Mohamad Saab v the Embassy of Arabic Republic of Egypt [1997] ACTSC 80 (10 October 1997)

SUPREME COURT OF THE ACT

MOHAMAD SAAB v. THE EMBASSY OF ARABIC REPUBLIC OF EGYPT
No. SC 719 of
1995
Number of pages - 8
Tort - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MILES CJ

CATCHWORDS

Tort - personal injuries - plaintiff suffers injuries to back in two separate incidents whilst employed by defendant Embassy - liability denied for first injury and admitted for second injury - first injury allegedly sustained whilst lifting top of paper shredder - common and usual method of clearing paper shredder - expert evidence as to alternatives - evidence rejected as to reasonableness of usual method - no negligence.

Damages - liability admitted by defendant for second injury sustained whilst helping to move photocopier down flight of stairs - causation - issues considered - degeneration throughout plaintiff's body - probability of injury triggering off symptoms in lumbar spine - probability of plaintiff being incapacitated by some other such event in future - damages reduced accordingly.

Standard for Manual Handling and Code of Practice for Manual Handling, 1994, the ACT Government.

HEARING

CANBERRA, 10 June 1997 (hearing), 10 October 1997 (decision)

10:10:1997

Appearances

Counsel for the plaintiff: Mr. G. Stretton

Solicitors for the plaintiff: Sneddon Hall & Gallop

Counsel for the defendant: Mr. G. Lunney

Solicitors for the defendant: Allen Allen & Helmsley

ORDER

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $129,113.00.

DECISION

MILES CJ

Action against an Embassy

It may appear strange that a judge in Canberra, Australia, should presume to tell the people who built the pyramids how to lift heavy objects. However, that is what this case is about.

The defendant is named as the Embassy of Arabic Republic of Egypt. Mr. Mohammed Saab worked there. He hurt his back at work on 19 August 1994 and again on 17 September 1994. He sued the Embassy for negligence. Negligence was denied on the pleadings, but, after the hearing commenced, liability was admitted in respect of the second injury and continued to be denied in respect of the first injury.

I assume that the Embassy is named correctly. Mr. Saab could and perhaps should have sued the Arabic Republic of Egypt. The Court takes judicial notice that the Arabic Republic of Egypt is a sovereign State and is amenable to being sued in this Court. As such it may or may not choose to claim diplomatic immunity, but if it does not, the case will proceed against it in the ordinary way. In contrast, as far as I am aware, the Embassy of Arabic Republic of Egypt has no existence as a corporate body or otherwise which is recognized in our system of law and is not liable to be sued at all in this Court or any court like it.

These matters were not raised by way of defence, but it is as well to refer to them. Normally the court should not permit its processes to be used to obtain a judgment which it knows to be unenforceable.

The plaintiff was born in Lebanon on 26 February 1946. He was well educated, qualifying with a tertiary certificate in accounting. He migrated to Australia in 1969 and had a variety of jobs in Sydney, including work as a machine operator. Clearly he was experienced in the usual incidents of heavy work and the claim that at the age of 48 he needed to be taught about lifting strikes one as incongruous. He married in 1970 and moved to Canberra for family reasons in 1976. He worked as a driver at the Embassy of Jordan and then at the Nigerian High Commission. In 1987 he took a position as a butler at the Embassy of Arabic Republic of Egypt where his wife was already working as a receptionist and secretary. After a while there was a new Ambassador appointed and the plaintiff's duties became those of a more general nature, "sometimes in the office and sometimes in the residence" and included driving.

First injury to back: lifting the top of a paper shredder

On 19 August 1994 the plaintiff was using an electrically driven paper shredder. It jammed as it had done before. He reported this to the Counsellor. He was told to "fix it like before". He went to do what he usually did when the shredder jammed. He removed the top section by lifting it, intending to put it down on a table. He felt that it was going to slip from his grasp, so he tightened his grip and put it back. He felt "something hit in the neck" and pain in both thumbs.

According to a statement on a worker's compensation claim form (undated but bearing a fax date and time of "Aug 25 `94, 14.18"), he reported the incident to all staff, including the Ambassador. He did not give that evidence in court. The statement also refers obliquely to "tearing paper for 2 days for the Ambassador on 21/8/94 & 22/8/94". He did not give that evidence either. However, I am satisfied that the plaintiff was involved in an incident when lifting part of a paper shredder in late August 1994 during which he experienced symptoms in his neck and thumbs.

In any event he continued to work that day after the incident. He said in evidence that he saw Dr George Guirguis that evening and he was referred for x-rays and then physiotherapy. He continued at work carrying out a full range of duties. The physiotherapy commenced on 29 August 1994. He further said in evidence that the pain continued. He told the physiotherapist on 20 September 1994 that the pain was gone. He agreed in evidence that the neck pain was gone by the beginning of November 1994, but by that time he had suffered a further injury.

According to Dr Guirguis' records, he first saw the plaintiff in relation to the incident on 22 August 1994. The plaintiff then complained of neck and left arm pain and directly attributed his symptoms to shredding papers and carrying the shredder to different places. He told Dr Guirguis that the pain worsened until the date of consultation. The plaintiff did not complain of symptoms in the thumbs until a third visit on or before 7 September 1994. X-rays established degenerative change in the thumbs and cervical spine.

I do not think that the plaintiff has established negligence in relation to the occasion when he was lifting the top of the shredder. It is common knowledge that such equipment jams from time to time. There is no evidence that any responsible member of the Embassy staff failed to maintain the machine properly. There is no evidence that the machine was purchased other than from a reputable manufacturer or supplier in the ordinary hope or expectation that it would work properly. There is no evidence that what the plaintiff was required to do was other than a usual and reasonable procedure to remove the top of the machine in order to clear it when it jammed. There is no evidence that the machine required servicing by a mechanic or other expert.

On 5 July 1995 Dr Neil Adams supplied a report with copious attachments. In general terms he stated that "It is reasonable to expect any employer working in the Australian context to be familiar with at least some of the available information, particularly since the ACT Government had by 1994 released two editions of its own Standard for Manual Handling and Code of Practice for Manual Handling, the first of those being in March 1991".

In particular Dr Adams considered that "His exposure to the risk of injury .... could have been very substantially reduced, if not entirely averted, had the employer utilised an appropriate selection of the following reasonable alternatives:

"(i) The employer could have instructed that the document shredder was not to be lifted by untrained staff without assistance but, if requiring any service or attention, should be lifted between two employees.

(ii) The employer could have instructed that if there was a malfunction of the document shredder it was not to be lifted but appropriate service personnel (presumably appropriately trained in lifting techniques) should be called in.

(iii) At the very least, the employer could have ensured that employees like Mr. Saab who might be likely to be called upon to perform lifting tasks had been given appropriate training and supervised practice in safe lifting techniques."

While I accept that adoption of one or more of the measures advocated by Dr Adams could have reduced the risk of injury (not, as he says, the exposure to risk), I reject the implication that any of those measures or a combination of them would have averted the risk entirely. I also reject the implication that it was unreasonable for the supervising staff at the Embassy to have failed to train other staff as suggested or to supervise them in safe lifting techniques. Nor am I convinced that the employer should have prohibited the lifting of the top section of the shredder except by service people trained in lifting, or by two employees.

Whilst the utilisation of any one or more of these measures would have reduced the risk of injury, the effect on the extent of reduction would have varied. To have called in "appropriate service personnel" would have avoided the risk entirely as far as the plaintiff was concerned, but shifted it to other people. To give instructions or training might not have affected the risk at all.

I do not accept Dr Adams' assertion that in 1994 any employer in Australia should have been aware of the substance of the literature and the "relationships between heavy and/or awkward lifting and carrying tasks and musculo-skeletal injury" as set out in that literature, even allowing for the publication by the ACT Government of a second edition of its Standard for Manual Handling and Code of Practice for Manual Handling. Not all employers would have been fixed with such knowledge nor should they be. For instance, a barrister who employs a clerk or secretary to carry out essentially the same sorts of duties as the plaintiff was performing at the Embassy could hardly be expected to be acquainted with the government literature on manual handling (unless perhaps the barrister happened to specialise in personal injury claims). However, I do accept that the standard of reasonableness required of the defendant was the general standard in Australia at the time for the sort of employment in question and that those in charge at the Embassy were not to be exempted from this standard. A foreign government may claim complete diplomatic immunity for the acts and omissions of its diplomatic representatives, but it is an immunity from suit and not an immunity from the application of the same standard of reasonable care that is applied to any other employer in Australia.

Whilst, for reasons which will appear below, I am of the view that the plaintiff suffered only an aggravation of a pre-existing condition by reason of the incident of 19 August 1994 and that the symptoms of that aggravation had ceased altogether by November 1994, the plaintiff fails altogether in his claim in respect of that injury because he has not proved negligence.

Second injury to back: helping to move a photocopier

Although the defendant admits liability for the injury sustained on 17 September 1994, it is necessary to consider the incident and its aftermath because of its relevance to the question of causation in relation to damages.

On the occasion in question the plaintiff was directed to assist in moving a photocopier down a flight of stairs into a basement. There were four male Embassy employees on the job, one on each corner. The shorter men went down first. The taller, including the plaintiff, had to bend to keep the photocopier level. When they got to the bottom of the stairs, the plaintiff felt a sharp pain in his back, and at his request they put the machine down. The plaintiff reported to the Ambassador's secretary who arranged for him to see Dr Guirguis at Kaleen. Dr Guirguis, although in private practice as a general practitioner, was regarded as the Embassy doctor. The secretary drove the plaintiff to Dr Guirguis' rooms at Kaleen. Dr Guirguis prescribed anti-inflammatory medication. The plaintiff continued working that day. Dr Guirguis advised heat treatment and a continuation or resumption of physiotherapy.

The plaintiff continued to work at "mostly office duties" but his back condition continued to give him trouble and he continued with physiotherapy and to consult Dr Guirguis. Dr Guirguis referred him to a rehabilitation specialist, Dr McGrath, and on the advice of the latter the plaintiff underwent 13 sessions of spinal strengthening exercises. On 24 April 1995 the plaintiff presented a certificate from Dr Guirguis recommending light duties to be worked during a three hour day. However, his duties did not change. He continued to receive physiotherapy, which, it should be noted, by this stage was to both the back and the neck. By 10 July 1995 Dr Guirguis considered that he was unfit for work and he was given a certificate current until 21 July. Dr Guirguis referred him to Dr Newcombe, a neurosurgeon, following an MRI scan on 19 July 1995. Dr Guirguis again certified him unfit for work for a day on 20 November. Some time in November 1995 the plaintiff ceased carrying out the back exercise program because of its ineffectiveness. On 8 December Dr Guirguis issued a certificate for limited work duties with a maximum of four hours a day. Dr Guirguis certified the plaintiff unfit for work from 29 February to 1 March 1996 and from 18 April to 26 April 1996 and there was further reference to Dr Newcombe and Dr Andrews, a neurologist, both of whom had the opportunity to peruse the MRI scan taken on 19 June 1996. The plaintiff was again off work on Dr Guirguis' certificate from 15 August to 25 September 1996. When he returned to work on or shortly after 25 September 1996, the plaintiff was told by the Ambassador that he was to work in the residence as a butler. Having had experience of that work and because of his symptoms, the plaintiff declined to accept the offer and his employment was terminated on 10 October 1996. He has not worked since and lives on social security payments. He received conflicting advice on whether or not to have an operation on his neck. Not unreasonably the plaintiff has so far declined to have that operation.

The plaintiff's present symptoms may be summarised as follows. He gets pain in the back of the neck when he lifts and bends, and it is this problem which prevents him from carrying out the work of a butler. That work requires the carrying of loaded trays weighing seven or eight kilograms and bending to serve people, up to 11 at a time. The pain is on the left side of the neck and the plaintiff associates it with pain in the left arm above the elbow. That pain is intermittent and mostly in the cold. It is aggravated by lifting. He has pain in both thumbs some of the time. He has pain in the lower back all of the time aggravated by walking for about 10 minutes.

The plaintiff said in evidence that the pain in his neck and thumbs recommenced in mid-1996 and that it is getting worse. He says that he wakes with a sore back and numb left thumb (or perhaps left arm). He sleeps on a mattress on the floor as it is supposed to be better for the back. His sexual relations with his wife have ceased. He cannot do most of the usual chores around the house. In fact his adult son now has to mow the lawn.

The lower back is also getting worse. He can only drive half way to Sydney, sometimes for only three quarters of an hour. He takes Naprosyn daily, supplemented sometimes by other medication. Physiotherapy stopped years ago. He thinks there is nothing he can do in the nature of employment. His answer to the question why he had not looked for employment was "because my doctor put me off work", although he also seemed to say that he would do any work for which the doctor certified him fit.

There was a generous amount of medical evidence in the nature of reports and it is impossible to reconcile it all. There appear on the face of it to be inconsistencies in the accounts given by the plaintiff both as to events and to symptoms. On the whole, I am not disposed to blame the plaintiff entirely for such inconsistencies as it is at least possible that on some occasions the doctors have simply not understood what he told them. Dr Guirguis is, I think, the most likely one to have got it right. In addition to supplying reports, Dr Guirguis answered questions over the telephone in court.

In an entry of 12 October 1994, Dr Guirguis noted "neck better". Counsel for the plaintiff submitted that this meant that the neck had only improved. Counsel for the defendant submitted that it meant that the neck had recovered. I think that the latter meaning is the more likely. There is no question that the plaintiff has a degenerative condition in the joints of various parts of his body for which the defendant is not responsible. But on the whole I am unconvinced that any precipitation of symptoms in the neck or thumbs or any aggravation of the condition in the neck or thumbs caused by the injury of 19 August 1994 continued for more than a couple of months. It was overwhelmed by the later injury in September which was essentially an injury to the lumbar spine. I also think that the effects of injury to the thumbs in August 1994 had resolved by the end of October.

Dr Guirguis thinks that the plaintiff is capable of about two hours a day clerical work, but that in practical terms he is unemployable. The plaintiff continues on anti-depressant medication. When Dr R.L.G. Newcombe first saw the plaintiff on 7 September 1995 he complained of low back pain, but no neck pain at that stage. Dr Newcombe thought that he was fit to continue his work and that no treatment was required. But when he saw the plaintiff later on three occasions in late 1996, complaints of neck pain and left arm pain were added. Dr Newcombe thought at 3 October 1996 that the neck pain related to aggravation of cervical spondylosis in the first injury. Dr Newcombe advocated cervical spine surgery at that stage. Dr Newcombe did not appear to agree with Dr Andrews that there was cervical disc protrusion (see below).

Dr McGrath first saw the plaintiff on 19 April 1995. He was told of both neck and low back pain, the latter being the worse. He complained of pain also in the left knee during examination and arthritis was found to be the cause.

Dr Andrews thought on 27 August 1996 that the CT/MRI scan of 19 June 1996 showed a protrusion at C5/6 consistent with the symptoms of neck and arm pain and that surgery was required. There was no disc prolapse seen in the MRI scan of the lumbar spine.

A report made to the Department of Social Security by Dr Finn on 11 October 1996, mentions that only minimal movements of the neck were possible and that examination of the lumbar sacral spine was very distressing, with "much of the pain provoked by change of posture". In both areas evidence of significant nerve entrapment were suggested. Dr Finn's view was that the plaintiff was severely incapacitated and incapable of full-time work for the foreseeable future.

Reports by doctors who saw the plaintiff on behalf of the defendant were tendered. Dr Roth, who saw him on 4 November 1994, thought that he had recovered from precipitation of symptoms in the cervical spine and thumbs already subject to degenerative disease. Dr Roth also thought that there had been a muscular-type injury to the thenar eminence in both hands with minimal disability continuing at the date of examination. As to the lumbar spine condition, whilst Dr Roth thought it resulted from the second injury, the disability there was also minimal. Dr Roth thought that the plaintiff was "fit to continue working at this time as a waiter".

Dr Thomson saw the plaintiff on 28 February 1995. There were no complaints in the cervical area and Dr Thomson considered that with physiotherapy and a proper regime of weight reduction, back strengthening exercises and anti-inflammatory medication for another two or three months (before being reassessed), the plaintiff's symptoms should improve, and that in any event he was fit for light duties.

There was further lack of any complaint of neck symptoms on the part of the plaintiff when he saw Dr Bodel, an orthopaedic surgeon, on 26 April 1996. In fact Dr Bodel found an "excellent" range of neck movement, but with degenerative changes throughout the cervical and lumbar spine. He considered that the MRI scan showed a probable disc disruption at L3/4, but that such was internal and not requiring surgery. This is in contrast of course to the view of Dr Andrews. Dr Bodel considered that there was an ongoing degenerative problem at the base of the thumbs. His views as to the future were similar to those that Dr Thomson formed more than a year previously.

Finally, Dr Wilding saw the plaintiff on 26 April 1996 and reported that he was not convinced that the plaintiff was suffering from any effect of the first injury and that the lumbar symptoms which had settled "to a degree" following the second injury were exacerbated spontaneously on about 16 April 1996 requiring a week off work. He also considered that the plaintiff was fit for a range of light duties.

It is to be noted that none of the defendant's doctors have seen the plaintiff since he ceased work. They have had to consider the case against a background in which the plaintiff has suffered from intermittent bouts of incapacity followed by a return to work for limited periods. The position now of course is that the plaintiff has had his employment terminated and presents as entirely lacking in earning capacity.

On the issue of causation, it is clear, in my view, that there was an aggravation of the plaintiff's degenerative condition which resulted in symptoms in the lumbar spine following the injury on 17 September 1994. The plaintiff was a reasonably impressive witness and there was sufficient consistency and continuity in the history of those symptoms to convince me that an element of that aggravation has persisted to the date of hearing. It is further probable that the injury "triggered off" symptoms in the lumbar spine that might have remained symptomless. However, having regard to the extent and degree of degeneration elsewhere in the plaintiff's body, there was a distinct possibility that even by the time of hearing the plaintiff's condition would have been rendered incapacitating by some other incident. For the future that might have been, there was a probability that the plaintiff would have been incapacitated by some such other event.

There is, however, the further question of how far the plaintiff has been incapacitated by the symptoms produced by the injury on 17 September 1994. I accept that the work of a butler is beyond him, but there are still many tasks that he could have performed around the Embassy, some on a full-time basis, some perhaps only on a part-time basis. But those responsible chose to dispense with his services. He has not sought other work, probably in part because he is demoralised, probably in part because he is relying on the outcome of his case. It is unlikely but not impossible that he could get suitable work if he tried. He is, after all, an accountant who understandably chose not to follow that career path when he came to Australia many years ago. But he is obviously a capable and intelligent man. He must have contacts in the Arabic speaking community, including the diplomatic community. His wife is in a similar position. Armed with the modest capital to be generated by an award of damages, the two of them would be capable of operating a small business in which the plaintiff's activities could be monitored and restricted, both as to range and as to time. They do not have to do that of course, (especially when the outlook for small business is bleak) but the point is that the plaintiff is not entirely devoid of earning capacity, and the extent to which he exercises his residual earning capacity is to some extent up to him. Whilst I accept that it was his intention to stay on at the Embassy until he was 65, there was no guarantee from the Embassy in this regard and no certainty that he would have worked to that age elsewhere. Bearing in mind that if the plaintiff had stayed on at the Embassy he would have been earning $308 per week, I estimate his loss of earning capacity at the date of hearing, related to the second injury at $150 per week.

For the past (from the second injury to 14 June 1997) I would discount his loss of earning capacity to $11,000 to allow for his residual earning capacity and the possibility that without the second injury he might have been incapacitated in any event. He has been paid worker's compensation of $4,583 and I allow interest on the balance from 1 October 1996 (as claimed) to date in the sum of $500.

For the future on the 3 percent tables a loss of $150 per week from 15 June 1997 to age 60 is about $60,000 and to age 65 about $87,750. To allow further for the likelihood of supervening incapacity in any event, I would assess the present value of future loss of earning capacity at $70,000.

Bearing in mind that he is now 51 years of age, I award $35,000 for pain and suffering and loss of enjoyment of life, as to which $20,000 is apportioned to the past for the purpose of interest. In the exercise of discretion I award a lump sum of $2,000 in lieu of interest. Out-of-pocket expenses attributable to the injury of 17 September 1994 are agreed to the extent of $7613. There is a further claim for $998 for MRI scan on the neck, but I disallow that because it is referable only to the first injury.

There is also a claim for loss of superannuation benefits. I am unable to understand the claim in the way it is put forward via a report of Macquarie Reporting Services. The report is unsupported by evidence. However, there was presumably a loss of this nature and there must be an award to cover it. It would be discounted as the other components for the future have been discounted. I award $3,000 under this head.

The award of damages therefore is as follows:

Past loss of earning capacity $11,000.00 Interest on past loss of earning capacity $500.00 Future loss of earning capacity $70,000.00 Pain and suffering and loss of enjoyment of life $35,000.00 Interest for past pain and suffering and loss of enjoyment of life $2,000.00

Out-of-pocket expenses $7,613.00 Loss of superannuation $3,000.00 Total: $129,113.00

On a global view this appears to be a reasonable sum to compensate the plaintiff for the injury in question. Unless the parties wish to be heard, I propose to reserve the question of costs.