Fattouch v Materials Fabrication Pty Ltd

[2016] VCC 675

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-15-02774

GEORGE FATTOUCHE	Plaintiff
v
MATERIALS FABRICATION PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE TSALAMANDRIS
WHERE HELD:	Melbourne
DATE OF HEARING:	10 May 2016
DATE OF JUDGMENT:	26 May 2016
CASE MAY BE CITED AS:	Fattouch v Materials Fabrication Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VCC 675

REASONS FOR JUDGMENT
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Subject:                    ACCIDENT COMPENSATION                 
Catchwords:            Serious Injury – hearing loss – ear drum perforation - tinnitus

Legislation Cited:    Accident Compensation Act 1985, s134AB

Cases Cited:Haden Engineering v McKinnon (2010) 31 VR 1; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Stepjic v One Force Group Aust Pty Ltd [2009] VSCA 181

Judgment:                 Application successful         

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Ruddle	Nowicki Carbone
For the Defendant	Mr I McDonald	Wisewould Mahony

HER HONOUR:

Preliminary

1       The plaintiff was employed by the defendant as a boilermaker. On 30 November 2006 he suffered an injury to his right ear whilst lying on the ground, welding a window frame.  A piece of the hot metal fell into his ear, causing a perforation of his eardrum.  The plaintiff claims that he has suffered hearing loss and tinnitus as a consequence of this injury. 

2 This is an application for leave to bring proceedings pursuant to s134(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application is made under sub-section(a) of the definition contained in s134AB(37) and the plaintiff seeks leave for damages for his pain and suffering. The body function said to be impaired is the ear.

3       Mr M Ruddle of counsel appeared for the plaintiff and Mr I McDonald of counsel appeared for the defendant.

4       The plaintiff and his wife were called to give evidence and were cross-examined.  Also in evidence were medical reports and other materials.  I have read these tendered documents, together with the transcript of the proceeding.  I shall not refer to all of the material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider to be the most relevant and which I have relied upon in coming to the conclusion referred to in this Judgment.

5       For reasons which I will explain below, I am satisfied the plaintiff suffers a permanent perforation to his eardrum, as well as hearing loss and tinnitus.  I accept that such impairment is permanent and the consequences suffered by him meet the “very considerable” test.

Relevant background

6       The plaintiff was 20 years old when the accident occurred and is now 29 years of age.  He is married, although he has been separated from his wife since August 2015.  They have a two year old daughter.  Both he and his wife gave evidence that they are hopeful of reconciling their marriage. 

7       Prior to this accident, the plaintiff enjoyed an active social life. He also enjoyed swimming frequently at the beach and in pools.[1]

[1]Plaintiff’s Court Book (“PCB”) 26

Injury and its consequences

8       The plaintiff commenced employment with the defendant in July 2005.

9       The accident, the subject of this claim, occurred on 30 November 2006.  The plaintiff was welding a large galvanised window frame.  He claimed that his supervisor directed him to lie underneath the window frame to weld it. Whilst performing this task, a piece of hot metal fell into his right ear.  He said he felt burning pain in his right ear, together with ringing, loss of hearing and dizziness.  He also said he fainted at the time.[2]

[2]Transcript (“T”) 27, Line(s) (“L”) 17

10      The plaintiff immediately attended the Austin Hospital, where he was advised he suffered a perforated right tympanic membrane, with hearing loss.[3]

[3]PCB 25

11      The plaintiff subsequently attended his general practitioner, Dr N Yacoub, at the Northend Medical Centre on 10 December 2006.  Dr Yacoub confirmed the diagnosis of a perforated right eardrum.  At that stage, the plaintiff understood the injury would heal and he was not immediately referred to a specialist.[4]

[4]T20, L4-9

12      However, as there was no improvement in his hearing, the plaintiff was referred to ear, nose and throat surgeon, Mr Simon Purser.  Mr Purser arranged for an audiogram to be performed, which revealed mild to moderate mixed hearing loss in the right ear.[5]

[5]PCB 34

13      Mr Purser recommended that the plaintiff undergo surgery in an attempt to repair the perforation. A right myringoplasty was performed on 27 February 2007.  Unfortunately, it was unsuccessful in closing the perforation and provided only slight improvement in the plaintiff’s hearing loss.[6] 

[6]PCB 44

14      Mr Purser performed a revision right underlay myringoplasty on 9 September 2008. It was initially hoped that the eardrum would remain intact, but unfortunately the graft failed, and the perforation remained.

15      The plaintiff said that whilst his hearing further improved after this second surgery, it did not resolve completely and remained a problem for him.  He also said he had a mild level of tinnitus at this time,[7] although there is no record of that in the reports of Mr Purser. 

[7]T 24, L 3-8

16      The plaintiff did not see a doctor about his ear problems for the next five years. He said throughout that period he always had issues with his ear, but he thought that was how it was going to be for him, and so did not seek any active treatment.[8]

[8]T22, L8-11

17      On 18 May 2013, the plaintiff consulted his family’s general practitioner, Dr Ragjit Rattan, in Faulkner.  He had attended upon Dr Rattan since 1997, but never in relation to his right ear injury.  On this occasion he complained to Dr Rattan about his hearing loss and he was referred to ear, nose and throat surgeon, Mr Ron Trower.

18      Prior to attending upon Mr Trower, the plaintiff was examined by audiologist, Joanna Raneny, and consultant neurologist, Dr Mark Paine, at the University of Melbourne.  Their joint report dated 29 August 2013, referred to the plaintiff’s work injury, and noted that it had resulted in hearing difficulties on his right side.  The report expressly stated that the plaintiff “does not report ear pain or bothersome tinnitus”.[9]  The report concluded that the plaintiff suffered mild mixed loss of hearing in his right ear.

[9]PCB 47

19      The plaintiff was examined by Mr Trower on 13 September 2013.  Mr Trower obtained the history of the work injury and the two surgical attempts to repair the eardrum perforation.  He noted that the plaintiff had some difficulty understanding on the right side, particularly in the presence of background noise.  He recorded that the plaintiff is “not aware of tinnitus or vertigo”.[10]

[10]PCB 48

20      The plaintiff did not return to Mr Trower.

21      The plaintiff was dismissed from his employment with the defendant in November 2013, following an altercation with his co-workers.  He has subsequently obtained boilermaking work with a new employer.

22      The plaintiff re-attended upon Dr Rattan on 1 April 2014 complaining of right ear pain.[11]

[11]PCB 52

23      The plaintiff next attended Dr Rattan on 2 August 2014 and 13 November 2015 in relation to right otitis media, which was treated with antibiotics. 

24      At that latter appointment, the plaintiff also complained of loud tinnitus in his right ear, and Dr Rattan referred him to a tinnitus management team, operating as part of the Hearservice Clinic in Box Hill.

25      The review was conducted by speech pathologist Mr Steve McKean. He was advised the tinnitus had commenced after the work accident, and he noted that the plaintiff described the tinnitus as “a constant, high frequency sound (like a ‘windy day at the beach’).[12]

[12]PCB 60

26      The tinnitus review indicated that the plaintiff suffered a significant reaction to tinnitus.[13] He obtained an overall score of 89 out of 100, on the review, which measured the impact of tinnitus on the following areas: intrusiveness, sense of control, cognition, sleep, auditory, relaxation, quality of life and emotion.  The report stated that in all of those areas, except for sleep, the tinnitus was having a major impact on the plaintiff, that is, he received scores of more than 80 out of 100.  It was only in relation to sleep that he suffered a moderate reaction, with a grade of 67 out of 100.

[13]PCB 57-59

27      Mr McKean made recommendations to the plaintiff as to how to minimise its impact, including avoiding silence, together with the recommendation of a hearing aid to help to decrease the perception of the tinnitus.[14]

[14]PCB 58

28      The plaintiff was recently referred for a hearing aid and is currently seeking approval from WorkSafe for the payment of this hearing device.[15]

[15]PCB 7

29      The plaintiff had suffered ear pain and dizziness after the initial trauma, but this was relatively short-lived.[16]

[16]T27, L15-23

30      The plaintiff claims that he suffers frequent infections in his ear, with some of these infections lasting for a month.[17]  He takes medication to control these infections.  He said it is difficult to avoid the infections as they are brought on by exposure to dust, loud noise or water. 

[17]PCB 7

31      The plaintiff has to avoid getting water into his right ear and is therefore unable to swim.  He takes his young daughter to the swimming pool but wears an ear plug and does not put his head under water.[18] 

[18]T28, L8-14

32      The plaintiff complains that his hearing loss makes it difficult for him in social settings.  He said when there is background noise, including many people talking or music playing, he finds it hard to hear.  He is embarrassed asking people to repeat what they are saying, and he gets frustrated by this.[19]  He said he will often arrive at a social event and soon after move away to a quieter area where he can talk to one or two people individually, or he will go to a separate area where he can watch television on his own or just sit quietly.[20]

[19]T30, L13-24

[20]T30, L28-31, T31, L1-4

33      The plaintiff said that the tinnitus was initially a very minimal problem, but that it has worsened in the last few years. He said he now suffers constant ringing which fluctuates in its intensity.[21]  

[21]T29, L30-31, T30, L1-3

34      The plaintiff said that his hearing loss and tinnitus does not interfere with his capacity to work as a boilermaker. 

35      The plaintiff’s wife also gave viva voce evidence. She confirmed the plaintiff has difficulties with hearing, such that he often did not hear what she said to him, unless she raised her voice.[22] She had observed him becoming withdrawn in social settings. She had encouraged him to get a hearing aid and assured him she would not think differently about him if he wore one.[23]

[22]PCB 9

[23]T33, L1-4

36      The plaintiff’s wife also said that when they lived together, the plaintiff had a discharge on his pillow most mornings, which increased when he had an ear infection.[24]

[24]PCB 10

Medico-legal evidence

37      The plaintiff’s solicitors arranged for him to be examined by ear, nose and throat surgeon, Mr Michael Silverstein, on 21 July 2015.  Mr Silverstein obtained the details of the workplace incident, including the hearing loss which has persisted since the time of the accident.  Mr Silverstein noted the plaintiff’s complaint of ringing in the ears, but does not expressly state when such symptoms commenced.  He also noted that the plaintiff suffered right ear infections from time-to-time, involving intermittent ear discharge.

38      Mr Silverstein concluded that there was a direct relationship between the hot metal entering the plaintiff’s ear canal and him suffering damage to the eardrum, causing hearing loss and tinnitus, as well as the persistent perforation of the eardrum.  He considered that the hearing loss was permanent and that it would cause the plaintiff social difficulties in the presence of background noise. 

39      Further, Mr Silverstein noted that the presence of the perforation meant that the plaintiff would:

“require protection when he enters water, either pool water, sea water or a shower as this would lead to infection with subsequent use of antibiotics and analgesics for the release of discharge and the relief of pain.”[25]

[25]PCB 66

40      Mr Silverstein considered the possibility of a third surgical procedure to repair the perforated eardrum.  However, he noted it could be associated with numerous hazards, including the risk of further hearing loss and the risk of enlarging the perforation. 

41      Mr Silverstein’s report focused on the hearing loss and eardrum perforation, with no reference to the consequences arising from the tinnitus. 

42      The plaintiff also relied upon medical reports of otolaryngologist, Mr Hugh Millar, who examined the plaintiff on behalf of the defendant’s solicitors on 22 September 2014 and 12 May 2015.

43      In his report dated 22 September 2014, Mr Millar noted the work injury, the resultant hearing loss and the two surgical attempts to repair the perforated eardrum.  Mr Millar also noted that the plaintiff’s complaints related to right sided hearing loss with tinnitus and occasional discharge from the right ear.  He considered that the ear drum perforation would be permanent and that it would prevent the plaintiff from swimming or doing any form of water activity, as water entry to the right ear would cause otitis media.

44      In his subsequent report dated 12 May 2015, Mr Millar again noted the permanent perforation of the right tympanic membrane. He stated the plaintiff suffered right sided hearing loss of 25.4 per cent and his binaural loss was 7 per cent. He described this hearing loss as “significant compared to the overall population.”[26]

[26]PCB 17

45      He said the plaintiff could not swim unless he wore adequate protective equipment such as an earplug, plus head cover.[27]

[27]PCB 14

46      Mr Millar raised the possibility of a third surgical attempt to repair the right tympanic membrane.  He said if such surgery was performed, and was successful, it would allow the plaintiff to swim but may not necessarily improve the plaintiff’s hearing. He also recommended the trial of a hearing aid, and said it might improve his ability to communicate in social situations.[28]

[28]PCB 17

Credibility

47      As Maxwell P said in Haden Engineering v McKinnon[29] at paragraph 12:

“…the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[29](2010) 31 VR 1

48      The defendant sought to challenge the plaintiff’s credit on the following grounds.  These were as follows:

(i)        The plaintiff had previously been charged and convicted in respect of two crimes of deception.  The first was in August 2009 when the plaintiff was convicted of presenting a forged prescription for steroid medication.  The second conviction was in relation to an offence he committed in June 2013 when he lifted a boom gate in a shopping mall and drove off without paying.  The plaintiff had also been convicted of speeding charges as well as, on two occasions, driving whilst unlicensed.  These criminal offences were raised in the plaintiff’s affidavit sworn 13 April 2016.[30]

[30]PCB 8

I considered the plaintiff to be candid when asked about these matters in cross-examination. His prior wrongdoings do not impact upon my assessment that he was a reliable witness.

(ii)       The plaintiff failed to tell two medico-legal psychiatrists that he is currently separated from his wife.  His solicitors arranged for him to be examined by Dr Albert Kaplan, psychiatrist, in December 2005, but he did not inform Dr Kaplan that he had separated from his wife several months earlier.  He also failed to tell Dr Dush Shan, psychiatrist, who he saw for the defendant’s solicitors in February 2016.

When asked about his failure to tell these doctors about his separation, the plaintiff said that he was, in part, in denial about his separation as he was still very close to his wife and hoped to reconcile with her.[31]

[31]T17, L11-14

Mr McDonald required the plaintiff’s wife to be cross-examined in relation to the affidavit which she had sworn on 13 April 2016.  Leave was granted.  She confirmed that she and her husband were presently separated and that she, too, hoped to reconcile the relationship.  Mr McDonald did not take the matter any further. 

I consider the plaintiff’s explanation as to why he did not tell the psychiatrists about his separation as understandable, and I am not satisfied that it impacts adversely upon his credit generally.

(iii)      Of most significance, Mr McDonald attacked the plaintiff’s credit in respect of his significant delay in complaining of tinnitus.  It was put to the plaintiff that he only mentioned tinnitus in November 2015, once he had become involved in the litigation process and after he attended a settlement conference.[32]  The plaintiff denied this. He said the tinnitus had always been there, but that it had worsened in the last three years.[33]

[32]T26, L7-24

[33]T26,  9-10

He said he did not know the meaning of the word tinnitus, but rather  described it as “ringing in his ears”.  The plaintiff agreed that he may not have mentioned it to Dr Yacoub, Mr Purser, Mr Trower and Ms Remenyi. He explained his failure to do so was because it was initially only a minimal problem for him.[34]

[34]T23, L 1-27, T 24, L 3-8

Mr McDonald did not put to the plaintiff that he was making up the tinnitus.  He said that if he did suffer any tinnitus, it was mild and did not impact on his life in any significant way. The plaintiff denied that.

None of the doctors take issue with the presence of the plaintiff’s tinnitus. 

Therefore, accepting that the plaintiff suffers tinnitus, irrespective of when that condition first manifested itself, I accept that it is related to the perforated eardrum and his hearing loss.  I accept the plaintiff’s evidence that it was initially mild, but that it has worsened recently. I do not consider his delay in reporting the presence of tinnitus reflects negatively on his credibility or the veracity of his complaints for that reason.

49      I found the plaintiff gave his evidence in a simple, straightforward and believable manner. I accept him as reliable and creditworthy.

Permanent

50      In order to satisfy the definition of serious injury, the plaintiff must prove his injury and its consequences are both serious and permanent.  The authorities have defined the latter to mean “likely to last for the foreseeable future”.[35] 

[35]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [34]

51      I am satisfied that the plaintiff’s injuries and the consequences which flow are permanent.  He has had two surgical procedures to repair his perforated ear drum, but neither worked. Mr Millar raised the possibility of a third attempt at surgical repair, but Mr Silverstein considered that the success of such a procedure could not be guaranteed, and that it carried with it a risk of further hearing loss. There is no evidence the plaintiff is contemplating such surgery. I therefore accept that the injury is permanent.

Pain and suffering consequences

52      Having thus accepted that the injury is permanent, I must now consider whether the plaintiff’s right ear impairment satisfies the requisite serious injury test.

53      I accept he suffers the following consequences as a result of his right ear impairment:

·    Hearing loss which interferes with his ability to enjoy social occasions, especially when there is lots of talking or music. He finds this embarrassing and frustrating.

Mr McDonald cross-examined the plaintiff on numerous Facebook entries which showed him looking happy and socialising with family and friends.[36] The plaintiff conceded that he still attended social events, but not as much as before his accident. He said it was hard being with friends anymore.[37] He mostly now attends family events. He makes an effort to take his daughter to these events, but after a short time there, he will isolate himself because of the noise and his difficulty hearing.[38]

[36]DCB 27-48

[37]T28, L30

[38]T29, L16-22, T30, L28-31, T31, L1-4,

I consider this a very significant consequence for the plaintiff. He is relatively young and his ability to enjoy social events where there is background noise, has been permanently curtailed.

·    Requirement of two surgical procedures, both of which have failed to repair his perforated eardrum. This perforation is now permanent.

·    The need to avoid exposing his right ear to water. This affects him whenever he has a shower. I consider this would be a daily inconvenience of some significance.

·    A restriction on his ability to swim.

Mr Millar stated that it would be possible that he could use an ear plug and cap, but the plaintiff was not asked about this in cross-examination.

I am satisfied the plaintiff’s history of recurrent ear infections well-explains his reluctance to expose himself to the potential of further problems of that type, by his decision not to immerse his head in water.

I therefore accept the plaintiff’s evidence that his injury prevents him swimming.  He has been permanently denied the pleasure of swimming  either at the beach or in a pool. As this was something he previously enjoyed doing on a frequent basis, I consider this a significant consequence. 

·    He has also been advised to avoid activities such as diving and flying.[39] Given that travel by flying is a common feature of life, I consider this restriction to be of some significance.

[39]PCB 26

·    Regular infections of the right ear, lasting up to one month, and requiring medication.

·    Constant tinnitus or ringing in his ear, with varying intensity. 

54      The impairment claimed by the plaintiff is uncommon. Judges are often required to consider impairment arising from injury to the spine, shoulders or knees, much less so the impairment of one of the primary senses. In performing my task in this case, I must make a comparison to other cases in the range of possible impairments. In doing so, I am mindful that I must consider the broad spectrum of cases which this Court sees. As was noted by Ashley JA and Beach AJA in Stijepic v One Force Group Australia Pty Ltd & Anor[40]:

“this includes cases which do not end up in litigation-because, it may be supposed, the consequences are glaringly apparent one way or the other.”[41]

[40][2009] VSCA 181

[41]Ibid at [42]

55          It is relevant for me to consider that the plaintiff will suffer these consequences for a very long time. The plaintiff suffered his injury at age 20 and is now only 29 years of age. As was stated by the Court of Appeal in Stepjic:[42]

“…it is relevant to look at the likely period for which those consequences will be experienced. All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.”

[42]Ibid at [43]

56      I consider the consequences for the plaintiff, as detailed above, when looked at collectively for a 29 year old man, are very considerable.  The tinnitus, hearing loss and need for caution in the shower, affect him on daily basis. Further, I consider that his inability to swim, and the restriction on his ability to enjoy social activities, although not a daily interference, will permanently impact on his enjoyment of life, for many years to come.

Conclusion

57      In considering the evidence as a whole,  I am satisfied the plaintiff meets the definition of serious injury. I therefore grant him leave to commence a claim for common law damages for his pain and suffering. 

58      I shall make the consequent orders.