January 16, 2015

Shipping giant Carnival Cruises has lost a court bid to prevent substantial damages being awarded to a cruise passenger for injuries as a result of part of its ship’s ceiling collapsing over his head.
Graham Welsh – a senior construction manager from Sydney – was injured aboard the Pacific Sun in international waters as it neared Fiji on the second day of his two week South Pacific holiday in June 2009.

He did not lose consciousness but the blow was enough to cause headache, dizziness and vomiting.
Treated by the ship’s physician for a head injury, he was referred to a hospital in Suva – the ship’s next port of call – for a CT scan.

The following day, while other passengers disembarked for excursion adventures, Welsh took a taxi to the hospital for the test. Specialists back in Sydney would later confirm he sustained “post-concussion syndrome”.

But his troubles with Carnival didn’t end there.

On return to the port, the ship had – to his astonishment – already sailed. With little cash in his pockets, he bartered his camera to fund a flight and drivers to get him to the ship’s next calling point, at Nadi on the other side of Fiji Island.

Welsh made it to the wharf in good time but security guards at first barred from boarding as his necessary credentials were in his cabin on the vessel. Eventually allowed to re-board, he did what he could to enjoy the remaining 10 nights of the voyage.

Not satisfied with the two bottles of wine and an expression of regret from Miami based Carnival Cruises, Welsh consulted lawyers who recommended an injury compensation lawsuit in New South Wales District Court.

Work colleagues gave evidence to varying degrees, that since the accident, he had been more aggressive, less communicative and had diminished mental acuity. Against the medical background was the substantial grievance he naturally felt as a result of Carnival’s conduct – its failure to acknowledge the significance of the event and its paltry attempts to ameliorate his position – that then became the subject of workplace taunts and diminished collegial respect.

Specialist psychiatrists Professor Lorraine Dennerstein and Dr Fong gave evidence that a post-traumatic stress disorder resulting from the episode affected his cognitive processing speed and neuropsychologist, Carol Burton concurred.

Trial judge Robert Sorby accepted after a five-day trial, that Welsh had sustained a mild brain injury as a consequence and had been left with a slower speed of information processing. But the judge ordered total damages of just $22k, concluding from his observation of the claimant in the witness box, “there did not appear to be any loss of sharpness of thought or concentration”.

He assumed at Carnival’s urging – because Welsh was still functioning at a relatively high level and had since started his own business and employed 5 staff – that he had suffered no deficit as regards income earning capacity.

The appeal judges were scathing of the cruise line’s contentions. “The appellant was clearly a person who it functioned a high-level pre-accident and the fact that his functioning remained high did not mean the evidence of medical specialist witnesses could be dismissed without a cogent explanation”.

The trial judge had no pre-accident experience of the appellant and should not have concluded merely by observing him, whether or not he had changed in the manner in which the medical evidence suggested.
Indeed the judge’s award for general damages based on a 20% impairment and his allowance for future medical treatment, were inconsistent with such a course.

“The primary judge failed in his duty to refer to material evidence and his reasons were inadequate to fulfil the judicial function”.

Unfortunately, the appeal judges were not in a position themselves to adjudicate the evidence.
The matter was referred back to the New South Wales District Court for a retrial where Carnival gets another opportunity to oppose Mr Welsh’s claim for his onboard injury compensation.

Have you been injured at work, in a vehicle accident or in a private or public place? You may have a legal right to personal injury compensation.

Welsh v Carnival PLC trading as Carnival Australia [2014] NSWCA 430 McColl JA Sackville AJA Adamson J 12 December 2014 – view decision

Categories: Personal Injury , Litigation & Law Practice , Holiday & Travel Law

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