Jeronimus v VWA
[2022] VCC 1920
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-01344
| Aelian Jeronimus | Plaintiff |
| v | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | Her Honour Judge Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 October 2022 | |
DATE OF JUDGMENT: | 11 November 2022 | |
CASE MAY BE CITED AS: | Jeronimus v VWA | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1920 | |
REASONS FOR JUDGMENT
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Subject:WORKPLACE ACCIDENT COMPENSATION
Catchwords: Serious injury – right eye impairment due to assault in the workplace – pain and suffering
Legislation Cited: Workplace Injury and Rehabilitation Act 2013 (Vic)
Cases Cited:Sabo v George Weston Foods [2009] VSCA 242
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Taylor | Arnold Thomas & Becker |
| For the Defendant | Mr A Saunders | Hall & Wilcox |
HER HONOUR:
Introduction
1Mr Jeronimus seeks leave under s 355 of the Workplace Injury Rehabilitation and Compensation Act 2013 for leave to issue proceedings for damages for pain and suffering only in respect of an injury to the eye suffered on 16 August 2003 while working for Dandenong Hospital.
2Mr Jeronimus is 73 years old and migrated to Australia from Sri Lanka in 1984. He qualified as a psychiatric nurse in England in 1978 and worked in hospitals there. Between 1984 and 1994, he worked as a registered nurse at a hospital here. He then worked in nursing homes for three years.
3In about 2002 or 2003, he returned to psychiatric nursing, this time at Dandenong Hospital. While working there on 16 August 2003, he was assaulted by a patient and sustained an injury to the right eye in the form of severe glaucoma, swelling, bruising, blurred vision, and pain secondary to the assault. After the assault, he changed positions and became a charge nurse at Maroondah Hospital, a role in which he was less exposed to patients.[1] He continued working there until he retired in 2016.
[1] Plaintiff Court Book (‘PCB’) 101.
4He has been treated by specialists since August 2003, taking eye drops and other oral medications to control the pressure in his right eye, so as to avoid surgery. He has also had two injections to the right eye.
5He has suffered a permanent loss of peripheral vision in all quadrants of the right eye, but particularly in the area of 2-4 of the clock. This loss of peripheral vision affects his depth perception and makes him unsteady on steps, stairs and uneven ground, predisposing him to stumbling and falling, particularly in poor light. He has had up to six major falls since his injury. He has to walk with caution and hold rails when descending stairs. He has been using a crutch to assist with stability since late 2021. He has blurred vision when reading. He drives with caution but is afraid to carry his grandchildren for fear of falling. He was still playing competitive cricket with old school mates and on other teams at the time of the assault, when he was aged 54. He intended to keep on playing, and misses playing cricket.
6Although he was able to keep working until his retirement in 2016, he said that he used the lift to move between floors and was able to manage his nursing duties, which allowed him periods of sitting. He was anxious about emergencies on the ward in which his impaired peripheral vision might prevent him from seeing a patient behind him, in which case he risked being assaulted again. However, he remained able to supervise teams when they attended a Code Grey on the ward. He was able to travel to Sri Lanka once or twice per year because it was a familiar place to him, and he had family there to help him. He was unable to go sightseeing. He went to the USA and UK in 2016 but found he had to be extra careful when walking.
The issue
7Mr Jeronimus’ counsel submitted that he has suffered a significant degree of permanent visual field loss as a result of the trauma-related severe secondary glaucoma, which has required ongoing medication (eye drops) to prevent further deterioration. Any deterioration would lead to a need for surgery. He has suffered the pain and suffering consequences of this injury for the past 18 years and will likely endure them for a further 15 years. His loss of peripheral vision has led to an inability to continue playing cricket, which he misses, difficulties walking, reading and playing with his grandchildren due to his unsteadiness and compromised depth perception.
8The defendant acknowledged that Mr Jeronimus has suffered a permanent impairment of the function of part of the affected eye, which limits his ability to read and play with his grandchildren, but said that he would have stopped playing cricket a few years after 2003 due to his age; that otherwise he retained the capacity and mobility to perform demanding work as a psychiatric nurse for 13 years until he retired, and to manage his activities of daily living, to drive and to travel abroad. For these reasons, the defendant says that the pain and suffering consequences of his eye impairment are not more than considerable when compared with other cases in the range of impairments of body functions.
9At the hearing, Mr Jeronimus gave evidence and was cross-examined. There were no other witnesses. The plaintiff tendered a court book which contained, amongst other things, two reports by A/Prof Justin O’Day who examined the plaintiff on behalf of the defendant; no issue was taken by the defendant with the diagnosis and treatment described in the plaintiff’s medical material.
10The weight of the expert evidence from 2004 through to 22 October 2022 was to the effect that Mr Jeronimus’ ocular pressure in his right eye remained well controlled on the same combination of topical medications and oral Diamox, and that his visual field loss has remained unchanged. Dr Marcel Favilla, his treating ophthalmologist, reported on 20 June 2022 that any further loss of vision in the right eye could impact on activities requiring good binocular function,[2] including driving and playing ball sports. A/Prof O’Day noted in his report dated 2 September 2022 that Mr Jeronimus complained of issues with depth perception which led to frequent falls and stopped him from playing cricket.[3] He also reported being hesitant to drive due to his focal visual field loss in the right eye. At the hearing Mr Jeronimus agreed that he was able to drive and his licence was not restricted.
Findings and reasons
[2] Ibid 91.
[3] Ibid 116.
11I found Mr Jeronimus to be a straightforward, understated witness and I accept his evidence as to the pain and suffering consequences of his right eye impairment.
12As a consequence of the trauma to his right eye, Mr Jeronimus has for the past 19 years, since his mid-50s, suffered severe glaucoma secondary to the trauma, as well as a loss of peripheral vision in all quadrants of the right eye. He has taken daily medication to ensure that the ocular pressure in the right eye remains stable, failing which he will require surgery. Whilst he was able to maintain employment until he retired in 2016, this fact is not determinative against his establishing the pain and suffering consequences of his injury.[4] The impact of his permanent right eye impairment, apart from the need to take medication, is that very basic activities like walking and using stairs and steps were affected from 2003 by a loss of depth perception, resulting in unsteadiness and a substantial number of falls. This has resulted in his giving up a treasured leisure activity, cricket, and in his being reluctant to lift his grandchildren for fear of falling. In addition, loss of peripheral vision has affected his ability to see who is behind him to his right and has affected his confidence in driving. Although he can travel to familiar places with family support, elsewhere he cannot go sightseeing. He will have to manage these consequences for the rest of his life.
[4] Sabo v George Weston Foods [2009] VSCA 242 [71].
13In all the circumstances, I consider that the pain and suffering consequences of his right eye impairment are more than considerable when compared with other cases in the range of permanent impairments.
Conclusion
14Leave is granted to Mr Jeronimus to issue common law proceedings for the recovery of damages for pain and suffering in respect of the injury to his right eye suffered on 16 August 2003.
15I reserve the questions of costs.
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