Lendvay v Loxley

[1999] NSWCA 156

CITATION:	Lendvay v Loxley [1999] NSWCA 156 revised - 28/05/99
FILE NUMBER(S):	CA 40052/99
HEARING DATE(S):	24/05/99
JUDGMENT DATE:	27 May 1999
PARTIES :	Paul D Lendvay v Julie Sophia Loxley
JUDGMENT OF:	Mason P at 1; Fitzgerald JA at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	4674/94
LOWER COURT JUDICIAL OFFICER:	Ainslie-Wallace DCJ

COUNSEL:	M I Bozic (Appellant) C A Evatt (Respondent)
SOLICITORS:	Ebsworth & Ebsworth (Appellant) Petrovski Palany (Respondent)
CATCHWORDS:	Leave application; damages for loss of sight of one eye during surgery not outside limits of sound exercise of discretion.
DECISION:	Leave refused

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA40052/99
DC 4674/94

MASON P
FITZGERALD JA

Thursday, 27 May 1999

Paul G LENDVAY v Julie Sophia LOXLEY

JUDGMENT

1   MASON P: I agree with Fitzgerald JA. 2   FITZGERALD JA: Doctor Paul G Lendvay has applied for leave to appeal against a judgment delivered in the District Court on 10 December 1998, which awarded Miss Julie Sophia Loxley damages, interest and costs. The only damages were an agreed amount for out of pocket expenses and “… general damages …” of $150,000. The sole ground of the proposed appeal if leave is granted is that “… the award of general damages was so excessive as to be unreasonable and/or plainly unjust”. The submission for Dr Lendvay was that the general damages should have only been $75,000, not $150,000. 3   Shortly stated, Miss Loxley, who was born on 21 February 1946 and so aged almost 49 when she was injured in early 1994, was rendered blind in her right eye during the course of plastic surgery carried out by Dr Lendvay. 4   Not surprisingly, Miss Loxley was shocked and extremely upset when she ascertained that she had lost the sight in her right eye during what should have been a routine, safe procedure. Initially, she was hysterical, reclusive and angry, and underwent a period of depression during which she drank heavily and needed psychiatric therapy. One of Dr Lendvay’s submissions was that part of her depression was related to dissatisfaction with aspects of the cosmetic surgery which had been carried out, but I think that it would be inappropriate to reduce the emotional impact of her discovery that she was blind in one eye on that basis. 5   Her loss of sight in her right eye has, of course many practical disadvantages for Miss Loxley. Although she returned to work as a beautician after a period of months, she is handicapped in driving and has difficulty in grasping or picking up objects because her ability to judge distances has been diminished. She has difficulty in applying makeup, and has commenced wearing glasses, which she seems to consider adversely affect her physical appearance. Her vision becomes worse at night. Importantly, as the trial judge recognised, she is at risk of total blindness if she loses the sight of her remaining eye and of serious loss of vision if the sight in her remaining eye diminishes. It was conceded by counsel for Dr Lendvay that, in assessing the damages attributable to that possibility, it was appropriate for this Court to take into account that Miss Loxley will not be able to continue to work as a beautician unless her vision is adequate for that purpose. 6   I am not persuaded that the amount awarded for general damages is outside the limits of a sound exercise of discretion. See Miller v Jennings (1954) 92 CLR 190, 197; Moran v McMahon (1985) 3 NSWLR 700. 7 Accordingly, I would refuse leave to appeal, with costs.