HASSAN v SOUTHERN MEATS PTY LTD [2004] NSWSC 72

New South Wales Supreme Court

CITATION : HASSAN v SOUTHERN MEATS PTY LTD [2004] NSWSC 72 revised - 27/05/2004 HEARING DATE(S) : 3, 4, 5 December 2003 JUDGMENT DATE : 20 February 2004 JURISDICTION: Common Law JUDGMENT OF : Adams J at 1 DECISION : Judgment for the plaintiff in the sum of $1,551,793 plus interest to be determined. Defendant to pay the plaintiff's costs.

CATCHWORDS : Industrial accident - worker tripped over hose - liability of employer - blindness in left eye - psychogenic blindness in right eye - causation - uncertain prognosis - calculation of damages LEGISLATION CITED : Workers Compensation Act 1987 s151G CASES CITED : Fox v Wood (1981) 148 CLR 438 PARTIES : Abraham Emam (formerly known as Ibrahim Hassan) (Plaintiff) Southern Meats Pty Limited (Defendant) FILE NUMBER(S) : SC 20167/03 COUNSEL : B J Gross QC with T J Boyd (Plaintiff) J A McIntyre SC with P M Morris (Defendant) SOLICITORS : Cameron Gillingham Boyd (Plaintiff) Moray & Agnew (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ADAMS J

FRIDAY 20 FEBRUARY 2004

20167/03 HASSAN v SOUTHERN MEATS PTY LIMITED

JUDGMENT 1 HIS HONOUR: This action arises out of a fall by the plaintiff (who has changed his name to Abraham Emam) at the defendant's abattoir at Goulburn, where he was employed as a Halal slaughterman, on 1 February 1999. Tragically, a knife that he was holding at the time penetrated his left eye, which was blinded. The essential dispute concerning this fall is whether it occurred, as the plaintiff asserts, when he tripped over a hose which had been carelessly left in his path from the knife sharpener to the cutting table or whether he simply misjudged his tread on some intervening steps. It is, in substance, agreed that if the former was the case, he is entitled to recover damages for negligence, whilst in the latter event, there is no negligence established on the part of the defendant. I have concluded, for reasons which I will shortly state that, indeed, the plaintiff did more probably than not trip on a hose as he claimed and that, had the hose been properly stored, the accident would not have happened. 2 The much more difficult issue in this case is that, although it is undisputed that the blindness in the plaintiff's left eye was caused by the accident, the plaintiff also alleges that he has, to a varying but substantial extent, lost the sight also in his right eye. This cannot be explained by any physical injury: the eye is physically normal. The two principle questions that arise are: firstly, whether the psychiatric cause of the plaintiff's blindness was caused by his other injury (and hence by the accident) or by a pre-existing constitutional psychiatric condition unaffected by the intervening accident; and secondly, the probability that the blindness he experiences in that eye will continue and, if so, for what period. The most obvious question, namely, whether the plaintiff is feigning his right eye blindness, has not really been raised by the defendant, although it tendered medical reports to the effect that such a possibility cannot be certainly excluded. 3 The plaintiff was born on 8 February 1956 in Suez, Egypt. Accordingly, he is presently aged 48 years and was almost 43 years of age at the time of the accident. He had married in 1984 and has four children. However, it appears that he and his wife separated some time before the accident. They came together for a period after the accident so that the plaintiff could be cared for, but this cohabitation did not last. His four children are aged 9, 12, 15 and 17 years. The two younger children live with his ex-wife and the older boys live with the plaintiff. 4 The plaintiff left school aged 15 and trained as a fitter and turner but, at the age of 17, was drafted into the Egyptian army and served in the Egyptian armed forces in what has been called the Six Day War in 1973. He was captured by the Israelis and kept a prisoner of war for about nine months where, he said, he was well treated. When he was released from that incarceration, he returned to Egypt but was then detained, for what I understand to be political reasons, by the Egyptian government for about eleven months. He said that he was very depressed as a result of this imprisonment which he found "quite hard". On his release he went to work as a fitter and turner in an electrical factory in Cairo. He left Egypt in 1977 later and travelled to Kuwait, France and England to work. 5 The plaintiff came to Australia from England to join one of his brothers, with whom he worked for about six or seven years in a cleaning and pest control business. In the mid-1980s, the plaintiff commenced to operate his own contract cleaning business but in the latter part of that decade, he suffered a low back injury which put him off full time work for a time. That injury eventually resolved. In the 1990s the plaintiff worked as a spray painter, initially as an employee and then operating his own spray painting business. During this time he undertook a TAFE course for about three years, training as a spray painter and also undertaking a fibreglass course. For reasons to which it is unnecessary to refer, he found himself unemployed in 1994 and was offered work by a supervisor with the Islamic Council to be trained as a Halal slaughterman. The plaintiff undertook this training and worked at a number of abattoirs as a Halal slaughterman, eventually finishing up at Goulburn, working for the defendant in about 1997. 6 The location in the abattoir where the plaintiff worked was called the stick hole, so called because that is where the sheep are killed. The particular stick hole was a new extension of the abattoir, which had only been in use for about three weeks or so at the time of the accident, although the abattoir itself had been built four years previously. The sheep was placed on a conveyor belt, having been stunned, and its throat was then cut by the plaintiff and another person with whom he worked, in rotation. For obvious reasons, the knife used for this purpose required to be frequently sharpened. The sharpening stone was fixed on a T-bar, a little over a metre from the bottom step of three steps leading up to what may conveniently be called the slaughtering deck. The sharpening stone T-bar was itself on a platform (the middle level) which led down, via one step, to a small area, roughly triangular in shape where hooks were placed on a wall for aprons and a cold water dispenser and the external plumbing for the wash down hose were situated (the bottom level). 7 The hose was about 30 metres long, 2 inches wide and relatively stiff. It was used by employees called "floor boys" to wash down the floors at and around the slaughter deck at the end of each run. It was not easy to coil and, at the time of the plaintiff's accident, there was no hook or other apparatus to stow it off the floor. A large hook has since been installed on the wall at the bottom level for this purpose. I understand that it had always been planned to do so but, at the date of the accident, it had simply been an outstanding uncompleted job. One of the floor boys, who was working on the day of the accident, said that, when he finished using the house, he left it – "Just wrapped up on the floor, which sort of just, you know, put it as neat as we could but because of the size of it there wasn't much area and we would just have to leave it on the floor but roll it up as neat as we could. We were always in a bit of a hurry to get out. A couple of times we probably didn't roll it up as best we could have, didn't really leave it real neat. Always just, you know, do it as quick as we can and get out of there." 8 One of the floor boys was a Mr Fitzgibbon, whose shift, as it happened on the day in question, commenced after the accident. Mr Fitzgibbon said that from time to time both he and the other floor boy (Wayne Capner) had left the hose on the intermediate deck, both – "because we were so busy … [we] never really wrapped it up at the time, unless it was at the end of the shift. We wouldn't roll it up through the shift, we would chuck it in the corner because we knew we would have to use it every half an hour or twenty minutes."