Langdon v Carnival PLC t/as P&O Cruises Australia

1. [1]

   This judgment concerns a personal injury suffered by the plaintiff allegedly caused by a step giving way in the pool while on a cruise operated by the defendant.

2. [2]

   The plaintiff is Peter Langdon. The defendant is Carnival PLC t/as P&O Cruises Australia ACN 107 998 443. The plaintiff was represented by R. McIlwaine of counsel. The defendant was represented by C.P. O.Neill of counsel.

3. [3]

   The parties relied on a joint court book marked Exhibit A (‘CB’), comprised of three volumes.

4. [4]

   The plaintiff’s daughter booked a cruise for her the father, the plaintiff, with the defendant on the ship, the Pacific Aria on Voyage A7XXN, visiting Papa New Guinea and the Solomon Islands for 10 days, commencing 14 November 2017 departing Brisbane, Queensland. The plaintiff alleges that on 19 November 2017 he sustained injury to his cervical spine, left shoulder, and psychological injury because of the incident when he fell a short distance after a step gave way beneath him onboard the Pacific Aria cruise ship (‘the incident’).

5. [5]

   These proceedings are governed by the Civil Liability Act 2002 (NSW) (‘CLA’). The defendant has admitted it breached its duty of care owed to the plaintiff on the basis that the subject step gave away and collapsed when the plaintiff stepped onto it. The central issue is causation. The defendant denies that it is liable for the injuries and disabilities that the plaintiff alleges he now experiences. The defendant says that there is no causal link between the incident and the injuries and disabilities now alleged by the plaintiff.

6. [6]

   By the statement of claim filed 17 November 2020, the plaintiff relevantly pleads:

7. [7]

   The plaintiff claims that as a result of the incident he suffered pain and injuries relating to, cervical spine, left shoulder, psychological and psychiatric injuries (Statement of claim (‘SOC’), 17 November 2022 at [5])

8. [8]

   The defendant does not admit to paragraph 5 of the statement of claim which relates to causation (Defence, 12 February 2021 at [5]).

9. [9]

   The plaintiff relied upon his evidentiary statement dated 19 February 2021 and a further evidentiary statement dated 23 December 2022. He gave evidence and was subject to lengthy cross examination.

10. [10]

    The evidentiary statements are those from Jessica Langdon, Emily Langdon, Caitlyn Langdon, the daughters of the plaintiff. As did Michelle Burgess, the plaintiff’s current partner and Mark Howes and Mark Owens, the latter two being the plaintiff’s friends and associates.

11. [11]

    The plaintiff relied upon, medico-legal reports from, orthopaedic surgeon, Dr Peter Moran and vascular and pain physician, Dr Peter Blombery as well as psychiatrist Prof Lorraine Dennerstein.

12. [12]

    The defendant relied upon medico-legal reports from Dr Brett Courtenay Orthopaedic Surgeon, Dr Seamus Dalton physician in rehabilitation medicine and the report of Dr Doron Samuell psychiatrist.

Background

1. [13]

   The plaintiff was born in 1961. He was 56 years old at the time of the incident.

2. [14]

   From 1974 to 1978, he attended Parkdale High School. He completed year 11 in 1978, but failed his final exams because of time taken off from school to assist his mother while his father had been ill.

3. [15]

   While at school, the plaintiff played AFL, cricket, and worked part time from 1975 in the boning room at an abattoir.

4. [16]

   After completing school, the plaintiff went to work full time in various abattoir’s performing manual tasks.

5. [17]

   In 1980, the plaintiff took two weeks off work, following a back injury from which he fully recovered.

6. [18]

   In 1981, the plaintiff had a second full time job as a tradesman assistant for the newspaper which he would perform after his job at the abattoir.

7. [19]

   In 1983, the plaintiff met his ex-wife, with whom he had three daughters.

8. [20]

   In 1984, (33 years prior to the incident that is the subject of these proceedings). the plaintiff injured his left shoulder in the boning room of an abattoir when he was knocked to the ground by a freezer door that came off its hinges. As a result of the injury, the plaintiff was not able to work for approximately three to four months. Workers’ compensation was awarded in the form of a lump sum payment. He says he fully recovered from this left shoulder injury.

9. [21]

   In 1984, the plaintiff injured his left wrist from a fall from which he fully recovered.

10. [22]

    In about 1985, at age 23, the plaintiff purchased a tipper truck, trailer, and bobcat. The plaintiff started a bobcat business and continued to work part time in the boning room. By 1987, the plaintiff was working full time in his bob cat business.

11. [23]

    In 1987, he married his partner Wendy, with whom he would go onto have three children with: Jessica, Emily and Caitlyn.

12. [24]

    Around 1989-1991, the plaintiff also started a landscape supply business with his brother and nephew, but it was not successful.

13. [25]

    In 1996, the plaintiff branched into the skip bin business.

14. [26]

    In 1999, the plaintiff and his then wife, purchased the 5-acre, XXX Road Property at Cranborne and undertook renovations. In 2004, the plaintiff separated from Wendy.

15. [27]

    Between 1996 and 2010 the plaintiff’s business was contracting with the City of Kingston.

16. [28]

    In 2002, the plaintiff experienced some lower back pain and took a week off work to heal. He rested, took some pain relief, he says that he made a full recovery.

17. [29]

    The plaintiff was cross-examined about this injury to his lower back in 2002, twenty years prior to the subject incident, and about an attendance at Frankstown hospital (T62.37). It was the plaintiff’s evidence (T62.40):

18. [30]

    Additionally, he adequately explained the non-reporting of his 2002 back injury to the medico-legal experts (T53.2-10):

19. [31]

    In 2005, the plaintiff’s business began contracting with Sunnybank Horticulture. This work steadily increased over time and by 2012, the plaintiff was carrying out all of Sunnybank’s excavation work, rubbish removal and landscape preparations.

20. [32]

    In 2006, the plaintiff met his current partner, Michelle Burgess. They subsequently moved in together at the XXX Road Property, Cranborne, Victoria.

21. [33]

    In February 2010, the plaintiff consulted Dr Jenkins (‘GP’) about his neck pain and migraines. The plaintiff’s daughter had been struggling following the untimely death of her friend, and the plaintiff had been dealing with elevated stress because of this as well as financial pressures. The plaintiff was unable to recall aspects of the consultations, on the basis that consultation had occurred 13 years prior during a stressful period for his family.

22. [34]

    From 2010 to 2016, the plaintiff’s business was employed by developer Dr Effat Farag to perform a variety of services including excavation and bin collection. The developer maintained an array of companies that he would contract under for each new project. Dr Farag would subsequently default on payment to various contractors and then avoid liability by entering each of his companies into voluntary liquidation. The caused the plaintiff to suffer a large financial loss.

23. [35]

    In December 2015, the plaintiff took a week off work citing lower back pain and then returned to working full time.

24. [36]

    In April 2017, the plaintiff scratched an eye when he walked into a branch. His eye fully recovered.

25. [37]

    By 2017, the sub-contracting work with Sunnybank continued to expand. In August 2017, Sunnybank obtained a 6-year contract with the city of Casey.

26. [38]

    Prior to his injury on the cruise, the plaintiff enjoyed water-ski racing. In 2007 he obtained a medical certificate for ski racing Australia, a mandatory requirement for obtaining permission to take part in ski racing events. He was also involved in horse racing, having gained his stable hand licence in 2012.

27. [39]

    In June 2017, the plaintiff’s house unexpectedly flooded when a braided hose burst in an upstairs bathroom. The consequent flooding caused a serious mould issue within the house. There is still an ongoing legal dispute with the insurer.

28. [40]

    Prior to the cruise, the plaintiff says that he was working full time without any restrictions and was in a long-term relationship with Michelle. The plaintiff claims that he did not have any debilitating issues regarding his neck or left shoulder. He also claims that he did not experience headaches and had no psychological illness or disability. The plaintiff says that he was functioning normally, happy and fit and he had the reasonable expectation of a long gainfully employed career.

29. [41]

    It is convenient that I now record my findings of the injuries sustained in the cruise incident (‘first incident’) and the second injury about one month later in the bathroom of Trios Sports Club (‘the club’). These incidents (‘the bathroom incident’) form the basis of my findings on causation.

30. [42]

    At about 3.30pm on 19 November 2017, the plaintiff, while a passenger on a 10-day cruise aboard the defendant’s cruise liner, sustained an alleged injury when the step that he tread on to descend into a pool area broke and fell away causing the plaintiff to drop, unexpectedly and suddenly, onto a tiled area approximately 30cm below.

31. [43]

    It is the plaintiff’s evidence that he dropped vertically landing heavily onto the balls of his feet and claims that he experienced a jolt or jarring which caused pain in his neck and shoulders.

32. [44]

    The incident was recorded on closed-circuit television (‘CCTV’) which was shown at the trial (CB Tab 7.2). There are also photographs of the broken step (CB.488-494).

33. [45]

    After viewing the CCTV footage numerous times, I make the following factual findings in relation to the cruise incident that occurred on 17 November 2019:

    1. (1)

       As the plaintiff was taking his first step onto the pool deck surround, he put his left foot first and then bringing his second foot down on the step, when the long wooden plank that was a step broke. At that time, his right arm was hovering just above the top right railing.

    2. (2)

       While the plaintiff was still standing upright when the step gave way, he descended a short distance, estimated to be a maximum of 30 cm and landed on both his feet. The momentum caused by the incident caused his torso to move a little forward.

    3. (3)

       When the plaintiff landed on both feet, he still remained upright. His left arm moved to rest onto the railing on the left, while his torso twisted counter clockwise.

    4. (4)

       The plaintiff then took four to six small hobbling type steps to the left in order to observe the broken wooden step. In the CCTV, he points to someone not in the pool, but in his sight (whoever that person is not viewable in the CCTV footage). After a pause he seems to be making an assessment as to how to go about picking up the plank. He did not hit his neck nor his left shoulder.

    5. (5)

       The plaintiff did not fall or land on his left side.

    6. (6)

       The plaintiff then bent over and picked up the long wooden plank with his right arm. He then uses both arms to rebalance the long wooden plank to an almost horizontal position, so he could manoeuvre the wooden plank approximately 90 degrees to the right and position it on the side of the pool.

    7. (7)

       The plaintiff then briefly performed a small jig or dance type movement.

    8. (8)

       He did not need assistance to get out of the pool.

    9. (9)

       I accept his evidence that he sat in a chair by the pool for about 40 mins.

34. [46]

    These factual findings form the basis of my opinions. At 4:20 pm, he reported pain in his left ankle, neck and left shoulder. On the patient registration form, his main complaint was recorded as “neck and ankle”.

35. [47]

    The plaintiff’s evidence as to what occurred after the incident as follows. He was able to get out of the pool without any assistance. He sat in a chair by the pool for approximately forty minutes before attending the ship’s medical clinic where he reported pain at the left ankle, neck, and left shoulder. At about 4.20pm, the plaintiff informed a security officer, Ms Amy Graham, who had witnessed the incident that “he was going to pop into the medical just in case as his shoulder was now hurting” (CB.495).

36. [48]

    At 4:43pm, the plaintiff attended the ship’s medical clinic at about 4.43pm. At about 4.36 pm, he completed the patient registration form (CB.504-505). His main complaint recorded:

37. [49]

    On the second page of the registration form (CB.505), signed by the plaintiff and dated 18 November 2017, the plaintiff ticked the following boxes in response to the question “Do you have any of the following symptoms?”:

38. [50]

    At 4:43pm, the cruise’s medical clinic records (CB.499 – 503) at 4.43 pm:

39. [51]

    At about 4.46 pm the plaintiff signed a ‘Statement of Accident’ (CB.496), noting that the matter was reported to “Youth Security” at about “3.30 pm roughly” (CB.496).

40. [52]

    While the plaintiff ticked boxes for symptom of tiredness, dizziness, neck swelling and joint aches or pain and stiffness. He denied the other symptoms, namely:

41. [53]

    At 5.14pm on the day of the incident, the plaintiff was examined by Dr Rainer Guenzel, the ship’s medical practitioner, who recorded:

42. [54]

    At 5.18pm on the same day, Dr Guenzel recorded:

43. [55]

    The plaintiff was provided with paracetamol tablets, 500 mg and directed to take “2 Pills every six (6) hours staring Nov 19, 2017 17:16UTC + 10:00 for 1 week(s)” (CB.501).

44. [56]

    The plaintiff says that he continued the cruise but in pain (T45.6-7; T45.13-19). The Panadol prescribed did not resolve his symptoms (T44.13-14). However, the plaintiff did not request a stronger form of analgesic medication.

45. [57]

    Following the incident, the plaintiff was able to participate in activities as part of the cruise including snorkelling and day trips (T1.46-50).

46. [58]

    The plaintiff said he complained to his daughters he was in pain, but he did not complain to the defendant’s staff.

47. [59]

    On 24 November 2017, the plaintiff completed the cruise and disembarked from the ship in Brisbane, Queensland.

48. [60]

    The plaintiff attended a cricket match in Brisbane, before returning to Melbourne by plane on Saturday night (CB.177), arriving in Melbourne on the evening of 25 November 2017.

49. [61]

    The plaintiff claims that he resumed work upon his return to Victoria but was only performing light duties. There is no medical certificate in evidence to support the plaintiff’s need to do light duties immediately upon his return.

50. [62]

    On 22 August 2019, the plaintiff’s GP, Dr Paul Jenkins stated in a report that the plaintiff provided the following history:

51. [63]

    The above history recorded to Dr Jenkins does not accord with his report of the incident to those employed by the defendant as set out earlier in this judgment.

52. [64]

    On 4 December 2017, Dr Jenkins gave a referral to the plaintiff to obtain an MRI scan. The plaintiff did not undergo the MRI until 29 December 2017 (CB.597). However, by the time the MRI was conducted after the bathroom incident that occurred.

53. [65]

    On 9 December 2017, the plaintiff attended the emergency department of Frankston Hospital, due to an episode where the plaintiff lost consciousness at the Fountain Gate shopping centre (T51.20-41). The discharge summary of Frankstown hospital refers to the plaintiff having neck and shoulder pain (CB.507).

54. [66]

    Sometime between the 4 December 2017 to 21 December 2017, the plaintiff underwent an x-ray and CT scan of the cervical spine at the hospital.

55. [67]

    I accept that during the period from 19 November 2019 to 21 December 2017, the plaintiff was capable of and performed the following activities, snorkelling, participating in onshore activities and day trips in Papua New Guinea as part of the subject cruise. He spent the full day at a test match at the Gabba cricket ground, to do so he took a commercial flight from Brisbane to Melbourne, walked around the Fountain Gate shopping centre and then attended a social Christmas lunch at a bar with friends on 21 December 2017, where the bathroom incident occurred.

56. [68]

    There are no witnesses of the plaintiff’s bathroom incident that occurred in the bathroom on the 21 December 2019, some weeks after the incident on the cruise.

57. [69]

    The plaintiff had attended a Christmas party at the club. After lunch, the plaintiff went to the bathroom toilet cubicle. He was found approximately 45 minutes later.

58. [70]

    What has been factually substantiated in the bathroom incident is as follows:

59. [71]

    The plaintiff was found fully dressed. The plaintiff had fallen with enough force to cause the porcelain bowl of the toilet to break.

60. [72]

    The plaintiff’s evidence is that he only remembers what happened after he had woken up in the cubicle (T.59.45).

61. [73]

    The plaintiff gave evidence that when he gained consciousness, he remembered two or three people, one of which he believed to be a security guard yelling to him to unlatch the cubicle door. He describes making three attempts to unlatch the lock but failing three times and falling back, eventually smashing the toilet bowl.

62. [74]

    A friend’s wife drove him home. He was taken to hospital by one of his daughters. At the hospital, the plaintiff’s blood alcohol level that was recorded was 0.133, a considerably high reading.

63. [75]

    On 21 December 2017, the plaintiff attended a lunchtime Christmas function at the club. After a while during the lunch, the plaintiff visited the bathroom. After 45 minutes, the plaintiff was found unconscious in a toilet cubicle.

64. [76]

    The plaintiff’s evidence is as follows:

65. [77]

    When the plaintiff was found, he was fully clothed and sitting on the toilet seat. The plaintiff does not know the force with which he collapsed or as to whether he struck his head or either shoulder against the back or side walls of the cubicle as he fell. The plaintiff’s oral evidence confirmed as much when he stated:

66. [78]

    The plaintiff’s evidence is when he regained consciousness, he sustained three impacts in quick succession when he:

67. [79]

    The plaintiff was assisted from the Club by his friends. He was driven home by the wife of one of his friends. Once the plaintiff arrived home, he was immediately taken to the Emergency Department of the hospital by his two daughters (T58.31-32), where he was admitted that afternoon and remained in hospital overnight. The hospital clinical notes records show a fracture to the right orbital as “not acute”. The plaintiff says that while in hospital, he was not told that the right orbital fracture was caused by the bathroom fall.

68. [80]

    After the bathroom fall, the plaintiff’s x-ray revealed a non-acute orbital fracture that may or may not have been linked to the incident. After the fall the plaintiff was subjected to extensive medical investigation, but no cerebrovascular conditions were found to account for the episode.

69. [81]

    Because of the plaintiff’s inebriated state and his lack of consciousness and it follows, his lack of actual memory, his version of events is not accepted by this court, as the plaintiff bears the onus of proof and he had failed to discharge it: see section 5E of the Civil Liability Act.

70. [82]

    It is convenient that I now record my findings on the plaintiff’s credibility.

71. [83]

    I carefully observed the plaintiff while he was giving evidence and during cross examination. I reluctantly concluded that the plaintiff tailored his evidence to portray himself to this court in his most favourable light. The plaintiff gave inconsistent accounts as to how the cruise incident occurred to the medical experts and to the court, some of these examples given below are minor when viewed overall, they illustrate the unreliability of the plaintiff’s evidence.

72. [84]

    When reviewing the histories from the plaintiff that include health professionals. I have approached them with the usual caution for the reasons set out in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] (cited with approval in Mason v Demasi [2009] NSWCA 227 at [2]).

73. [85]

    I do not accept the evidence given by the plaintiff on these following topics: firstly, his account of the incident on the cruise which took place on the 19 November 2017. I carefully viewed the CCTV footage many times, the plaintiff did not drop down onto the pool deck on his left side, nor did he hit his left shoulder. Further, I do not accept his version of the incident in the bathroom cubicle which took place on 21 December 2017.

74. [86]

    The plaintiff provided medico-legal experts where he provided differing versions of events regarding the cruise incident.

75. [87]

    Prof Dennerstein’s report dated 22 June 2018 records at (CB.176-177) that the plaintiff described the incident to her in the following terms:

76. [88]

    The above description was provided to Prof Dennerstein in consultation on 20 June 2018, approximately 8 months after the incident, but before the CCTV had been provided to the plaintiff’s legal representatives. It is one of the earliest reports of the incident that the plaintiff has provided in connection with the legal proceedings. The plaintiff agreed the account of the incident as a reasonably accurate description of the incident as depicted in the CCTV footage. On my factual findings, there was no “security man who assisted the plaintiff back to his chair.”

77. [89]

    During cross-examination as to his history provided to Prof Dennerstein, the plaintiff did not accept that the above was not an accurate account of the cruise incident and provided the following evidence:

78. [90]

    However, his account changed slightly in attempt to reconcile it with the CCTV footage.

79. [91]

    As set out earlier in this judgment, the plaintiff did not fall or land on his left side. The plaintiff did not require the assistance of other people to get up and there is no evidence that the plaintiff required any assistance to return to his chair following the incident and no security guard came over to him. This is illustrative of the plaintiff’s consistent attempts to advocate a position in the belief that it will support his case, even when confronted with an obvious inconsistency.

80. [92]

    Prof Dennerstein’s and Dr Samuell’s evidence in relation to the plaintiff’s inaccurate history is as follows:

81. [93]

    The plaintiff was next assessed by Professor Teddy, neurosurgeon on 9 November 2021. Professor Teddy records the plaintiff’s description of the incident in the following terms:

82. [94]

    The CCTV footage of the incident does not show the plaintiff rolling to the left.

83. [95]

    The plaintiff was assessed by Dr Peter Moran, orthopaedic surgeon in October 2021. Dr Moran recorded the plaintiff’s description of the incident as follows:

84. [96]

    The plaintiff was examined by Dr Peter Blombery, consultant physician with specialisation in pain medicine, on 8 November 2021. The description recorded by Dr Blombery is the first instance where the plaintiff does not include in his account the description of “rolling” or falling onto his left side.

85. [97]

    However, Dr Blombery recorded that the plaintiff fell approximately 60 cm during the incident and, in his supplementary report dated 3 October 2022, after viewing the CCTV footage of the incident, Dr Blombery states that the plaintiff, “would have fallen a maximum of 30 cm as he did not go down even to the level of his knee.” Under cross-examination, the plaintiff accepted that the step is no higher than 30 centimetres from the tiles below it (T1.42.46 – 47).

86. [98]

    The above examples drawn from the plaintiff’s examinations, oral evidence, and CCTV footage, illustrate the plaintiff’s willingness to alter the story of how the incident occurred.

87. [99]

    On examination, after the cruise incident, the medical practitioner recorded a correct history as to how the incident occurred and no direct head or neck trauma was reported. No fall from excess height. No loss of consciousness reported. Shortly after incident, guest noticed mild pain in his left foot. 40 minutes post-incident experienced mild discomfort in bilateral trapezius muscle area.

88. [100]

    Dr Courtenay’s report notes that, during the formal part of the examination the plaintiff displayed significant restrictions of movement, however in the informal part of the interview showed no signs of noticeable restrictions or pain (CB. 207).

89. [101]

    The final discharge summary from the Hospital following the plaintiff’s admission on 24 November 2019, records under the heading “Principal Diagnosis” that the plaintiff “complains unable to move neck but moving freely during review” (CB 88).

90. [102]

    In his report dated 9 November 2021, Professor Teddy noted in relation to the plaintiff that:

91. [103]

    Prior to this next exchange recorded on the transcript, I carefully observed the plaintiff while he was giving evidence and being cross-examined while in the witness box. To my observation the plaintiff was moving his neck freely. Hence my comment recorded in the transcript. The plaintiff claimed, lack of ability to move his neck more freely, was also contradicted during his oral evidence in court. The transcript reads as follows:

92. [104]

    It is my view that the plaintiff was exaggerating the lack of movement is his neck and did a very bad job of it. I do not accept his evidence that has restricted movement in his neck.

93. [105]

    There are further inconsistencies evident in the account given by the plaintiff regarding his fall in the bathroom on the 21 December 2017.

94. [106]

    There are inconsistencies with the plaintiff’s evidence concerning his alcohol consumption on the day. The clinical notes taken from the Hospital recorded that the plaintiff usually drinks 1 – 2 beers each Thursday. However, on 21 December 2017 when he had the bathroom fall, his blood alcohol level was 0.133 (CB. 519).

95. [107]

    In the plaintiff’s evidentiary statement dated 19 February 2021, the plaintiff, stated that by the time of the blackout, “I had not been drinking heavily at the time; I only had about 3 beers and was halfway through my lunch” (CB.404, para 34).

96. [108]

    In the plaintiff’s latter evidentiary statement dated 23 December 2022, he stated that he had consumed “about 8 beers throughout the day” (CB, 415, para 30). This account is more consistent with the Hospital clinical notes that stated that he drank 4 stubbies and “4 pots” (CB.514).

97. [109]

    The plaintiff’s oral evidence on the amount of alcohol that he had consumed up to the blackout on 21 December 2017 was as follows:

98. [110]

    The handwritten hospital progress notes dated the following day relevantly record the following:

99. [111]

    The relevance of the above entry is that from the incident on the cruise up to 21 December 2017, the plaintiff’s symptoms of pain at the neck and left shoulder are mild. The plaintiff did not experience any radiation of pain to the legs or arms, describes the sensation in the neck as a “lump” and “stiffness”, wakes up with a mild headache in the morning; and takes two Panadol. The progress notes of Peninsula Health from the plaintiff’s attendance at the Hospital on 21 December 2017 relevantly record the following:

100. [112]

     The extract refers to a mechanical fall one week before the current presentation to the hospital and refers to the incident separately, such that the reference to a “mechanical fall” that occurred one week prior, is clearly not the same incident as “1/12 pt fell on cruise ship”. The two falls are recorded as distinct events.

101. [113]

     Other than Dr Dalton, the plaintiff did not disclose that he undertook a holiday to Bali in 2019 during any medicolegal assessment. While on that holiday, the plaintiff rode a motor scooter, which required the turning of his head, and also participated in snorkelling.

102. [114]

     The plaintiff’s evidentiary statement at [81] stated, “I don’t think I can now travel overseas or long distances due to my injuries as it causes me too much pain” (CB.421). However, he undertook a trip to Bali in 2019. I find this surprising.

103. [115]

     During cross-examination, the plaintiff was shown a photograph of himself with three women, that he accepted was at the Melbourne Cricket Ground. The photo is dated 12 January 2020 and captioned, “Ready for a Big Show – with Jess Langdon and Cait Langdon at Melbourne Cricket Ground.”

104. [116]

     Comments that the plaintiff himself has made on that photo include “Stoinis is on fire” and “147 not out”. There is also a video of the MCG in the comments section under the comment “147 not out”, that was posted on the plaintiff’s Facebook profile.

105. [117]

     It was put to the plaintiff that that photo was taken in January 2020 in the following terms:

106. [118]

     The cricket match in which Marcus Stoinis scored 147 not out, was played on 12 January 2020, being the date of the subject picture. That cricket match was played at the Melbourne Cricket Ground, which is the same ground that the plaintiff has tagged. His daughter agreed.

107. [119]

     The plaintiff was shown further photographs [Ex 3] that depict him working at a job site. The plaintiff identified the picture as having been taken in 2017. The plaintiff did not correct his evidence about the date of this picture until it pointed out by the defendant that the people in the picture were wearing masks in response to precautions introduced to guard against COVID-19, which significantly post-dates 2017.

108. [120]

     As previously stated, I have reservations as to the reliability of the plaintiff’s evidence where it is uncorroborated. It is my view that the plaintiff sought to portray himself in a favourable light so has tailored his evidence to do so.

109. [121]

     As previously stated, the defendant has admitted a breach of duty of care as set out in sections 5B and 5C of the CLA. Causation is the most highly disputed issue in these proceedings.

110. [122]

     Section 5D and 5E of the CLA sets out the relevant test for causation. Section 5D and 5E of the CLA read:

111. [123]

     As the High Court explained in Wallace v Kam (2013) 250 CLR 375 at [14], [16]:

112. [124]

     In Adeels Palace Pty Ltd v Moubarak [2009] HCA 48, the High Court stated at [41]-[44]:

113. [125]

     The plaintiff has submitted that causation has been established both medically and factually on the following bases: For seven and a half years before the injury on the ship, the plaintiff worked full time in his excavation, skip bin and landscape preparation business. He was also involved in horse racing, water skiing, camping and travel, and was able to manage all indoor and outdoor related tasks (CB.424). Since February 2010, the plaintiff had no history of neck complaints. The neck issues around February 2020 were caused by stress (T75.30-50). The radiography evidence supports the conclusion that prior to the incident on the ship, the plaintiff had pre-existing but asymptomatic degenerative changes in his cervical spine (CB.737). The incident on the ship involved a sudden, unexpected drop onto a tiled surface (CB.414). The plaintiff attended the ship’s medical clinic within an hour of the incident complaining of neck pain (CB.499-501). The plaintiff explained in evidence that for the remainder of the cruise, he experienced headaches and neck pain (CB.415).

114. [126]

     Upon returning home, the plaintiff consulted his general practitioner Dr Paul Jenkins about his neck pain and booked the first available appointment on 4 December 2017 (CB.415). He provided a history of the step collapsing and landing awkwardly (CB.595; T54.1-10).

115. [127]

     On 9 December 2017 (5 days after consulting Dr Jenkins), the plaintiff experienced dizziness while at Gateway Shopping Centre (T54.50-55.3). The plaintiff did not fall but was forced to sit down. At the Hospital, the plaintiff complained of neck pain and left shoulder pain. The defendant’s submissions place heavy emphasis on the bathroom fall of 21 December 2017. There were no witnesses (CB.513).

116. [128]

     The following is known about the bathroom fall. The plaintiff was at the club for a Christmas lunch. The plaintiff had some beer, possibly eight (although his evidence is not clear on this point). The plaintiff went to the bathroom and passed out. The plaintiff was found sometime later in the bathroom unconscious. Records suggest the plaintiff was found about 45 minutes later, but the exact time is unknown. The plaintiff went home, and his daughter Jessica subsequently took him to the hospital. [I have already set this out in detail earlier in this judgment].

117. [129]

     During cross examination of the plaintiff regarding the bathroom incident, the plaintiff’s evidence was that he did not know if he had hit his head on the wall or the toilet seat after he blacked out in the cubicle, he did however deny hitting his head at all (T59-61).

118. [130]

     In cross-examination, the plaintiff denied having any facial injury following the bathroom incident (T59.19-26):

119. [131]

     I interpose, tellingly, “his guess” was what had occurred in the cubicle and how the toilet bowl had been broken (T61.10-20):

120. [132]

     The plaintiff admitted that he had no memory of what occurred when he had passed out but appeared to be sure of how the toilet cistern broke (T61.25-30):

121. [133]

     According to the hospital clinical records, when he presented on examination, the plaintiff was alert and oriented in time and place. He presented with a Glasgow Coma Scale of 15. The records stated that the plaintiff had been experiencing recurring headaches, increasing fatigue and bouts of drowsiness since the cruise incident. The plaintiff was thoroughly examined at the hospital. There was no record of any facial bruising, abrasions, or swelling in any of the clinical notes from the hospital (CB.514).

122. [134]

     The hospital discharge summary recorded the following (CB.513):

123. [135]

     According to the plaintiff, there is no reliable evidence that the plaintiff sustained a head strike, or the toilet being smashed by the plaintiff’s head, but the onus on the plaintiff to prove, on the balance of probabilities what actually occurred. A CT scan of the head and cervical spine revealed no subdural haematoma which excluded a head injury.

124. [136]

     The defendant relied upon an injury to the medial orbital wall of the right socket as evidence of a head strike on the bathroom incident. A minimally displaced fracture at the medial orbital wall on the right which did not appear acute was however noted within the records:

125. [137]

     The CT of the brain and cervical spine reported (CB.524 – 525):

126. [138]

     There is no evidence that the fracture of the medial orbital wall was of recent onset or that it occurred during the bathroom incident. It was not acute. There is no evidence of facial structures. The evidence does not support a finding of any head injury in the incident in the bathroom.

127. [139]

     The plaintiff cast the medical reports in their most favourable light.

128. [140]

     According to the plaintiff, there is no evidence to support the proposition expressed by Dr Courtenay that the plaintiff struck his face. The evidence is that the plaintiff was suffering from neck and left shoulder pain and headaches from the time of the incident of on the cruise ship. There is no evidence of any facial fractures or an eye injury. Also, there is no evidence of cervical pain at C7.

129. [141]

     The unchallenged evidence of Ms Burgess is that when the plaintiff returned from the cruise, he told her about the incident on the cruise ship and that he hurt his neck and left shoulder. The observations of Ms Burgess are mirrored by the evidence of his three daughters and by Mr Howes and Mr Owens. There is no submission by the defendant that any of these witnesses are untruthful or unreliable. However, their evidence gets to what the plaintiff told them. I again interpose here, I place little weight on this evidence as they are very general statements of little probative value and do not reflect the opinions of the medical experts and his version of events given to them, although inconsistent.

130. [142]

     The most probable explanation for the onset of neck symptoms is explained by Dr Peter Moran, orthopaedic surgeon in his report (CB.69) and oral evidence (T250.5-11 and T251.15-25) and by Dr Blombery, consultant physician in pain medicine in his report (CB.75-76) and in his oral evidence (T276.40-45, T277.30-40). They opine that it is an aggravation of pre-existing but asymptomatic degenerative changes in the cervical spine caused by the jarring effect of the sudden, unexpected vertical drop onto the tiled surface when the step collapsed.

131. [143]

     Both Drs Moran and Courtenay also accept that, at the time of the incident on the cruise ship, the plaintiff had asymptomatic degenerative changes in his cervical spine (T259.43-50). Dr Moran opines that asymptomatic degenerative symptoms can be aggravated and become painful. Dr Moran (T252.0-10) opined that there is no other likely explanation for the onset of the pain, so close to the incident, in the circumstances, other than the drop triggering the onset of symptoms.

132. [144]

     However, Dr Courtenay does not accept an aggravation in this instance, but he does not provide any rational explanation for the onset of symptoms following the sudden unexpected vertical drop onto the tiled surface.

133. [145]

     Dr Dalton accepted after viewing the CCTV, that it is conceivable there was a jarring and aggravation of the pre-existing degenerative changes, but he would have expected this to resolve within days or weeks (CB.225, T277.20-25, and 45). The plaintiff’s pain however did not resolve within days or weeks.

134. [146]

     The headaches are a common consequence of neck injury and there is no probable cause for the onset other than the neck injury (CB.514).

135. [147]

     As already stated, the plaintiff complained that his left shoulder was hurting to Ms Graham (CB.495), his GP, when consulting him on 4 December 2017 (CB.595) and when the plaintiff attended the hospital on 9 December 2017, it is recorded that he reported pain in his neck and left shoulder (CB.507).

136. [148]

     The only prior incident involving the left shoulder was 33 years before the incident on the ship when the plaintiff was knocked to the ground by a falling freezer door (CB.431). The plaintiff was off work for about 3-4 months before returning to work full time and without any further complaints about the left shoulder until the incident on the ship. This has not been challenged nor contradicted.

137. [149]

     An MRI dated 8 May 2018 revealed subscapular tendinopathy likely associated with mild adhesive capsulitis (CB.738).

138. [150]

     The GP referred the plaintiff to Dr Richard Large, orthopaedic surgeon and upper limb specialist. The plaintiff saw Dr Large on 20 June 2018 who considered that the plaintiff likely injured his left shoulder on the cruise ship. Examinations in December 2018 and January 2019 confirmed the evolution of a subsequent frozen left shoulder. The report of Dr Large was received into evidence without objection (CB.601). The plaintiff has since undergone surgery to his left shoulder at the recommendation of Dr Large. The surgery in March 2021 has not relieved the symptoms of pain. The surgery was delaye because of delays in the public hospital system. I again interpose, this submission does not fully record the opinion of Dr Large. I again interpose, this submission does not fully record the opinion of Dr Large.

139. [151]

     The opinion of Dr Dalton is conditioned by his interpretation of what he viewed on the CCT particularly after what he describes as a stumble and says the plaintiff:

140. [152]

     As I observed it, from the CCTV plaintiff “sort of hobbled” (T39.5). I accept that the plaintiff denied that he appeared to be doing a jog or dance (T39.50).

141. [153]

     Dr Dalton never physically examined the plaintiff. The views expressed by him were based on medical reports provided to him as well as the CCTV footage of the plaintiff.

142. [154]

     However, Dr Dalton accepted that it is plausible the adhesive capsulitis was developed or was aggravated because of the incident on the cruise ship.

143. [155]

     He believed that the incident in the toilet cubicle on 21 December 2017 may have caused the shoulder injury (CB.226), but Dr Blombery disagreed pointing out that the incident on the toilet had nothing to do with the left shoulder.

144. [156]

     Professor Lorraine Dennerstein, psychiatrist, has assessed the plaintiff twice. She has diagnosed the plaintiff with adjustment disorder with mixed anxiety and depressed mood. She noted that a not insignificant contributing factor to his diagnosis has been the plaintiff’s pain, limitation of functioning, loss of work, diminished capacity for social activities, loss of recreational pursuits and breakdown in his relationship with his partner Michelle Burges (T218.5-20, T228.20, T229.0-5). Prof Dennerstein noted the second time she assessed the plaintiff in December 2021, his depression was more sustained (T219.15-20).

145. [157]

     In her oral evidence, Ms Burges, the plaintiff’s partner explained the changes in the plaintiff following the incident (T187-188). Similar evidence was given by the plaintiff’s daughters and his friends Mark Howes and Mark Owen. The plaintiff’s stress relating to the unfortunate flooding of his family home some months prior to the stressors following the incident on the ship, was also, in Prof Dennerstein’s opinion, a material contributor to the onset of the diagnosed psychological disorder.

146. [158]

     The unchallenged evidence from family and friends is that the plaintiff was psychologically well before the incident of the ship.

147. [159]

     The reason Prof Dennerstein should be preferred to Dr Samuell is three-fold:

     1. (1)

        First, Dr Samuell does not give sufficient weight to the real psychological impact of the stressors referred to and relied upon by Prof Dennerstein following the incident on the ship.

     2. (2)

        Secondly, to prefer Dr Samuell, the court would need to reject the unchallenged and uncontradicted evidence of family and friends as to the plaintiff’s difference in psychological state pre and post incident on the cruise.

     3. (3)

        Thirdly, Dr Samuell does not properly consider whether the stressors arising from the incident on the ship were a necessary condition of the materialisation of the psychological illness as required by s 5D(1) Civil Liability Act 2002 see Strong v Woolworths Limited [2012] HCA 5 at 20 and also see Zanner v Zanner [2010] NSWCA 343 at [11].

148. [160]

     The plaintiff has proved that as a consequence of the matters referred to by Associate Prof Dennerstein, that he has a recognised psychiatric illness.

149. [161]

     While it is the plaintiff’s case and Prof Dennerstein’s opinion, that he has suffered a recognised psychiatric illness. Even if the court is not satisfied that he has suffered consequential mental harm as defined in s 27 CLA and this is recoverable as a component of his award for non-economic loss. The requirement for a recognised psychiatric illness under s 31 Civil liability Act 2002 only applies to pure mental illness, and not a consequential condition of mental harm.

150. [162]

     As it turns out, I have made a finding below that the plaintiff did not suffer mental harm that was caused by or exacerbated by the cruise incident. That means that mental harm does not form a consequential condition, so this component is not reflected in the award of his non-economic loss.

151. [163]

     The defendant submitted that causation is not made out factually or medically because:

     1. (1)

        On the balance of probabilities, it is more likely that a subsequent bathroom incident on 21 December 2017, in which the plaintiff collapsed and struck his head on a toilet bowl, colliding with the toilet bowl with enough force for the impact to have “smashed the toilet” was the cause of the plaintiff’s cervical spine and his left shoulder injury.

     2. (2)

        The bathroom fall is not legally or medically causally related to the incident.

     3. (3)

        To the extent the plaintiff’s expert evidence supports a causal link between the bathroom incident and the plaintiff’s alleged injuries and disabilities notwithstanding the bathroom fall, it is contaminated by:

152. [164]

     The defendant submitted that on a common-sense analysis, causation is not made out. The cruise ship incident that the plaintiff claims to have resulted in his injuries and subsequent pain only involved a small drop of approximately 30cm. Following the cruise incident, the plaintiff only made mild complaints to the cruise ships doctor. This is in stark contrast to the amount of physical force of the subsequent bathroom fall, which happened with enough power to smash a porcelain toilet bowl and probably fracture the plaintiff’s right orbital.

153. [165]

     The plaintiff relied upon the report of Dr Peter Moran, Orthopaedic surgeon, dated 18 November 2021. The defendant relied on the report of Dr Brett Courtenay, Orthopaedic Surgeon, dated 4 July 2022. They both provided a joint report dated 20 March 2023 and gave concurrent evidence.

154. [166]

     The expert orthopaedic surgeons gave different conclusions, as to the injuries that were caused by the incident.

155. [167]

     On 18 November 2021 Dr Moran conducted an examination of the plaintiff and reviewed a section of the contemporaneous medical records. He is of the opinion that the plaintiff has limited mobility through his left shoulder and neck.

156. [168]

     The orthopaedic surgeon identified a congenital abnormality of the shoulder referred to as ‘Sprengel’s shoulder’ and stiffness in the region (CB 67). In Dr Moran’s opinion, the plaintiff has developed “persistent neck and to a lesser extent upper back pain and left shoulder pain” (CB 68). Dr Moran also reports that there is evidence in the neck of a pre-existing age-related degenerative change that aligns with the plaintiffs age and occupational history (CB 68). He opined that the plaintiffs shoulder pain cannot be attributed to the presence of ‘Sprengel’s shoulder’ as the plaintiff has lived with this condition all his life with no prior issues or physical ailments related to it. Dr Moran believes that the shoulder pain is a result of a “post-traumatic phenomenon” (CB 68).

157. [169]

     Finally, Dr Moran says that, the plaintiff’s symptoms are attributed to the cruise incident, as there is no history of neck and shoulder pain prior to the pool incident. Dr Moran believes that the plaintiff could benefit from treatment such as hydrodilatation and intensive physiotherapy or in a rare case arthroscopic surgery. He is of the view that the plaintiff’s capacity for work has been severely diminished as well as his ability to enjoy physically demanding recreational, social, and domestic activities (CB 69).

158. [170]

     On 21 June 2022 Dr Courtenay interviewed and examined the plaintiff. Dr Courtenay observed that the plaintiff during the formal part of the examination displayed significant restrictions of movement, however in the informal part of the interview showed no signs of noticeable restrictions or pain. He describes the plaintiff as “freely moving his neck from left to right without any obvious signs of impairment” (CB 207). Dr Courtenay also observed the plaintiff’s “soft callosities” (CB 208) over his left and right hands, which indicates that Mr Langdon had been using his hands for physical work a lot more than he was claiming to do so (CB 208).

159. [171]

     Dr Courtenay commented on the inconsistencies of the plaintiff’s numerous accounts of his incident, given in several contemporaneous medical reports to those shown on the CCTV footage. He pointed out that the distance Mr Langdon ‘fell’ was much smaller than reported by the plaintiff, and he observed there was no head trauma and no actual fall on the ground.

160. [172]

     Dr Courtenay is of the opinion that in the absence of any head trauma related to the incident of the 19 November 2017 and no evidence of significant cervical jarring, there was no association with the original incident on the ship and the blackout event that occurred subsequently on the 9 December 2017.

161. [173]

     However, Dr Courtenay states the blackout episode that involved the plaintiff collapsing in a bathroom stall and losing consciousness for a period during a Christmas party, is the cause of his cervical spine issues. This fall may have also caused an orbital fracture to the plaintiff, as he struck and broke the toilet bowl when passing out. His blood alcohol level was 0.133 when tested at the hospital. The plaintiff himself reported drinking approximately 8 beers on that day. After the fall the plaintiff was subjected to extensive medical investigation, but no cerebrovascular conditions were found to account for the episode.

162. [174]

     Dr Courtenay stated, “I find it difficult to correlate why he should have taken 6 months for him to start getting significant problems with his left shoulder if it was related to that episode on the cruise ship” (CB 209).

163. [175]

     Finally, Dr Courtenay concludes that he does not believe that injuries are consistent with what was viewed on the CCTV footage, he describes the incident on the cruise ship as a “minor episode’ (CB 210). He does not think that it would be a contributing factor to his ongoing issues of pain relating to his neck and left shoulder. On the contrary, Dr Courtenay believes that the subsequent event where the plaintiff lost consciousness and broke his orbital during the Christmas party was the cause of the plaintiff’s cervical spine issues.

164. [176]

     Drs Peter Moran and Brett Courtenay provided a joint report dated 20 March 2023. The joint report contained the following relevant opinions:

165. [177]

     Dr Courtenay does not believe there was sufficient violence in the incident to cause the plaintiff to sustain the neck injury. Dr Moran disagrees as it his opinion that, on the basis of the plaintiff's age with some mild to moderate degenerative changes at a number of levels, it could have represented the possibility of a jarring incident to lead to later neck symptoms. [My emphasis].

166. [178]

     Dr Moran's assessment is aggravation of underlying degenerative change. Dr Courtenay agrees that there was degenerative change, but he does not believe there was an aggravation of symptoms.

167. [179]

     The experts agree that after the plaintiff had a blackout incident and, some time following that, the plaintiff relates the symptoms more to the left shoulder.

168. [180]

     The plaintiff may have jarred his neck and later developed a frozen shoulder which is neck related. The plaintiff had incidents where he felt dizziness. They do not believe that these incidents were related to the incident on the cruise.

169. [181]

     As the plaintiff’s time off work was predicated by dizziness and syncopal episodes, both experts do not believe there is any relationship between them and the incident on board the cruise. They also do not accept that the need for surgery in 2021 has anything to do with the incident onboard ship in 2017.

170. [182]

     The orthopaedic surgeons differ on the plaintiff’s future working capacity. Dr Courtenay is of the view that the plaintiff can engage in gainful employment whereas Dr Moran is of the opinion that the plaintiff can only do light physical work.

171. [183]

     During concurrent evidence in conclave, Dr Moran initially confirmed his opinion that the plaintiff’s symptoms are attributable to the incident on the cruise. He based this on a lack of symptoms pertaining to his neck or left shoulder prior to this incident (T3.250.8 – 13).

172. [184]

     Dr Courtenay believed that the incident identified on CCTV footage was not of sufficient violence to cause the initial asymptomatic conditions to become painful.

173. [185]

     Dr Moran notes that the incident is an unguarded, sudden change in direction. Specifically, Dr Moran states that:

174. [186]

     Dr Courtenay provided the view that there may have been some transitive muscular issues from the incident on the cruise, but the incident at the Christmas party where the plaintiff experienced a “far more dramatic” (T.265. 5) fall, according to Dr Courtenay was the real cause of the plaintiff’s ongoing structural issues of his neck and shoulder (T.265.5).

175. [187]

     With respect to the competing possible causes of the plaintiff’s complaints of injury, Dr Moran opines that:

176. [188]

     Further, the basis upon which Dr Moran disputes the likelihood of the plaintiff’s complaints being muscular lack sufficient precision. When he stated, “you do not get pain in the neck from muscle issues” (T.265.13).

177. [189]

     Dr Moran concedes that in the question of a causal link between the incident on the cruise and the plaintiff’s pain, one would have to factor in the fall on the 21 December as a “summation of forces” (T.255.15).

178. [190]

     Dr Courtenay has consistently held the opinion that the incident on the cruise did not warrant sufficient ‘violence’ to cause long term structural damage to the plaintiff. However, both doctors agree that the bathroom incident on 21 December 2017 did warrant sufficient ‘violence’ to cause long term issues to the plaintiff’s neck and shoulder.

179. [191]

     The plaintiff relied upon the reports of Dr Peter Blombery, Vascular and Pain Physician, dated 27 November 2021 and 23 October 2022 and the report of Prof Peter Teddy, neurologist, dated 9 November 2021. The defendant relied on the report of Dr Seamus Dalton, Consultant Physician in Rehabilitation Medicine, dated 16 May 2022 that of Dr Richard Large, the plaintiff’s treating Orthopaedic consultant, dated 11 October 2019. The latter report was not favourable to the plaintiff. Dr Large recorded that the plaintiff:

180. [192]

     It is Dr Blombery’s opinion that the incident on the cruise did not have anything to do with the plaintiff’s episodes with loss of consciousness.

181. [193]

     Professor Teddy conducted an interview of the plaintiff via teleconference so was unable to conduct a full examination. Prof Teddy was cautious of linking the incident on the cruise to the plaintiff’s current injuries and pain. He believes that the plaintiff could have aggravated a form of “modest cervical spondylosis” (CB. 90), but he describes it as “possible but uncertain” (CB.90).

182. [194]

     Prof Teddy does not believe the plaintiff’s ‘blackouts’ have a link to the incident on the cruise, stating that “no satisfactory explanation has been found for the reported blackouts” (CB.89). Finally, Professor Teddy recorded that the plaintiff reported to him that: “He had only ever seen two doctors in his life. He was as fit as a fiddle.”

183. [195]

     Dr Dalton provided a report dated 16 May 2022, after reviewing the CCTV footage and contemporaneous medical records. Dr Dalton does not consider it likely that the plaintiff sustained an injury to his cervical spine rather it is more likely that he suffered a muscular strain of his neck and trapezius muscles based on the CCTV footage and the medical records.

184. [196]

     Dr Dalton accepts that a jarring incident such as this may have caused a minor aggravation of any underlying degenerative changes, but based on his extensive clinical expertise, he considers that such an aggravation would resolve itself with or without treatment (CB 217).

185. [197]

     As Prof. Teddy is a neurologist, he did not participate in the joint report.

186. [198]

     In the joint report the expert physicians Dr Blombery and Dalton expressed the following opinions:

187. [199]

     Both experts agree that the plaintiff had some form of mild pre-existing pathology in his cervical spine. Both physicians agree that after witnessing the CCTV footage that the incident was unlikely to have aggravated any pre-existing conditions suffered by the plaintiff.

188. [200]

     The experts disagree on the plaintiff’s need for future medical care and treatment, subject to their reports on the condition of the plaintiff and his current injuries.

189. [201]

     Dr Blombery believes that an injury occurred in the cruise incident was caused by the jarring of the fall, possibly aggravating pre-existing degenerative changes to the cervical spine.

190. [202]

     Dr Dalton after watching the CCTV footage considers it more likely that the plaintiff suffered from some form of muscular strain. Dr Dalton does not believe that the plaintiff has suffered any residual disabilities as a result of the incident aboard the cruise.

191. [203]

     Regarding the left shoulder injury, Dr Blombery’s opinion is that the plaintiff sustained a minor injury to the left shoulder which resolved after a few weeks. Dr Dalton believes that there is no evidence to support that an injury occurred to the plaintiff’s left shoulder as a result of the incident aboard the ship. He bases his opinion on the CCTV footage and the contemporaneous medical reports. Dr Dalton further debunks the notion of the plaintiff developing pain due to the development of adhesive capsulitis or from aggravation of the plaintiff’s pre-existing Sprengel deformity.

192. [204]

     These experts disagree as to whether the plaintiff has continuing injuries as a result of the incident. Dr Blombery believes that the plaintiff will continue to experience pain in the affected areas, effectively developing chronic pain syndrome. Dr Dalton disagrees and believes that the plaintiff experienced what can be described as soft tissue injury with mild if any aggravation of any underlying condition that may be attributed to the cruise. Dr Dalton believes that any residual pain or injuries have been caused by subsequent falls and other factors that are not related to the one on the cruise.

193. [205]

     The physicians disagree on the plaintiff’s need for a future medical care and treatment, subject to their reports on the condition of the plaintiff and his current injuries.

194. [206]

     When giving concurrent evidence, the doctors both accepted that the incident on the cruise happened around 3.30pm on 19 November 2019. Both of them had viewed the CCTV footage. They both agreed that the plaintiff did not fall onto his left shoulder. Both orthopaedic surgeons agreed that the plaintiff’s congenital deformity of ‘Sprengel’s shoulder’ has no link to the incident on the cruise and is highly unlikely the source of the left shoulder and neck pain.

195. [207]

     As previously stated, Dr Blombery opined that the fall may have had a jarring effect triggering pain by aggravating a pre-existing but asymptomatic degenerative change in the plaintiff’s cervical spine.

196. [208]

     It is Dr Dalton’s view that the plaintiff’s pain was more likely stemming from the action the plaintiff performed when picking up the broken plank of wood. He believes the jarring event as less likely to have been the cause but nevertheless a conceivable one.

197. [209]

     Both orthopaedic surgeons agreed that the plaintiff may have suffered from adhesive capsulitis or “frozen shoulder’ which may have also caused the plaintiff’s neck pain, however Dr Dalton attributed the adhesive capsulitis to the fall suffered by the plaintiff in the bathroom incident and not the incident on the cruise.

198. [210]

     Both physicians agreed that the fall on the cruise would not have caused a flexion extension injury to the neck, or ‘whiplash’ type injury and that the ‘blackout’ events experienced by the plaintiff were not linked to the incident on the cruise ship, but rather the falls experienced by the plaintiff in the bathroom incident were more likely to have aggravated any pre-existing degenerative changes.

199. [211]

     Both orthopaedic surgeons were asked about the plaintiff’s abilities to perform tasks and activities after the cruise incident, like snorkelling, riding a motor bike and maintaining his gardens. Dr Blombery was of the opinion that this was possible as typically the severity of the neck pain may fluctuate throughout the day, Dr Dalton agreed with this proposition, but reiterated that he did not agree that this type of pain would have been caused by the incident on the cruise.

200. [212]

     After reviewing all the medical evidence of the neurologist, orthopaedic surgeons and the physicians, it is more likely that the preponderance of evidence is that the plaintiff suffered from muscular strain. At best, Dr Blombery says that the jarring of the fall possibility aggravated pre-existing degenerative changes to the cervical spine.

Summary of the medico-legal reports and opinions

1. [213]

   The plaintiff relied upon the reports of Professor Lorraine Dennerstein, psychiatrist, dated 12 June 2018 and 2 December 2022 and the defendant relied on the report of Dr Doron Samuell, psychiatrist dated 6 October 2021. They did not prepare a joint report, but they gave concurrent evidence.

2. [214]

   It is common ground that the reports provided by the medico-legal experts regarding the plaintiff’s psychological state, differ in their conclusions of the patient’s severity. Both experts have conflicting views regarding Mr Langdon’s psychological state and how or if it has been impacted by the incident on the 19 November 2017. However, they both assign any mental health changes in the plaintiff’s life as results of either the claimed physical issues experienced by Mr Langdon or other external life pressures, such as those of COVID-19 or the plaintiff’s compromised financial position.

3. [215]

   Professor Dennerstein in her report dated 12 June 2018 stated the following: The plaintiff is suffering from a potential sleep disorder, that has not yet been medically diagnosed. She also noted that the plaintiff had developed “secondary adjustment disorder with mixed anxiety and depressed mood” (CB.180). This is in response to his pain, frustration, and the limitations that his injury has placed on his ability to maintain an income. She further notes that some of the stresses are unrelated to his injury. She stated that the plaintiff’s impairments reflect his physical injuries and that his psychological injuries are mild. According to Prof Dennerstein, the plaintiff’s psychiatric condition has been materially contributed to by the injuries he sustained from the incident, but she also notes that they are also affected by factors that are irrelevant to his injury. Her recommendations for the plaintiff were to continue counselling at 6 sessions fortnightly or 3 weekly intervals (CB 182).

4. [216]

   In her latter report dated 2 December 2022, re-assessment of the plaintiff was conducted via zoom. She expressed the view that the plaintiff’s previously diagnosed psychiatric condition of secondary adjustment disorder with mixed anxiety and depressed mood, had worsened. She attributed this to the plaintiff’s increased pain from his neck and shoulders as well as the apparent failed surgery and failed pain management programme at the hospital. Prof Dennerstein observed that the plaintiff displays a “persistently lowered mood, hypersomnia, irritability, feelings of hopelessness and anxiety about his future” (CB 195).

5. [217]

   On 6 October 2021, Dr Samuell conducted a psychiatric evaluation of the plaintiff. Dr Samuell disagrees with Prof Dennerstein’s diagnosis of adjustment disorder with mixed anxiety and depressed mood. He stated that the “threshold criteria for adjustment disorders include emotional responses that are disproportionate to the circumstances and/or symptoms that are disabling” (CB.389). Dr Samuell believed that the plaintiff’s emotional response had not been disproportionate to the altered circumstances of the plaintiff’s physical functioning.

6. [218]

   Dr Samuell also noted in contrast to Prof Dennerstein that there was no evidence of the plaintiff’s irritability while conducting the interview and questioned Prof Dennerstein’s use of the phrase “anxiety about the future” (CB389). Dr Samuell was unsure if Prof Dennerstein was using the term ‘anxious’ in the clinical sense or in the lay sense.

7. [219]

   Dr Samuell also mentioned that Dr Jenkins, Mr Langdon’s long-term GP in a report dated 22 August 2019 stated that he had not documented a psychological condition in relation to the plaintiff.

8. [220]

   Dr Samuell’s views is that an adjustment disorder diagnosis should not be made on the basis that the plaintiff has understandable common distress associated with the change in his functioning from his claimed physical losses.

9. [221]

   The evidence provided by both psychiatric experts when giving concurrent evidence on the cruise incident, focused on the plaintiff’s inconsistent description of the factual events given by the plaintiff and recorded by them compared to their observations of the CCTV footage. Even though the plaintiff’s family and friends observed a change in the plaintiff’s psychological condition, there are many factors that the psychiatrists identified that may have caused the change in his psychological condition.

10. [222]

    Both experts expressed concern regarding several issues that had either not been raised by the plaintiff or had been minimised when asked about them during his respective interviews, these included:

11. [223]

    He had failed to disclose a relevant psychiatric history or stressors from the past, that may have affected his current psychological state and that were present in coexistent medical records. He had minimised several external psychosocial stressors in his life, not associated with the incident aboard the cruise that may have adversely impacted his mental health.

12. [224]

    The actual circumstances and the way in which the plaintiff ‘fell’ on the cruise. The CCTV video footage when viewed by them differed to that of the plaintiff’s account that he had given to them.

13. [225]

    So far as causation is concerned, both psychiatric experts, concluded that any mental conditions suffered by the plaintiff were not as a direct result of the incident aboard the cruise ship on 17 November 2019. I accept the evidence. Therefore, I find that the plaintiff did not suffer any psychiatric or psychological condition caused by the cruise incident.

14. [226]

    The plaintiff alleges that he sustained a psychological injury through aggravation of pre-existing but asymptomatic degenerative changes of the cervical spine and left shoulder, that occurred from the cruise incident on 19 November 2017:

15. [227]

    At the time that she prepared her second report in these proceedings, Prof Dennerstein believed the plaintiff’s psychiatric condition had been ‘materially’ contributed to by the injuries sustained in the incident. However, having subsequently viewed the clinical records of the plaintiff’s treating psychologist, Elizabeth McMillan (CB.668-681). Prof Dennerstein qualified her view and revised her original statement regarding the role the plaintiff’s injuries had played on his psychological state as being “a not insignificant contributing factor” (T.218.15) and then substituting the word “materially” for “not insignificant”.

16. [228]

    With respect to the completeness of the plaintiff’s report of symptoms to her, Prof Dennerstein gave evidence:

17. [229]

    To succeed the plaintiff must have suffered, or be suffering from, a diagnosed psychiatric condition that arose as a consequence of the incident. Prof Dennerstein, although maintaining that the plaintiff did suffer from some mild form of mental health issues, altered her view on the root cause of these issues once presented with a more complete medical history of the plaintiff. Dr Samuell maintained his opinion expressed in his original report that the plaintiff did not display any psychiatric or psychological conditions or issues caused by the cruise incident. Dr Samuell has concluded that the plaintiff does not present any psychological or mental health conditions (CB.392).

18. [230]

    It is my view that the plaintiff did not disclose or minimised his previous psychiatric condition and treatment to the psychiatrists. He admitted that at the hearing, he had a number of things that were concerning him at the moment, but they had nothing to do with the incident on the cruise ship. It is more likely than not that the plaintiff did not suffer any psychiatric or psychological condition caused by the incident on the ship.

19. [231]

    In the event that I am wrong in relation to causation, I shall briefly record my reasons as to damages on the assumption that he suffered injuries to his neck and left shoulder in the cruise incident.

20. [232]

    After the cruise incident, the plaintiff says that he continues to experience pain and restriction in the neck and left shoulder. He reports experiencing headaches and tiredness as described in his evidentiary statement. The plaintiff claims a consequent diminished capacity for work, recreation and the need for domestic assistance and ongoing treatment.

21. [233]

    General damages for non-economic loss resulting from personal injury are a matter of impression but with not a degree of hypothesis regarding the elements of pain, suffering, disability, and loss of amenity of life, past and future. Section 16(1) of the Civil Liability Act relates to non-economic loss, it reads:

22. [234]

    If the severity of non-economic loss in percentage terms is equal to or greater than this percentage, the amount of damages is, by s 16(3) of the CLA, to be ascertained by reference to the table set out in that subsection.

23. [235]

    In Clifton v Lewis [2012] NSWCA 229, Basten JA said at [57]:

24. [236]

    In assessing the proportion of a most extreme case, the court is not required to arrive at an unrealistic level of precision provided the percentage falls within a reasonable range of assessment: Berkeley Challenge Pty Lyd v Howarth [2013] NSWCA 370 per Basten JA.

25. [237]

    The defendant disputes that the plaintiff’s non-economic loss does not meet the threshold.

26. [238]

    The definition of a most extreme case pursuant to s 16 of the CLA has been discussed in Matthews v Dean (1990) 11 MVR 455; [1990] Aust Torts Reports 81-037 at 68,014; Southgate v Waterford [1990] Aust Torts Reports 81-065; (1990) 21 NSWLR 427 at 440 and Dell v Dalton (1991) 14 MVR 158; (1991) 23 NSWLR 528 at 433.

27. [239]

    Non-economic loss means any one or more of the following, pain and suffering, loss of amenities of life, loss or expectation of life and/or disfigurement: see Sutherland Shire Council v Major [2015] NSWCA 243.

28. [240]

    The plaintiffs submitted that 35% of the most extreme case provides a realistic and balanced assessment of the non-economic loss of the plaintiff at $246,500.

29. [241]

    The plaintiff was 57 at the time of his injury. The plaintiff has been unable to continue full time work since 2017.

30. [242]

    Based on the evidence provided by the plaintiff, it is established that the plaintiff was a hard-working house-proud man with a loving family. He worked long hours in a physically demanding job. He is a stoic man, he complains little, had occasional injuries, over the years, but given that he has been working since he was 15 this is not unexpected. The plaintiff has always been able to return to full time work after these events. The plaintiff submitted that he has demonstrated that complaints of difficulties relating to work by the plaintiff were limited and that there was no evidence of incapacity to work since 2005.

31. [243]

    The plaintiff contends that the evidence provided proves that he was fit and in full time employment when embarking on the cruise, and that after the incident aboard the ship, a chain of events were set into motion resulting in the plaintiff’s current state rendering him certifiably unfit for any work.

32. [244]

    It is submitted that the plaintiff’s family have watched his deterioration since the 2017 incident.

33. [245]

    The plaintiff has undergone a plethora of tests and attendance with specialists regarding his injuries. The plaintiff submits that he has done all that has been asked of him from his treating practitioners. The plaintiffs also submitted that he is regular pain and has lost the ability to continue recreational activities such as water ski racing and horse riding.

34. [246]

    In the circumstances, given the defendant’s age, and the relatively minor impact of the jarring injury resulting from the incident, the defendant submitted that the plaintiff does not meet the threshold of 15% of a most extreme case required under s 16(1) of the CLA to be entitled to an award of damages for non-economic loss.

35. [247]

    The assertion is made primarily based on the evaluation provided by Dr Dalton.

36. [248]

    At page 9 of his report dated 16 May 2022, Dr Dalton states that:

37. [249]

    At page 2 of his supplementary report dated 3 October 2022, Dr Blombery has stated:

38. [250]

    In the circumstances, to the extent that the incident caused any injury to the plaintiff at all, it is likely that any minor pain and restriction of movement from the incident resolved within days to weeks and would have done so without treatment.

39. [251]

    I do not accept that the plaintiff suffered any psychiatric or psychological injuries caused by the cruise incident. Otherwise, I accept the plaintiff’s submissions. Taking them into account, I assess the plaintiff’s non-economic loss at 25%.

40. [252]

    If I did, it was minor. It is more likely to be related to his current unsatisfactory mouldy living conditions and long running dispute with the insurer.

Past out-of-pocket expenses

1. [253]

   The plaintiff makes a claim for past treatment expenses as claimed by Medicare, together with the outstanding, out of pocket expenses not reimbursed by Medicare and pharmaceutical expenses totalling $20,000. These figures are broken down as follows:

   1. (1)

      Medicare: $12,212.60

   2. (2)

      Pharmaceutical: $279.82

   3. (3)

      Balance from Medicare: $5535.90

   4. (4)

      Other Non-receipted expenses: $1,971.68

2. [254]

   A schedule of these incurred expenses was provided to the Court. In the circumstances, the plaintiff submitted that these expenses were reasonably incurred and are related to medical treatment he has undergone upon the recommendations of his treating practitioners.

3. [255]

   By way of amended statement of particulars filed 9 March 2023, the plaintiff claims $20,000 for past out-of-pocket expenses, comprised of:

   1. (1)

      Past pharmaceutical expenses estimated at $5,000; and

   2. (2)

      A repayment to Medicare estimated at $15,000.

4. [256]

   The defendant submitted that the only treatment expenses incurred by the plaintiff are those that were incurred from the date of the incident to 21 December 2017 when the plaintiff sustained the bathroom fall.

5. [257]

   In the absence of receipts and a valid medicare notice of charge, the defendant submitted that a buffer of $500 is reasonable for any general practitioner consultations and medication expenses incurred during that period.

6. [258]

   The plaintiff’s past treatment expenses amount to $20,000. I allow that amount.

Future out-of-pocket expenses

1. [259]

   The evidence produced under subpoena from Medicare and PBS (Ex B) supports the conclusion that the plaintiff continues (as of January 2023) to consult his general practitioner, and various management specialists, including Dr Gnomes, physiotherapy with S Skilton, and psychological services with Ms MacMillian.

2. [260]

   Most, if not all these consultations are through the public system. The Orthopaedic experts accept that the plaintiff required symptomatic treatment such as physiotherapy and analgesia management (CB.399).

3. [261]

   Dr Blomberry was of the opinion (CB.76):

4. [262]

   In the circumstances, the court would be comfortable to award the amounts claimed and quantified within the statement of particulars at the modest sum of $33,680.56 which has allowed for various vicissitudes where appropriate.

5. [263]

   The defendant’s submissions

6. [264]

   Considering the opinions of Drs Courtenay and Dalton, the defendant submitted that the plaintiff is not entitled to damages for future out-of-pocket expenses as any pain or restriction of movement that developed as a result of the incident resolved within days to weeks of the cruise incident.

7. [265]

   On the assumption that the plaintiff suffered neck and left shoulder injuries and they were caused by the cruise incident, I would allow the sum of $33,680.56 for future out-of-pocket expenses.

Past economic loss

1. [266]

   The plaintiff’s submissions

2. [267]

   The plaintiff has provided various medical certificates, provided by his general practitioner, and summarised below (CB.751-772):

3. [268]

   The plaintiff’s unchallenged evidence is that since the fall on the ship he has returned as best he could to some light suitable duties with days off work from time to time. This evidence has not been challenged by the defendant. It is admirable that the plaintiff has done his best to return to work and undertake roles and tasks that he could best do following his injury. He has not however been able to return to full, pre-injury duties and earning capacity.

4. [269]

   The plaintiff’s evidence is that at or about June 2021, he first started to receive Centrelink benefits (CB.438, 221). The payment summary for the financial year ending 2021 indicates that he first received Centrelink benefits on or about 14 May 2021 (CB.878).

5. [270]

   Since about June 2022, the plaintiff has been in receipt of a disability support pension. The certificates for that benefit have been provided by his general practitioner, Dr Jenkins, who was of the opinion that the plaintiff has been completely unfit for work since May 2021 for reasons of both his neck and shoulder condition (CB.768-70, 772). Both these conditions together and separately have rendered the plaintiff completely unfit for work.

6. [271]

   The Court must be cautious to accept the expert’s conclave evidence where it conflicts with the general practitioner with whom the plaintiff attends regularly and sees his daily struggles, regarding capacity for employment both in the past and into the future, in comparison to the experts who have seen him only once or twice and some years earlier. Noting within the orthopaedic conclave:

7. [272]

   These opinions must be considered in circumstance where Dr Courtenay assessed the plaintiff on 16 June 2022 and Dr Moran on 29 September 2021. Neither expert has considered what alternative part time role the plaintiff may be capable of undertake nor whether he would be qualified to obtain such a role.

8. [273]

   This was emphasised by Dr Moran (CB.399 – A8):

9. [274]

   Dr Blombery was of a similar view (CB.77):

10. [275]

    Dr Moran was of the opinion (CB.69);

11. [276]

    Dr Teddy was of the opinion (CB.90);

12. [277]

    There has been no contradiction to this contemporaneous evidence from the plaintiff’s general practitioner that the plaintiff has a loss of earning capacity and the Court ought to accept the proposition of the plaintiff’s regular treating practitioner who has reviewed and continues to review his capacity for work and has found that he is currently incapacitated.

13. [278]

    That position is assisted by the plaintiff’s treating Neurosurgeon Dr Gnomes who provided the following opinion (CB.664):

14. [279]

    Dr Palit – consultant rehabilitation physician states (CB.656):

15. [280]

    The authorities make it clear that damages for economic loss, past and present, are awarded for impairment to earning capacity when the impairment is productive of financial loss: Graham v Baker (1961) CLR 340; Medlin v State Government Insurance Commission (1995) 182 CLR 1.

16. [281]

    There are three questions to be answered in assessing the loss of income earning capacity:

    1. (1)

       What was the plaintiff’s earning capacity at the time of injury?

    2. (2)

       To what extent was it impaired by the injury?

    3. (3)

       To what extent was the impairment productive of income loss?

17. [282]

    McColl JA and Hall J provided a useful summary of the applicable principles in Kallouf v Middis [2008] NSWCA 61 at [44]-[61]:

    1. (1)

       Damages for past and future loss of income are allowed because diminution of earning capacity is or may be productive of financial loss: [1961] HCA 48; (1961) 106 CLR 340 (at 347) per Dixon CJ, Kitto and Taylor JJ. An alternative way of expressing the principle is that the plaintiff is compensated for the effect of an incident on the plaintiff’s ability to earn income: Medlin v The State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 per McHugh J at 16.

    2. (2)

       Although the exercise involves assessment of lost earning capacity and not loss of earnings, evidence of wage rates, known for the past and likely in the future, provides a basis for assessment.

    3. (3)

       Both the lost capacity and the economic consequences of that loss must be identified before it will be possible to assess the sum that will restore the plaintiff to his or her position but for the injury.

    4. (4)

       What was earned in the past may be a useful guide to what might be earned in the future, but it does not always provide certain guidance.

    5. (5)

       Assessment of future income loss necessarily involves the consideration of future possibilities or hypothetical events. The exercise is imprecise and carried out within broad parameters.

    6. (6)

       Evaluation of the extent to which a plaintiff may in future lose time from work and of the proper compensation to be allowed depends on the evidence.

    7. (7)

       An error of principle would be involved in concluding, in the absence of evidence, as a matter of certainty that a plaintiff will suffer future income loss.

    8. (8)

       The onus is on the plaintiff to provide evidence in support of the claimed diminution in earning capacity. Past income is relevant to this consideration but is not always determinative.

    9. (9)

       The onus is on the defendant who contends that the plaintiff has a residual earning capacity to provide evidence of the extent of that capacity and of the availability of employment.

    10. (10)

        In both cases, the evidence must establish more than a mere suggestion of loss or capacity.

    11. (11)

        Where it is clear that income-earning capacity has been reduced but its extent is difficult to assess, the absence of precise evidence will not necessarily result in non-recovery of damages. The task is to consider a range of what may be possibilities only that a particular outcome might be achieved to arrive at an award that is fair and reasonable.

18. [283]

    The tax returns do not reflect the full amount of the plaintiff’s pre-incident capacity to earn because they do not reflect any unrecovered bad debts.

19. [284]

    The task of assessment of future loss in circumstances where there is only limited evidence of loss to date was clarified in State of NSW v Moss (2002) 54 NSWLR 536 where the plaintiff’s injuries clearly pointed to an effect on his capacity to earn and there was therefore evidence of impaired earning capacity. Heydon JA said it was wrong to conclude that damages to compensate for this loss should be minimal. His Honour referred at [69] to authorities that his Honour said contained two uncontroversial themes. Firstly, in general, it was desirable for proceed evidence to be called of pre-injury and the likely post-injury outcome. But importantly, the absence of that evidence will not necessarily result in an award of no or nominal damages for impaired earning capacity. His Honour’s summary at [87] was:

20. [285]

    The assessment of the plaintiff’s loses is complicated in this matter as he was self-employed. His evidence included various down turns in primary production income, some poor record keeping and bad debts. In those circumstances, the court is required to do its best on the material available to measure the loss that is due to the injury: Ryan v AF Concrete Pumping Pty Ltd [2013] NSWSC 113 at [211] and New South Wales v Moss (2000) 54 NSWLR 536 at [72].

21. [286]

    The plaintiff says, when considering pre-incident earning income, he was earning approximately $120,000 per annum (CB.435).

22. [287]

    The plaintiff makes a claim for past economic loss of on average $50 per week since the date of the incident, until 1 July 2021, which then reverts to $1000 per week from 1 July 2021 to date. The plaintiff has selected 1 July 2021, for simple ease of calculation, noting that he has not worked from March 2021, and was in receipt of Centrelink benefits of some kind since May 2021.

23. [288]

    The plaintiff’s statement of particulars summarises his pre-incident business and personal taxation before the incident. This is the starting point for analysis of the plaintiff incident earnings. It is noted that the taxation records, however, only record the total monies received by the plaintiff, not the extent of his earning capacity.

24. [289]

    A summary over the 6-year period 2012-2017 is as follows:

    1. (1)

       The plaintiff received a total income of $1,1075,679.00, which averages out at $169,279.83 per year, $3255.38 per week.

    2. (2)

       The total expenses including depreciation of $760,652 or $126,775.33 per year or $2437.99 per week.

    3. (3)

       Total expenses excluding depreciation, $628,410 or $104,735 per year of $2,014.13 per week

    4. (4)

       Total gross income (primary reduction less total expenses):

25. [290]

    These figures represent the declared business income of the plaintiff and support the starting proposition that the plaintiff’s average net figure would be $1000 per week (after taxation).

26. [291]

    However, it was the plaintiff’s unchallenged evidence that between 2010 to 2015 he was engaged in work with a Dr Effat Farag (CB.434). Dr Farag subsequently did not pay all the accounts owed to the plaintiff at a time which was working 12 hours a day 6 days per week. The degree of work the plaintiff was undertaking before the incident was not challenged by the defendant (CB.434).

27. [292]

    Additionally, the further unchallenged evidence of the plaintiff (CB.435) is that in the years preceding the incident the plaintiff was owed the following monies which were not received, that is, they were bad debts. These are listed as follows and total $297,526:

    1. (1)

       Gattocorp P/L: $6,718.38

    2. (2)

       Southon Constructions $43,924.68

    3. (3)

       JSL Global P/L: $33,268.68

    4. (4)

       Collocot Street P/L: $53,649.30

    5. (5)

       138FF P/L: $83,722.95 and

    6. (6)

       Nine Dragons: $33,268.

28. [293]

    The plaintiff’s declared income within the taxation returns does not reflect his actual capacity which needs to include these bad debts of $297,526 over the same 6-year period.

29. [294]

    The analysis taking into account the unpaid amounts, on the same basis as above is follows:

    1. (1)

       Total primary production (including bad debts) being $1,313.205 ($1,015,679 + $297,526), or an average of $218,867.50 per year or $4,208.99 per week.

    2. (2)

       Total expenses would have remained the same.

    3. (3)

       Total gross income would have been, noting that both figures are before tax:

30. [295]

    As demonstrated above these figures elevate the pre-tax earnings of the plaintiff to well above the previous tax levels. Doing the best he can to assist the court and allowing for changes in income over time, the plaintiff submitted that the best and considered position would have been an average earning capacity of $1,000 net per week.

31. [296]

    From 27 November 2017 to 30 June 2021 (187 weeks) at $50 loss per week. $50 x 187 = $9,350. From 1 July 2021 to 27 March 2023 (90 weeks). $1000 x 90 weeks = $90,000. Total past loss = $99,350.

32. [297]

    Upon returning to Victoria following the subject cruise, the plaintiff returned to work. The plaintiff alleges that he experienced pain in the neck and left shoulder while working.

33. [298]

    In his amended statement of particulars, the plaintiff claims a nominal loss of income of $50 per week from 27 November 2017, being the first Monday following the plaintiff’s return from the subject cruise to 1 July 2021.

34. [299]

    The defendant conceded that a nominal diminution of earning capacity of $50 per week is reasonable for the period over which the plaintiff’s injuries from the cruise incident persisted.

35. [300]

    The plaintiff’s period of loss is from 27 November 2017 to 21 December 2017 when the bathroom fall occurred, totalling $200.

36. [301]

    There is photographic evidence showing the plaintiff undertaking physical work as a landscaper. In the past, he has only claimed $50 per week. The defendant accepts $50 per week, but only up until the time of the bathroom fall (4 weeks x $50 once again equates to $200). On the assumption that the injuries to the plaintiff’s left shoulder and neck were caused by the incident on the cruise, I would allow the sum of $99,350 for past-economic loss.

Future economic loss

1. [302]

   The plaintiff’s unchallenged evidence is that he has been able to go back to work, earning a modest income but there have clearly been days in which he has been off work. The plaintiff says, when looking at his earning until May 2021, he has lost on average about $50 per week, quantified in the updated statement of particulars as follows:

2. [303]

   From July 2021, the plaintiff makes a claim of $1,000 per week into the future:

3. [304]

   It is noted that the defendant has submitted that the taxation returns have shown an increase in taxable income. This is correct however taxable income is not earning capacity. Within the 2020 financial year there was a significant increase where the total taxable income was $80,291 (CB.794). However, it is submitted that the figure is not indication of earnings. It included a SLS payment (superannuation lump sum) of $30,030 which is further evidence in the payment summaries (CB.878). A lump sum superannuation payment is not representative of earning capacity and the Court needs to be careful when relying solely on the notice of assessments and only taxable income regarding determination of loss of earning capacity.

4. [305]

   It is the plaintiff’s unchallenged evidence that as of 2017, he was going to work for about the next 12 years (CB.436):

5. [306]

   Mark Owns gave evidence about a continuing contract with the City of Casey.

6. [307]

   In all likelihood, the plaintiff would have worked until the age of 67, if not longer. The defendant has not challenged this evidence.

7. [308]

   The plaintiff says that, doing the best he can with respect to the calculations of $1,000 per week, the loss of his earning capacity calculated from 1 July 2021, for 5 years until he turns 70 is as follows:

8. [309]

   The plaintiff also submitted that the Court, when considering all these aspects, may allow a buffer of $250,000 for future economic loss.

9. [310]

   The defendant submitted that the plaintiff’s injuries and disabilities arising from the cruise incident resolved within weeks.

10. [311]

    The defendant submitted that in the circumstances, the plaintiff is not entitled to damages for future economic loss.

11. [312]

    On the assumption that the plaintiff suffered injuries to his left shoulder in the cruise incident, I would allow $100,000 as a buffer. I have reduced the amount claimed by the plaintiff on the basis that he has the capacity to perform some physical work, as shown in photographs, and there is no persuasive evidence to demonstrate that the plaintiff would of, in fact, worked to 70 years of age. My view is that he most likely would have worked until the retirement age of 67.

Past care

1. [313]

   The plaintiff has provided unchallenged evidence regarding the size and description of the Scott Road Property (CB.423):

2. [314]

   The plaintiff further provided unchallenged evidence regarding the timing of the outdoor activities (CB.424):

3. [315]

   The plaintiff provided evidence in cross-examination that he does some of the work around the house being the lawns – no more other than outdoor maintenance was put to him (T80.7-18):

4. [316]

   The evidence in cross-examination that he can do some of the mowing must be considered together with the unchallenged evidence that he requires assistance (CB.427):

5. [317]

   The evidence from his daughters, Jessica (CB.459-464), Emily (CB.466-472) and Caitlyn (CB.48-486), together with Mark Owens (CB.477) support the proposition that the plaintiff requires assistance with heavy aspects of work around the house in outdoor areas. Specifically, Emily provided the following evidence of at least 1-2 hours per sister per week – being a total of 6 hours of assistance being provided by the plaintiff’s daughters (T145.25-48, T155.11-38):

6. [318]

   Regarding medical support, Dr Blomberry was of the opinion (CB.77): “That is the case as outlined above. He is having assistance at the moment from his daughters but if that were not available, he would require regular assistance up to five hours per week.”

7. [319]

   Dr Moran was of the opinion (CB.69):

8. [320]

   In the circumstances, noting that there is some variation in the degrees of assistance from time to time, including the period between when the plaintiff moved out of the large five-bedroom house into the granny flat, and the changing of the seasons, the court would be satisfied that the plaintiff required assistance in the past of no less than 9 hours per week at $33 per week being the average rates for attendant care.

9. [321]

   As at the first day of the trial, this was 277 weeks.

10. [322]

    The plaintiff makes a claim for past care on a gratuitous basis.

11. [323]

    The plaintiff does not rely on any expert evidence in support of the proposition that the care provided is both reasonably necessary and causally related to the subject incident.

12. [324]

    None of the lay witnesses called on behalf of the plaintiff identified a specific need for care and assistance that was provided in respect of the injuries sustained in the cruise incident, and those injuries sustained on 21 December 2017 in the bathroom incident.

13. [325]

    There is evidence before the court that the plaintiff is no longer living in the primary residence on his property and now resides in a “granny flat” or “rumpus room” that is approximately 5m x 7m in size. It has no running water and no kitchen.

14. [326]

    A significant impediment to the plaintiff undertaking his own cooking and laundry is that he does not have the facilities available to him in his current arrangements.

15. [327]

    With respect to the restrictions that she has observed the plaintiff began to experience, the evidence of Ms Caitlyn Rose Langdon was as follows (T2.140.20-33):

16. [328]

    In oral evidence, the plaintiff’s daughter, Jessica Lee Langdon conceded that her evidence that the plaintiff is incapable of vacuuming for any more than 20-30 minutes at a time has not restricted the plaintiff because he is only required to vacuum a very small area, being the 5m x 7m granny flat.

17. [329]

    The plaintiff’s evidence that is incapable of maintaining his property, albeit at a slower pace than previously, was accepted by Jessica Langdon, Caitlyn Landon and Emily Langdon.

18. [330]

    Emily Langdon gave evidence of her estimate of the amount of time that she and her sisters spend per week in providing care and assistance to the plaintiff. Emily’s estimate was as follows (T2.154.45-T2.155.38):

19. [331]

    Dr Dalton is of the opinion that the plaintiff’s injuries and disabilities arising from the cruise incident resolved within weeks of the Incident. However, in the event that the plaintiff establishes that he has developed a need for care as a result of the incident, Emily Langdon’s evidence demonstrates that the plaintiff’s care requirements do not meet the threshold for claiming damages for gratuitous care.

20. [332]

    In these circumstances, the plaintiff submitted that the plaintiff is not entitled to damages for past care.

21. [333]

    The photos of the property show that it is kept in immaculate condition and is stunning. Once again assuming the plaintiff’s injuries to his left shoulder and neck are caused by the cruise incident, he has still been able to do the mowing. While I would accept that the plaintiff cannot do tasks such as climbing a ladder and the hour or two a week that has been performed by friends and family members as gratuitous care, this does not amount to the threshold amount of 6 hours per week for 6 months required, namely, on this basis I would not allow any past domestic care.

Future care

1. [334]

   The plaintiff largely adopts their submissions pertaining to past care for the purposes of future care.

2. [335]

   The plaintiff submitted that the evidence provided is that of a loving and caring family, and there is no indication that the daughters will stop providing the assistance to their father. Once the property issue is resolved, it is likely that the plaintiff will move out of the small granny flat and would require assistance with internal housework as articulated by his daughters in their evidence.

3. [336]

   The amount claimed in the statement of particulars for future assistance allows not just for vicissitudes of life in terms of future care, but also it is only claimed for the next 10 years. The claim has been made allowing for the age of the plaintiff and noting that he is unlikely to be able to maintain the property indefinitely:

4. [337]

   The plaintiff makes a claim for future care on a gratuitous basis. The defendant submitted that on the basis of the evidence of Emily Langdon, the plaintiff does not meet the threshold for claiming damages for gratuitous care.

5. [338]

   Further, Dr Dalton is of the opinion that the plaintiff’s injuries and disabilities arising from the incident resolved within weeks of the incident and as such, any current requirement for care is not causally related to the incident.

6. [339]

   The plaintiff has not served any evidence from an expert that is appropriately qualified to express an opinion on the level of future care, if any, required by the plaintiff as a result of the incident.

7. [340]

   On this basis the plaintiff’s injuries to his left shoulder and neck were caused by the cruise incident and that at some stage he may require commercial care (not 10 years). I would allow $50,000.

8. [341]

   The plaintiff has failed to establish causation. Judgment is entered for the defendant.

9. [342]

   Costs normally follow the event. The plaintiff is to pay the defendant’s costs.

   1. (1)

      Judgment is entered for the defendant.

   2. (2)

      The plaintiff is to pay the defendant’s costs.