Quadriplegic's 36-year battle for compensation

19:20, Aug 10 2014
Susan Beer
SUSAN BEER: Her bid for compensation has made its way to India's highest court.

It is a case without precedent in India. It might even be the longest-running negligence case in the world.

Unfortunately for the plaintiff, 53-year-old Queensland woman Susan Leigh Beer, the case continues to drag on more than 36 years after the accident that left her a quadriplegic.

In 1978, Susan Beer was a 17-year-old girl with a bright and exciting future before her.

She was co-captain of the Queensland women's water polo team and already had toured New Zealand and had just been invited to join the Australian team.

In May of that year, Susan joined her parents and younger brother on a trip to Delhi, where the family stayed at the five-star Akbar Hotel, a 13-storey brutalist-style fortress that was managed by the government-owned India Tourism Development Corporation.

Late on the afternoon of May 5, an extremely hot day in a month when the average daily temperature is 40 degrees, the Beer family decided to go for a swim at the Akbar's outdoor pool.


Susan's brother, Nicholas, jumped in first, followed by her mother, Pam. Her father, Geoffrey, a World War II veteran who was a backstroke champion for his regiment, slipped into the water from the edge of the pool because he was carrying a knee injury.

At about 5.15pm, Susan took off her gown and sandals and walked to the shallow end, where the depth was recorded at 2 feet 6 inches, or 76 centimetres.

Standing on the edge of the pool, while the rest of family swam towards the centre, Susan jumped in, feet first, landing on the pool's glazed tiles that were slimy with algae.

She immediately slipped backwards, cracking her head on the edge of the pool, and disappeared under the water.

''Sue has been hurt,'' her mother called out.

Nicholas reached Susan first, quickly supporting her, followed by their father, who recalled seeing blood in the water from a small cut at the back of her head.

Asking a bystander for help, Mr Beer and his son carefully lifted Susan out of the water onto the concrete at the side of the pool.

Slipping on the pool's tiles himself before he got out, Mr Beer knelt beside his daughter, asking her to move her toes and fingers. To his horror, he found that she could not.

''Oh no, please,'' Mr Beer said, asking someone to call a doctor.

When the doctor arrived, he advised Mr Beer that Susan was suffering from concussion and that she should be taken to hospital for the night in a hotel car.

Mr Beer angrily rejected this, demanding instead that the hotel call an ambulance.

It took two hours for the ambulance to arrive, and as Susan lay in the baking heat, Mrs Beer tried to sprinkle water over her daughter so she did not burn.

''My hands and my legs are going numb,'' Susan told her mother. ''They are tingling and going numb.''

When the ambulance arrived, Susan was taken to the Holy Family Hospital where she was examined by the attending physician, who told Mr Beer that his daughter had suffered a spinal injury that would paralyse her from the chin down.

Months of treatment in hospital followed, first in Delhi, then at the spinal unit of Princess Alexandra Hospital in Brisbane, next at the spinal unit of Royal North Shore Hospital in Sydney, and then in Melbourne.

''I think at the end of this treatment [in 1981] I realised that I was not going to recover any more mobility or sensation, and we decided by that time to commence this court action for compensation,'' Beer said.

With the support of Queensland Legal Aid, Beer was able to retain one of India's most eminent lawyers, Madan Bhatia, who commenced legal action against the India Tourism Development Corporation in the Delhi High Court in 1982.

The ITDC fought Susan Beer every step of the way. It was not until 1992 that depositions could finally be taken in Australia because of Beer's inability to travel abroad.

Back in India, the case was passed from judge to judge, and the ITDC used every manoeuvre within India's achingly slow legal system to halt and delay progress of the trial.

In 2007 the case was finally heard before Judge Badar Durrez Ahmed. Four years later he delivered a judgment that was a comprehensive victory for Beer.

The ITDC was negligent in every respect, according to Judge Ahmed. Not only were the tiles in the pool dangerously slippery, they were made even more unsafe by poor management and algae growth.

Claims by the ITDC that Beer had dived head first into the pool and had lied in her evidence were dismissed as fiction. Attempts by the ITDC to suggest Beer had not suffered any spinal injuries of a permanent nature were also sharply condemned.

So easily discredited were the two key witnesses produced by the ITDC that it is a wonder the corporation's lawyers had the gall to bring them before a court.

The first such witness was Balram Verma, who claimed to have been a lifeguard on duty that fateful day at the swimming pool.

According to Verma, after the Beer family came to the pool, ''the boy and the girl were playing the game of catching each other. While doing so, the girl suddenly took a vertical dive in the shallow portion of the swimming pool.''

Verma said it was he who ran to Beer's assistance, and it was he who pulled Beer out of the pool, noticing a ''bump on the middle of the head of that girl and it had become reddish''.

He also claimed to have applied ''ice and bandage on the head of that girl'', adding that he ''as well as the girl's father asked her to shake her leg but she was not able to move her leg and she started weeping''.

When asked how far from the edge of the pool Beer struck her head on the bottom, Verma answered ''two feet'', about 61 centimetres.

''The testimony of this witness cannot be believed for two reasons,'' Judge Ahmed concluded. ''The first being that he is unreliable and is not telling the truth, and the second being that his version of the incident is practicably not possible.''

The second key witness produced by the ITDC was Dr G.G. Manshramani, who tried to claim that the injury sustained by Beer was consistent with her having dived head first into the water, but in the course of giving his evidence managed to contradict himself several times.

Not only that, he was not even a surgeon, let alone a neurosurgeon, with no experience with regard to spinal injuries.

Still, the ITDC appealed, and on May 30 this year three judges of the Delhi High Court dismissed the appeal, awarding Beer a total of just over $1 million (NZ$1.1m) in damages.

Beer's father did not live to witness the judgment. Nor did her senior counsel, Madan Bhatia, who died last year.

''One wonders about the objective behind the groundless objections and the almost surrealistic nature of questioning resorted on behalf of ITDC,'' the appeal judges said.

''The attempts to prove that [the] plaintiff was a liar, despite clear and convincing answers from her end, shows a stubborn desire to somehow wrest arguing points for the final hearing.''

Describing the ITDC as callous and insensitive, the appeal judges said the transcript of the oral depositions highlighted the futility of the process in this case.

Nevertheless, Commodore Ratan Kumar Okhandiar, the ITDC's third most senior manager, told Fairfax Media the corporation will appeal to the Supreme Court, India's highest court, possibly extending the case for several more years.

''That is our intention, yes,'' Okhandiar said.

The accident was, Okhandiar maintained, entirely the fault of Susan Beer.

Sanjay Mishra, the ITDC's general manager of HR Legal, said the corporation remained firmly of the view that Beer had dived head first into the pool.

''It was her fault,'' he said. ''She dived into the shallow end of the pool. She was not supposed to dive. She dived.''

Mishra even claimed that medical records in Australia showed she dived into the pool. No such records exist.

During the interview, Okhandiar asked Mishra if the decision to appeal to the Supreme Court had actually been made.

"Ah ... more or less," Mishra said.

The lawyer representing Beer in India today is Anup Sinha, who joined the case in 2006.

''This case has made legal history in India,'' he said. ''There is no legal precedent for a negligence case like this and it has greatly enhanced the rights of victims like Susan Beer to compensation.''

As for the appeal to the Supreme Court, Sinha said he was hopeful that the court would dismiss the appeal.

Contacted at her home in north Queensland, Susan Beer said she had decided long ago that she had no interest in talking to the media and politely declined the offer to comment.

Sydney Morning Herald