mr Sekander’s evidence and inconsistent with the plaintiff’s version, very little of which was put to Mr Noronha when he was cross-examined when he gave evidence on commission. He could recall nothing out of the ordinary happening.

[73] In the circumstances, the variations in the plaintiff’s versions of the incident and the inconsistencies between his evidence and that of the other witnesses whom I accept, particularly Mr Sekander and Mr Noronha, have caused me to conclude that I am not satisfied that the plaintiff has established on the balance of probabilities that he slipped on the ship’s deck. It seems much more likely to me that he tripped in far less dramatic circumstances than he now claims. That is not the case he pleaded.

[74] Even on his pleaded case there is no evidence on which I feel able to rely that would permit me to conclude that the surface of the ship was slippery or affected by oil on the occasion of the fall complained of by the plaintiff or that the defendant should have been aware of such a possibility. The defendant submitted,[10] in terms with which I agree that there was no satisfactory evidence that the surface of the walkway was not a non-skid surface. Mr Noronha said that the paint in question was Alkyd and was non-skid. The effect of his evidence was that all paint on the ship was by its nature, slip resistant, not just the paint on walkways. His evidence was also that if one wished to make it a little more resistant then one could add some sand which would tend to make it more anti-skid than otherwise.

[75] They pointed to Captain Basu’s similar evidence and the fact that Mr Sekander did not see any problem with the surface and submitted that the ultimate issue was whether the walkway was an unsafe walkway in all the circumstances and that the evidence as a whole showed that the walkway was appropriate. They also argued that the plaintiff’s case against the defendant in respect of the alleged lack of a non-slip surface was weakened by the plaintiff’s introduction of the contention that there was a particularly slippery substance, possibly oil, on the surface. If there was such a slippery substance on the surface, they submitted that it would have made no difference whether the walkway was treated with a “non-skid” surface or not.

[76] They then argued that the evidence does not enable a finding to be made that there was a substance such as oil on the surface. If it did, they said, the plaintiff’s claim would fail on the basis that there was no evidence to support a finding that the defendant knew or ought to have known of the presence of the substance on the floor at the point where the plaintiff allegedly slipped. Nor was there sufficient evidence to support a finding that the defendant ought, from previous experience, to have put in operation a more effective system of cleaning the floor in the area where the fall occurred than Noronha described. There was no evidence that the defendant ought to have realized that there was a problem with oil or some other slippery substance at that location, whether at that time or generally.

[77] In this respect, they submitted, it was important to note that the floor in question was not a floor in a shopping centre or a supermarket. It was not a floor over which numerous pedestrians would travel with varying forms of footwear. It was a floor which marine personnel with appropriate footwear and used to proceeding over the boat, would traverse. In the present case, their argument continued, if there was oil or a similar substance on the walkway which caused the plaintiff to fall, there was no evidence that the defendant knew or ought to have known of the presence of the substance at that time and at that particular place, or that the defendant ought from previous experience to have put in operation a more efficient system of cleaning the floor in the area where the fall occurred.[11]

[78] In any event, they submitted, the ship had a planned maintenance system, about which Mr Noronha gave evidence[12]. He inspected the complete ship on a daily basis. This was additional to other procedures, including the complete cleaning of the ship prior to its entry into port.

[79] Additionally they argued that the plaintiff had not proved the state of the area on which he claimed to have slipped, leaving the court to speculate as to whether, if indeed he did slip, he slipped because of some non-skid deficiency in the floor, or on the other hand, he slipped on some slippery substance which had been allowed to accumulate on the walkway. On that basis, they argued that the plaintiff’s case failed simply because of lack of proof as to what brought about the fall.

[80] The argument to the contrary for the plaintiff was that there were three possible explanations for the slipperiness of the deck alleged by him.[13] They were that the paint on the walkway was not non-slip, that, if it was, it was worn and required replacement, and the possibility, apart from it being damp at the time, that it may have had oil spilled from the nearby number 8 or 9 hatch or equivalent or detergent from cleaning before entering port, that is, some form of contaminant. The problem with those submissions was that they were not supported by the evidence I accept and were based to a large extent on speculation.

[81] Mr Newton submitted that, while Mr Noronha tried to suggest that the ship was well maintained and that the number of jack repairs was part of a standard maintenance program, I should accept, in reliance on the plaintiff’s evidence, that it was not a well maintained ship, that there were a lot of leakages and that probably the whole hydraulic system needed attention. He also pointed to the absence of particular non-slip paint in the paint inventory on his client’s observation of that document.

[82] I have difficulty in discerning, however, how that establishes, contrary to the evidence of the witnesses I accept, that there was no non-slip paint on the surface where the fall occurred or that there was a slippery substance at that position. I also have difficulty accepting the plaintiff’s evidence that he identified some slippery substance on that spot on his way off the ship, contrary to the evidence of Mr Sekander. Even if I had accepted that the plaintiff did slip, therefore, I do not believe that he has shown that the slip occurred because of the defendant’s negligence.

[83] In the circumstances the plaintiff has failed to prove his case and his action must be dismissed. I shall, however, proceed to assess the damages I would otherwise have awarded.

[90] Doing the best I can in the circumstances, my assessment of his damages had I found in his favour on the question of liability would have been:

General damages $40,000.00
Interest on $20,000 at 2 per cent for 10.2 years $4,080.00
Out of pocket special damages (ex 4) $1,763.35
Interest for 10.2 years at 5 per cent $899.31
HIC refund (19 November 2003) $2,187.85
Additional HIC (estimate) $2,500.00
Past care – 290.17 hrs at $18 per hour $5,223.00
Interest thereon for 10.2 years at 5 per cent $2,663.76
Future surgery $20,000.00
Future care (global) $10,000.00
Future pharmaceuticals (ex 6) $2,798.27
Future occupational rehabilitation(see ex 2, Tab 4, p. 40 of 41 in Ms Aitken’s report) $6,140.00
Past economic loss (global) $250,000.00
Interest thereon for 10.2 years at 5 per cent $127,500.00
Superannuation (two thirds of past economic loss at 9 per cent) $15,075.00
Future economic loss (global) $150,000.00
Superannuation on two thirds thereof at 9 per cent $9,000.00
Assessment $649,830.54
Less Workcover settlement (clear of WorkCover refunds of $12,286.27) $18,468.58
Total assessment $631,361.96

[91] Because of my findings as to liability, however, there should be judgment for the defendant. I shall hear submissions as to costs.

Brisbane Barrister – David Cormack

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