Carman v Smithfield Tavern Fnq Pty Limited t/as Palmer Kate's Saloon [2000] ACTSC 11 (11 February 2000)

Last Updated: 29 February 2000

Carman v Smithfield Tavern FNQ Pty Limited t/as Palmer Kate's Saloon [2000] ACTSC 11 (11 February 2000)

CATCHWORDS

NEGLIGENCE - Personal Injury - Toothpick swallowed and ingested by plaintiff - Whether toothpick swallowed whilst plaintiff was dining at defendant's restaurant - Undetected by plaintiff at the time - Whether on the balance of probabilities the toothpick was concealed in the meal consumed in the defendant's restaurant - Breach of duty of care - No issue of principle.

DAMAGES - Assessment - Personal injury - Toothpick swallowed by plaintiff whilst dining at defendant's restaurant - Severe pain - Laparotomy - Perforated bowel - No issue of principle.

No. SC 399 of 1996

Coram: Master T Connolly

Supreme Court of the ACT

Date: 11 February 2000

IN THE SUPREME COURT OF THE )

) No. SC 399 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MICHEL FRANCIS CARMAN

Plaintiff

AND: SMITHFIELD TAVERN FNQ PTY

LIMITED (ACN 010 439 853)

t/as PALMER KATE'S SALOON

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 11 February 2000

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $52,122.70.

2. The defendant pay the plaintiff's costs.

1. This is a claim for damages for personal injuries arising in somewhat unusual circumstances. The plaintiff's case is that he consumed a meal at a Cairns restaurant, operated by the defendant, in which was concealed a toothpick, which he swallowed without detection. The toothpick caused a perforation of his bowel, and had to be removed surgically, and he was ill for some time, and continues to complain of some abdominal weakness. Although he says that he took some time off work, he makes no claim for economic loss for the past. He makes a buffer claim for future economic loss. On 29 October 1999 Justice Crispin ordered that the jurisdiction of the court in this matter would be exercised by the Master, and accordingly the matter proceeded to hearing on 6 December 1999.

2. The real issue between the parties in this matter goes to liability. It is the plaintiff's case that it is more likely than not that the toothpick which was removed from his bowel in the course of a surgical laparotomy on 6 March 1995 was concealed in the meal he consumed at the defendant's restaurant on 15 February 1995. The defendant argues that there is insufficient evidence to establish this fact on the balance of probabilities.

3. The plaintiff trained as a bricklayer, and has worked in the construction industry all of his life. For several years he has worked as a construction site manager. In February 1995 he was working on a twelve month contract in Cairns, where he was living with his now wife, and a 14 year old son. It is his evidence, supported by his wife, that he worked very long hours during this time. I should note that the plaintiff's evidence was given in a truthful manner, and there was no challenge to his overall credit.

4. He says that his habit at that time was to rise early, at around 5am and have a light breakfast of coffee and toast before going to the site. He did not eat a lunchtime meal, taking only coffee and fluids during the day, and he would usually return home sometime after 6pm. His main meal was the evening meal, prepared by his wife and consumed at home. Toothpicks were not kept or used in the home. Both Mr Carman and his wife say that they very rarely ate out, as he was working hard and for long hours, they were looking after his then 14 year old son, and Cairns was an expensive place to live. The only times they ate out were for a pre Christmas function with Mr Carman's boss, and on this occasion.

5. On 15 February 1995 Mr Carman's son had a school social at Smithfield High School. The plaintiff and his partner decided to take this opportunity, which they noted was a day after Valentines Day, to eat out while the boy was at the school social. On that day the plaintiff says he had coffee and toast for breakfast, fluids during the day, and nothing else before dinner. They dropped his son off at the High School, and then went to the Smithfield Tavern, which contains Palmer Kate's Saloon. They went to the restaurant, and the plaintiff purchased a schooner of beer for himself and a lemon squash for his wife. They then sat down and selected their meals while enjoying their drinks. Both of them chose a dish known as "Veal Palmer Kate's", which the plaintiff described as a veal schnitzel with cheese and tomato sauce. His recollection was that the dish consisted of layers of veal, but witnesses called by the defendant who worked and supervised the kitchen areas said that the dish consisted of a single layer of veal. In any event, it was common ground that the meat was crumbed, and then covered with a sauce of cheese and tomato.

6. The plaintiff says that he and his wife enjoyed the meal, and had a second round of drinks. He says they engaged in normal conversation, and he noticed nothing unusual about the meal, describing it "very tender" and "quite nice". They had to pick the son up from the school function, but were in no particular hurry, taking about 45 minutes or an hour over the meal. They did not have coffee after. Mr Carman agreed in cross examination that he had previously said in interrogatories that he believed that he chewed each mouthful of the meal thoroughly. They left the restaurant, picked up the son, and returned to their home and went to bed in the normal manner with nothing amiss.

7. The next morning the plaintiff says he woke at about 5am and

"...as I went to get out of bed I felt a sharp stabbing pain in my stomach."

8. He says he tried to ignore the pain in his lower stomach, and proceeded to work, but the pain kept getting worse as the day wore on. He was unwell that night, and didn't feel like eating. The pain continued to get worse, but he again went to work on Friday 17 February. He says that he recalls seeing a general practitioner on Saturday 18 February who prescribed some tablets for a stomach upset, but no records can be found relating to this. Nothing really turns on this. The next day he says he was in excruciating pain, and his wife took him to Cairns Base Hospital, where he was admitted, and put on pain relief and antibiotics for some five days. He had nothing to eat during this period, and did improve somewhat, and was discharged on the 24^th of February.

9. He says that he began to deteriorate again, and attended an outpatient clinic on 3 March. The hospital notes show that an ultrasound and laparoscopy was suggested to follow up on the persistent pain. Dr Magnusson, the surgical registrar at the hospital, says in his report of 19 April 1995 that

"Prior to the completion of these investigations, Michel represented to the Emergency Department on 6 March 1995 with continuing right iliac fossa pain, which was severe, with no other associated symptoms. On examination, he was again tender in the right iliac fossa, and again he had rebound and guarding. Michel was admitted to hospital on this occasion again, and underwent a diagnostic laparotomy. It was found at laparotomy that there was a foreign body that had penetrated through the thickness of the bowel wall in the ileum. This area of perforation was contained within an inflammatory mass of omentum, and following its identification, the foreign body was removed. It proved to be a toothpick. The area was oversewn with an omental patch, and following this, Michel's condition improved."

10. The plaintiff made a steady recovery, was able to be reintroduced to food, and was discharged on 11 March. He was given the toothpick in a specimen container, and this was tendered as an exhibit. It is a standard wooden toothpick, sharp at both ends, and about 65mm long. It has dark stains at both ends, with the natural wood colour visible in the middle. Tests undertaken for the plaintiff by Ms Amanda Leonard, a forensic consultant, establish that, in Ms Leonard's opinion (report of 23 September 1999)

"The dark marks on the toothpick were most likely caused by burns (or carbon) and are not due to exposure to a pigment or chemical".

11. Counsel for the plaintiff argues that this makes it more likely that the toothpick was in some food that had been exposed to heat in a cooking process, rather than from a toothpick used merely for cleaning teeth and then swallowed. I am satisfied that the toothpick had been exposed to heat.

12. The plaintiff tendered invoices obtained from the defendant which shows that double pointed toothpicks were items that were ordered by the defendant from Queensland Independent Wholesalers during the relevant period. Ms Cross, who was second chef at the restaurant at the time, said that toothpicks were available for guests to help themselves to in the restaurant area, but that they were not used in the preparation of any dishes in the kitchen, and she said that no toothpicks were available for use in the kitchen for cooking. She denied that toothpicks were ever used in the preparation of any meals. In cross examination she acknowledged that when she was being taught cookery she was taught the usefulness of toothpicks in holding foods together in various cooking processes, but says that she never used them. I find it hard to accept Ms Cross' certainty that toothpicks were never in the kitchen area of the restaurant.

13. Expert reports were tendered by both plaintiff and defendant from a surgeon and gastroenterologist which addressed the likelihood of a person swallowing a toothpick. It seems that such an event is not uncommon, and there are various reported instances of persons unknowingly swallowing a toothpick or other sharp objects. There is a variation in the time it would take for an item to travel from the mouth to the point in the ileum where this toothpick lodged, which Dr Hourigan, who reported for the defendant, said would vary between one to three hours for fluids, and longer for solids. He said in his report that the clinical history of the plaintiff

"...would be consistent with having unknowingly ingested a toothpick, as alleged, about 7.30pm on 15^th February 1995, or at any time in the several days before that date."

14. With great respect to the respective experts, it seems that I am not greatly assisted by their reports, save in being confident in finding that it is possible to unknowingly digest an object as large and sharp as a toothpick. It seems to me that the most that the experts can say is what Dr Hourigan has said, and that is that the plaintiff's medical symptoms, with the onset of pain occurring from the morning of the 16^th February 1995, was consistent with him having unknowingly ingested a toothpick at some time from the time of the meal, or in the several days before that date.

15. I should observe here, as I did in the course of an exchange with counsel, that the plaintiff has been plainly honest in stating that he had no awareness of anything untoward at all while consuming the meal at the tavern. Some weeks after his discharge from hospital, and while meeting a friend at the Smithfield shopping centre that is adjacent to the Tavern, he spoke with a person who identified himself as the manager of the Tavern. Mr Carman acknowledged that he did not in that conversation assert positively that the toothpick came from the meal at the Tavern but he denies that he said he couldn't be sure where the toothpick came from. Mr Jones, who was the assistant manager, said that some time in March 1995 the plaintiff spoke with him in the public bar, after he was introduced as

"...a bloke with a slight problem".

Mr Jones says that the plaintiff said that

"he thinks this occurred here."

Mr Jones said that toothpicks were not used in food preparation. He says that the plaintiff said

"I've eaten somewhere else",

but says that he was not sure whether the plaintiff meant that on the day of the incident or not. Mr Carman denies saying he ate at other restaurants, apart from the Christmas occasion, or saying this. I do not think anything turns on this, and on the whole prefer the plaintiff's version of this conversation, although I am satisfied that Mr Jones was trying to recall events truthfully. It seems to me again to be to the plaintiff's credit that he was not making assertions that he was positive that the toothpick came from the restaurant. A claim of having felt something while swallowing but it being too late to stop would no doubt be very difficult for a defendant to disprove. Mr Carman does not claim this, but says that, given his eating habits at the time, I should be satisfied that it is more probable than not that the toothpick was ingested at the tavern, and was concealed in the veal dish.

16. There is an obvious temporal connection, in that pain was experienced the first thing the next morning . I note that the plaintiff had an active job and worked long hours, yet had no experience of pain or discomfort in the day before the meal at the defendant's restaurant. I accept that the plaintiff did not eat anything else that day, apart from toast and coffee for breakfast, which I can confidently discount as a source of the toothpick. I am satisfied that the plaintiff did not use toothpicks, and that, given the burn marks on the toothpick, it more probably than not had been contained in a meal that had been cooked.

17. The defendant submits that a toothpick could have found its way into the meals prepared and consumed at home. Mrs Carman gave evidence that she did not cook with toothpicks, and that she didn't have them in the house, saying

"Mick just doesn't like having toothpicks in the house at all. There's two things he doesn't like, and that's chewing gum and picking your teeth with toothpicks."

18. I am satisfied, on all of the evidence, that it is more likely than not that this toothpick was concealed in the meal consumed in the defendant's restaurant on the evening of 15 February 1995. Having made this finding, I am satisfied that the defendant was in breach of its duty of care in serving a meal in which was concealed an object obviously capable of causing injury without any warning.

19. I turn now to the question of damages. The principles to be applied in determining compensation in personal injuries cases have been summarised by McHugh J in Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49 where His Honour said (at 54):

"When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, `in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation'."

20. In this case the plaintiff obviously was in extreme pain and distress in the weeks following the ingestion of the toothpick. He eventually came to surgery, and his difficulties have abated. He says that he felt weakness for a long time following the accident, and doubts whether he would be up to a return to his old job as a bricklayer, although he continues to successfully work as a site manager. Dr Patrick reported in November 1998 that there had been a good recovery, although

"There has been a prolonged period of perceived lower limb weakness, but there should be no ongoing chronic problem in this regard. It has probably been nutritional."

He did however say

"The only restrictions on his work are that he should avoid very heavy lifting with the associated abdominal strain."

21. Dr Hourigan who examined the plaintiff for the defendant in October 1998 found no ongoing disability from the incident.

22. In relation to general damages, I accept that the plaintiff was in considerable pain at the time, and had a period of recuperation. There was a strain in sexual relations while he recuperated, and he was generally weak during this recovery. There is a scar, although it is not painful. His counsel acknowledges that he has now made a good recovery, save only for a concern about heavy lifting. I award general damages in the sum of $30,000, with $28,000 attributable to the past generating interest of $2,792, a total award of $32,792.

23. Out of pocket expenses were claimed and agreed in the sum of $4,330.70, which I award. No claim is made for future treatment expenses, or for Griffiths v Kerkemeyer damages.

24. No claim was made for past economic loss, although I am satisfied that he was off work for a period, and had to be careful in his return. He has subsequently made a full recovery, and is fully engaged in his profession as a site manager. A claim was particularised for a buffer in respect of future economic loss, which his counsel acknowledged would only be a modest claim, and would reflect his ongoing concern at heavy lifting following abdominal surgery. While it is unlikely given his employment record as a successful construction manager that he would find it necessary to return to manual heavy work, I accept that the medical evidence supports the view that heavy lifting is undesirable, and would make a return to his former trade as a bricklayer inappropriate, and I will make a modest award against the possibility of his economic capacity being limited should he need to utilise heavy lifting, and award the sum of $15,000 against this head of damages.

25. This amounts to a total award of $52,122.70 which I consider to be appropriate in all of the circumstances and award, with costs.

I certify that this and the eight (8) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 11 February 2000

Counsel for the Plaintiff: Ms Hartstein

Instructing Solicitors: Watling Roche

Counsel for the Defendant: Mr F G Parker

Instructing Solicitors: Minter Ellison

Dates of hearing: 6 December 1999

Date of judgment: 11 February 2000