Cruising is not all smooth sailing: Langdon v Carnival PLC t/as P&O Cruises Australia

On 20 November 2023, the NSW Supreme Court delivered judgment in the matter of Langdon v Carnival PLC t/as P&O Cruises Australia [2023] NSWSC 1406. The proceedings involved a claim in negligence brought by Peter Langdon (the plaintiff) for injuries suffered on the Pacific Aria, a cruise ship operated by P&O Cruises Australia (the defendant).

Background

On 14 November 2017, the plaintiff boarded the Pacific Aria for a 10-day voyage departing from Brisbane, visiting Papa New Guinea and the Solomon Islands. On 19 November, the plaintiff was descending some timber stairs into a pool area when one of the stairs gave way beneath him, causing him to drop suddenly, and unexpectedly onto a tiled area approximately 30cm below (the incident).

The plaintiff claimed he suffered injuries to his cervical spine and left shoulder in the incident. He also claimed to suffer psychological injury.

The defendant admitted that it breached the duty of care it owed to the plaintiff on the basis that the step gave away and collapsed when the plaintiff stepped onto it. However, the defendant denied that it was liable for the injuries and disabilities the plaintiff claimed to suffer. The defendant submitted that there was no causal link between the incident and the injuries and disabilities suffered by the plaintiff.

Relevant Facts

The incident was captured on CCTV footage. It showed the step give way following which the plaintiff dropped and landed on both feet. The plaintiff’s left arm moved to rest on the railing on the left, while his torso twisted counterclockwise. The plaintiff did not fall or land on his left side.

After the incident, the plaintiff attended the ship’s medic where he reported pain at the left ankle, neck and left shoulder.  He was examined by the ship’s medical practitioner the following day. The medical practitioner noted there was no swelling, bruising or deformity in the left ankle and no cervical midline tenderness. Some mild tenderness was observed over the distal trapezius muscle. The plaintiff was prescribed Paracetamol for pain relief.

The plaintiff continued the cruise after the incident. He did not report any other issues to the defendant and did not seek a stronger form of analgesic medication. The plaintiff was able to participate in activities including snorkelling and day trips.

The plaintiff suffered a subsequent incident on 21 December 2017 when he fell in a toilet cubicle after a Christmas lunch at a bar with friends. This incident was referred to as “the bathroom incident”.

The plaintiff lost consciousness in the toilet cubicle. When he gained consciousness there were people outside the door of the cubicle yelling to him to unlatch the cubicle door. The plaintiff made several attempts to unlatch the cubicle door but fell back each time. On one attempt he fell backwards and smashed the toilet bowl. The plaintiff denied that he hit his head or shoulder in the bathroom incident, although medical records suggested otherwise.

Causation Issue

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

1. It is more likely that the bathroom incident was the cause of the plaintiff’s cervical spine and left shoulder injury;
2. The bathroom incident is not legally or medically related to the Incident;
3. To the extent that the plaintiff’s expert evidence supports a causal link between the incident and the plaintiff’s alleged injuries and disabilities, it is contaminated because:

• The plaintiff provided an inaccurate medical history;
• The plaintiff provided an inaccurate factual account of the incident; and
• The plaintiff failed to disclose or fully disclose the bathroom incident to allow an accurate causal analysis.

The defendant submitted that only mild complaints had been made to medical professionals following the incident, which was in stark contrast to the complaints made after the bathroom incident. The defendant relied on expert medical evidence and submitted that any injury suffered in the incident would have resolved within days or weeks after the incident.

The plaintiff submitted that causation was established. The plaintiff relied on the medical evidence of his orthopaedic surgeon, who opined that the plaintiff’s injuries were the result of 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.

The plaintiff submitted that the bathroom incident did not account for his symptoms. He submitted that he did not hit his head or neck in the bathroom incident. The plaintiff also relied on unchallenged lay witness evidence as to the complaints he made following the incident.

The plaintiff also submitted that prior to the incident, he was able to work full time in his landscaping business and participate in horse racing, water skiing, camping and travel. He submitted that he had a diminished capacity for work and recreational activities because of the injuries suffered in the incident. 

Legislative Framework

Section 5D and 5E of the Civil Liability Act 2002 (NSW) set out the relevant test for causation. Section 5D requires that:

• the negligence is a necessary condition of the occurrence of harm (factual causation); and
• it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

Section 5E provides that the plaintiff bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

NSW Supreme Court’s Decision

The Court found that the plaintiff failed to establish causation.

Associate Justice Harrison was critical of the plaintiff, commenting that he had tailored his evidence to portray himself in the most favourable light. Her Honour found that the plaintiff gave inconsistent accounts as to how the incident occurred to the medical experts and to the Court. She noted the plaintiff had told his expert that he fell and landed on his left side and had subsequently tried to change his evidence to reconcile it with the CCTV footage.

Associate Justice Harrison also noted inconsistencies in the plaintiff’s evidence regarding the bathroom incident. She formed the view that the plaintiff was exaggerating his injuries, including lack of movement in the neck.

After reviewing the medical evidence, Associate Justice Harrison was not satisfied that the injuries and disabilities complained of by the plaintiff were caused by the incident. At most, she said the evidence supports a finding that the plaintiff suffered a mild neck strain or possible aggravation of pre-existing degenerative changes in the cervical spine. She found that these injuries would have been expected to resolve within a matter of days or weeks.

Accordingly, judgment was entered in favour of the defendant. The plaintiff was ordered to pay the defendant’s costs.

Conclusion

The decision in Langdon v Carnival PLC t/as P&O Cruises Australia [2023] NSWSC 1406 highlights the importance of causation in negligence claims. Even if there is a breach of duty of care, a plaintiff must still establish that the breach caused the injury, loss and damage complained of in their statement of claim.  It confirms that while common law principles in relation to causation apply, the starting point is the statutory framework, in this case the Civil Liability Act 2002 (NSW).

The decision is a good example of the importance of retaining CCTV footage of an incident where possible, and completing detailed reports relating to the circumstances of the incident and injuries alleged to have been suffered.

The CCTV footage and notes made by the ship’s medical practitioner were both important pieces of evidence in the defence of this claim, with Associate Justice Harrison finding that the plaintiff’s complaints following the incident were inconsistent with the CCTV footage.

The decision is also a reminder of the impact that medical records can have on a case and the importance of analysing the records and comparing them with the reported complaints.  Associate Justice Harrison relied on the records relating to the bathroom incident and the plaintiff’s pre and post incident complaints in concluding that causation was not established.

Additionally, this decision reiterates the value of ensuring proper instructions and materials are provided to medical experts.  The opinions of the expert medical experts were also material in the decision on causation.

If you have a query relating to any of the information in this case note or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with Nicole Oglesby, Principal in McCabes Casualty group.