Luo v A and J Australia Pty Ltd
[2014] VCC 469
•15 April 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-01976
| XI LUO | Plaintiff |
| v | |
| A & J AUSTRALIA PTY LTD | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 February 2014 | |
DATE OF JUDGMENT: | 15 April 2014 | |
CASE MAY BE CITED AS: | Luo v A & J Australia Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 469 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – penetrating injury to the left eye
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Medlan v The State Government Insurance Commission [1995] HCA 5; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292
Judgment: Proceedings dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S McCredie | All States Legal Co Pty Ltd |
| For the Defendants | Mr D Churilov | Hall & Wilcox |
HIS HONOUR:
Introduction
1 On 29 January 2010, Mr Xi Luo, the plaintiff, was employed as a process worker by A & J Australia Pty Ltd (“the employer”). On that day, he was performing his normal work duties, which included operating a plastic mould machine. Those duties included the removing of excess plastic from bucket moulds by the use of a knife. The task required him to form a tight grip with his right dominant hand and slash at the plastic in a repetitive sweeping motion. Whilst performing this task, the knife slipped out of his right hand and penetrated his left eye.
2 By an Originating Motion filed in this Court, the plaintiff seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings at common law against the first defendant. He relies upon paragraph (a) of the definition of “serious injury” in s134AB(37) of the Act – namely: “permanent serious impairment or loss of a body function”, being the left eye.
3 At the hearing of the application, the plaintiff confined his application to one for leave to claim pain and suffering only. His counsel submitted that his claim was so confined because of an apprehended inability to satisfy sub-paragraph (ii) of s134AB(38)(b) of the Act.
4 At the hearing of the application, the plaintiff relied upon three affidavits sworn by himself and upon medical reports of treating and examining doctors. The respondents relied principally upon medical reports and a Certificate of Capacity dated 8 June 2011.
5 No issue of credibility arose on the hearing of this application.
6 Prior to the injury, the plaintiff suffered from myopia in both eyes and wore prescription glasses as a result thereof and has continued to do so since the injury.
7 The plaintiff explicitly disavowed reliance upon any psychological or psychiatric consequences of the compensable injury (see s134AB(38)(h) of the Act) but contended that one of the physical consequences of the injury was a “reluctance” to re-engage in factory work because of fear of further injury to his eyes. (See Medlan v The State Government Insurance Commission[1]). On the other hand, counsel for the defendants submits that any such “reluctance” sounds in a psychological sequelae which is explicitly intended to be stripped away from the physical consequences.
[1][1995] HCA 5
The Plaintiff’s background
8 The plaintiff is a man now aged twenty-eight, having been born in September 1985 in Nanjing in the People’s Republic of China. He is married and has no children. He completed a high school equivalent in the People’s Republic of China and thereafter, a completed a Diploma in Human Resources, which was completed in about 2006. He migrated to Australia in 2007 and in that year, commenced a Diploma in Mechanical Engineering at Holmesglen TAFE. In or about 2009, he completed this course. During this study period, he undertook a variety of odd jobs with various employers, including pizza delivery, cleaning and kitchenhand work.
9 In or about January of 2010, he commenced working as a process worker and suffered the relevant injury in the second or third week of his employment.
Treating medical history
10 Upon suffering the injury, he was driven to the Royal Victorian Eye & Ear Hospital (“the hospital”), where he was treated by a specialist ophthalmologist. He underwent surgery the same day to repair the penetrating wound in his left eye and remained in hospital overnight.
11 On or about 9 February 2010, he underwent a vitrectomy procedure performed by an ophthalmologist at the hospital. Apparently the surgery involved the injection of oil and gas into his left eye to repair damage to the left retina. Once again, he remained in hospital overnight.
12 On or about 5 March 2010, he underwent a third surgical procedure on the left eye at the hospital. The ophthalmologist removed the gas bubble in his left eye and removed some of the sutures. Once again, he remained in hospital overnight.
13 Following these surgeries, the plaintiff returned to China to be cared for by his family for approximately six months. In or about September 2010, he returned to Australia. At this stage, he was not married.
14 In or about September 2010, he consulted a general practitioner, Dr Vladimir Caric.
15 On or about 23 February 2011, he consulted a Dr Jan Giles, who removed the final suture in his left eye.
16 In or about October 2011, the plaintiff attended the South Gippsland Family Medicine Clinic. Following that consultation, a “specialist” removed sutures from his left eye but apparently there were still some left.
17 The only treating evidence by the plaintiff is a report from the treating practitioner, Dr Renuka Bathija, who performed the original emergency surgery on 29 January 2010 (exhibit B).
18 The defendants tendered in evidence a report from a treating specialist, Dr Weng Tg, dated 19 September 2011 (exhibit 1). Dr Tg reported back to the South Gippsland Family Medicine Clinic to the effect:
“… I found that he has a loose suture in the left eye as well as the end of another suture sticking out. They were both removed today. Another well embedded suture broke in half when I tried to remove it. He should use Ocuflox two hourly and FML tds in the left eye until his review in 10 days time.”[2]
[2]Defendants’ Court Book (“DCB”) page 15
19 Thereafter, on review on 30 September 2011, Dr Tg reported as follows:
“Mr Luo was reviewed today regarding his left penetrating injury corneal scar. Following suture removal he is a lot more comfortable. Examination today did not show any inflammation in the left eye. There are no more loose suture ends. I have asked him to use Ocuflox and FML twice a day for one week and then he can stop the eye drops. Fundoscopy was unremarkable in the right eye and the left eye has a left superior chorio-retinal scar from a penetrating eye injury.
He has been advised to see his optometrist on annual basis. I am happy to see him at any time if he has any problems. Otherwise a two year review would be recommended.”[3]
[3]Exhibit 1
20 There are no further reports from treating medical practitioners.
Medico-legal examinations
21 The plaintiff was seen by ophthalmologist, Dr David Gale, on 11 November 2010 (exhibit 2). He took a history that the plaintiff said he was unable to see with his left eye as well as he did before. He was also very susceptible to glare. It was noted that he had enlarged pupil on the left side. Apparently, whilst he was in China, he was tested for glasses but he kept the glasses that he had before the accident. Dr Gale noted:
“… They were largely a spherical correction with a small astigmatism correction in each eye.”[4]
[4]DCB 19
22 At that time, he was not having any treatment or medication. Dr Gale noted that the plaintiff was managing fairly well but he was anxious about his eye because he did not know where to go and have any further treatment if it is required.
23 Examination of the left eye showed that there were six or more sutures still in position, being ten months after the accident. The plaintiff did not find this uncomfortable. It was noted there was surrounding scarring from the area of the suture lines and this extended slightly onto the adjacent sclera near the scarred cornea. It was stated that this was the cause, with a dilated pupil, of the symptoms of glare. It was noted the plaintiff had no double vision and that the corrected vision of the left eye, being better than 6/5 “is an excellent result from such an injury”.
24 It was further noted that the plaintiff was able to undertake normal activities of daily living. Although he was having no active treatment at that time, it was suggested that if he returned to the workforce, he would require new glasses and safety glasses to an appropriate correction.
25 The diagnosis was that the plaintiff had:
“… a perforating corneal injury with secondary changes inside the globe. These included a partial anterior vitrectomy and an iridectomy. It would appear that the nature lens has not been injured.”[5]
[5]DCB 21
26 It was considered unlikely the plaintiff would be unable to return to the pre-accident duties whilst he had sutures in the eye but he would able to return to work once the appropriate glasses had been re-ordered. Once the sutures had been removed, there were no other factors which would hinder his return to work. However, it was noted he would not be suited to outside activities because of the degree of glare and that that is probably not going to improve.
27 Dr Gale considered that the plaintiff had had a serious injury to his left eye and it was surprising that visual acuity was as good as it was. He would require new glasses for him to be able to see better and it was his opinion that he would be susceptible to glare for the rest of his life and he would need tinted distance glasses.
28 The plaintiff was re-examined by Dr Gale on 11 November 2013. He noted that there had been no further surgery since last seen and he noted that on his last examination, there were some mild macular changes. In the present examination they were not apparent and these areas now appeared normal. The plaintiff still had “some symptoms of glare”. He noted that the papillary changes have not changed, except that the sutures had been removed. The plaintiff said he could still not see as well with his left eye as he did with his right eye, even with correction since November 2010. Examination of the left eye showed scar tissue invading the cornea superficially and extending it to the stroma where the perforation of the globe had taken place.
29 Dr Gale noted that the plaintiff was currently working in aged care and he had an intention of maybe trying to study Chinese medicine in the next year or so. He had not had any treatment or surgery since November 2010 and although he wore glasses for his myopic correction, this was not related to his injury.
30 The diagnosis was still one of a perforating corneal limbal injury to the left eye. It was noted he was still susceptible to glare due to the failure of full contraction of the iris as a result of the injury. Dr Gale thought if the plaintiff had developed a traumatic cataract, it probably would have happened by now. Further, he stated:
“… If, in later years, he developed a cataract of his left eye, but not, at least straight away of the right eye, it could be difficult to exclude this injury as being, a partial aggravating factor in that development. If cataracts developed together it would be more difficult to relate the left on to the present accident.
…
… if he developed dense lens opacities that obscured the vision [t]hey would require removal [by surgery]. … such surgery would be related to the accident in January 2010 if only the left eye was involved.
… Generally it is a standard procedure and the success rate is high. …”[6]
[6]DCB 29
31 The plaintiff was also examined by ophthalmologist, Dr R H West, on 6 April 2011 (exhibit 3). Dr West considered the plaintiff had suffered a penetrating injury of his left eye in the course of his normal work and it appeared to have been complicated by a peripheral retinal break or detachment. His condition at that time was one of a full-thickness corneo sclera scar, iris adhesions to the peripheral cornea, and peripheral chorio retinal scarring in the left eye.[7]
[7]DCB 34
32 The injury and his visual functions were stable and his recovery from his eye injury had been excellent and his lifestyle at that time was not affected in any respect by the injury. The prognosis for vision was good.[8]
[8]DCB 34
33 The plaintiff was next examined by Dr Timothy Entwisle, psychiatrist, on 20 May 2011 and 14 May 2013 (exhibit D). On the first occasion, his history as to current symptoms was as follows:
“[The plaintiff] did not describe any pain or incapacity as such as a result of his eye injury.
[He] continues to be able to ambulate in the normal way.”[9]
[9]DCB 40 – 41
34 His sleep was said to be normal, as were his energy levels and memory and concentration.
35 It was noted that the plaintiff had returned to work on alternative duties. However, he was often anxious in the workplace and had become particularly embarrassed that he is not able to return to his pre-injury duties. He considered that people were either making comments or at least thinking that he should be back at his normal duties. The plaintiff said that he finds that he is still nervous around knives in the workplace and essentially has decided to work elsewhere and is applying for jobs in that regard. The diagnosis was one of an Adjustment Disorder with Anxiety.[10]
[10]DCB 40
36 On the second occasion on 14 May 2013, Dr Entwisle took a history that the plaintiff –
“… normally works between 8.00am and 3.30pm two days a week. Other than this, he arises in the morning, gets dressed and does some housework. He enjoys walking his dog at night. He cooks for his wife and will do the shopping. Evenings are spent in front of television. Weekends are much the same.
When not at work, [the plaintiff] will spend time on learning the electric guitar. He spends a little time on the internet.”[11]
[11]DCB 47
37 Further, the plaintiff stated he no longer attends for medical treatment. He said that he had previously engaged in an engineering course but does not want to work in a factory. He can see and work with special glasses. His most pressing problem is said to be one of glare and he has to close the eye. He is not having any other treatment for his eye and is otherwise well.
38 On this occasion, it was considered that the plaintiff’s psychiatric symptoms “have essentially settled”. He remains uneasy around knives and would prefer to undertake some further psychological treatment to overcome this. Otherwise:
“… there were little in the way of traumatising features at this second interview.”[12]
[12]DCB 48
39 It was said that the plaintiff was now working and was happily married. The diagnosis at that stage was an Adjustment Disorder with Anxiety in remission. Although continuing to be hesitant around knives, it was noted that the plaintiff now worked in a kitchen and was able to handle knives.
40 The plaintiff was next examined by ophthalmologist, Dr Mark G Lazarus, on 13 April 2012. Of relevance was a finding of:
“A full thickness corneal scar is present at the limbus at 12 o’clock in keeping with the history of injury.
A left superior iridectomy is present at 12 o’clock at the limbus that accounts for the problem with glare.[13]
[13]DCB 51
41 Relevantly, normal binocular vision was present and there was no double vision.
42 Dr Lazarus considered that the prognosis for the left eye was normal and no further medical or surgical treatment was indicated. He also considered that his visual impairment did not interfere with his work capacity.
43 The plaintiff was next examined by ophthalmic surgeon, Dr John McKenzie, on behalf of the plaintiff on 13 June 2013 and 10 February 2014 (exhibit C). On the first occasion, the plaintiff expressed his “issues” as being distortion of the left pupil and a degree of reduced vision in the left eye compared with the right eye and its pre-existing condition, and he was bothered by glare. He also had a reluctance to subject himself to possible further trauma.
44 It was recorded that the plaintiff had changed his glasses since the injury and it seemed that the plaintiff had an astigmatism induced by the injury and its subsequent repair. Dr McKenzie’s diagnosis was one of loss of left central vision – 6 per cent; glare representing 10 per cent impairment of the left eye, and deformity of the pupil and superior corneal scar.[14]
[14]PCB 47
45 Dr McKenzie considered the plaintiff had had –
“… a significant psychological reaction to his injury and was now afraid to put himself in a position where he may further injure his eyes. …”[15]
[15]PCB 47
46 Accordingly he had sought employment in an alternative environment where he feels that injury is less likely.
47 This anxiety and post-traumatic stress was said to not be in his area of expertise. In any event, Dr McKenzie considered the plaintiff should be able to work in a full-time capacity. He was myopic and would be required to wear his glasses as he previously did:
“… He does have a problem with glare but this would be of nuisance value in his current employment.”[16]
[16]DCB 48
48 Although the plaintiff had a significant psychological reaction to his injury, he did not have any specific physical limitation but he did have a level of reduced vision in his left eye, along with the issue of glare which he would find difficult in a bright light/sunny situation.
49 When re-examined on 10 February 2014, Dr McKenzie noted that the plaintiff’s main complaint was an irritable eye for which he was using Systane lubricant drops. The eye was said to be uncomfortable and itchy and watered, with the drops helping to alleviate the symptoms. Further, he continued to have a degree of glare/photophobia but used a photochromic lens to limit his glare symptoms. The lens contained a focal posterior sub-capsular lens opacity which had resulted from the trauma. This was not reducing his vision at present but was likely to add to the problem with glare.
50 Dr McKenzie considered the lens opacity “will likely progress over time to the point where cataract surgery will likely be required”. The timing of this, however, was uncertain, other than he thought a cataract would develop at a time well in advance of a natural formation. There was a possibility of more difficult surgery but an exact risk could not be quantified. Following surgery, he would still continue to have glare due to the iris trauma and the corneal scar would remain irritable. It was noted that the lens opacity had not progressed to one of a cataract as between the two consultations.
Post-injury employment
51 The plaintiff returned to work with the employer on 18 March 2011 on alternative light duties. He found he was unable to cope because he became anxious when he was around machinery and knives. On or about 18 May 2011, he ceased work due to his “stress and anxiety”.[17]
[17]Exhibit A, plaintiff’s affidavit dated 4 November 2011, paragraph 40
52 In June 2011, the plaintiff commenced a course in aged care, which was completed in August 2011.
53 Thereafter, in or about November 2011, he obtained a job in aged care and was employed 35 hours per fortnight.
54 At some point in 2013, the plaintiff enrolled in a Chinese medicine course at RMIT Bundoora. His intention is to continue to work in aged care on a part-time basis whilst undertaking studies and plans to seek a transfer with his current employer some time in 2014.
Pain and suffering
55 In his first affidavit, sworn 4 November 2011, the plaintiff deposed as follows:
“… I experience intermittent pain in and around my left eye … especially in the morning and at night. I also experience itchiness in my left eye even when I am not using my left eye, for example, when I close my eyes at night to try and fall asleep.
… Prior to my injury I was able to remove my glasses when driving or playing basketball … but I now need to wear my glasses all the time. I also experience a strain in my left eye when reading for prolonged periods.
… In the sun I am unable to open my left eye and as a result I avoid going outside when it is sunny.
… Whilst I continue to play basketball, I find that I am no longer as competitive because I worry that I will get knocked in my left eye due to the physical nature of the sport. I have difficulty [playing] table tennis as I experience a strain in my left eye when trying to follow the ball through the air.”[18]
[18]PCB 20
56 In his second affidavit sworn 16 May 2013, the plaintiff deposed as follows. He stated he only wore glasses before his injury when reading, studying and driving. Since the injury, he experienced difficulty seeing things as clearly as he did prior to the accident and he was now forced to wear glasses all the time. Further, he now found it difficult to focus for longer than 10 to 15 minutes when reading and after a period, his left eye feels tired and strained and he is forced to close his eyes for a time to rest. He now finds it difficult to focus for longer than 30 minutes while playing computer games compared to doing so for hours at a time before the injury. The plaintiff has played basketball since the injury but found that his glasses kept being knocked off and on one occasion, they broke. He now claims to have stopped playing and this has upset him greatly. However, in cross-examination, he conceded that he could purchase a pair of goggle-like glasses as worn by players in the NBA.
57 Further, the plaintiff stated that he found it increasingly difficult to play table tennis, although he has played for two seasons since the injury. He found the restrictions in playing frustrating and upsetting. Also, the plaintiff is embarrassed, as the glasses he now wears appear to be sunglasses because they are tinted. Otherwise, he has no current treatment, as he feels there is nothing more that can be done for him.
58 In his third affidavit, sworn 18 December 2013, the plaintiff deposed as follows:
“I have again attempted to play basketball in an effort to keep socialising with my friends but again found this to be difficult … .”[19]
and continues to be concerned about further injury. Although swearing that he had been unable to play table tennis since the last affidavit, he corrected this in evidence-in-chief. He stated he continued to be embarrassed at having to wear glasses at all times.
[19]PCB 25a
Analysis
59 It is possible to obtain leave to commence a proceeding for pain and suffering damages by establishing that the loss of earning capacity consequences for a particular applicant satisfy the “very considerable” test in s134AB(38)(c) and the 40 per cent requirement of s134AB(38)(e).[20] No attempt was made to do so in this proceeding. Thus, the case must be established on the basis that the pain and suffering consequences of the injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being “more than significant or marked – and as being at least very considerable. This involves a value judgment, in which matters of fact and degree and of impression are operative.[21]
[20]See generally Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 paragraphs [60] to [64]
[21]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [41]
60 The task of a County Court judge is to see where the facts of the particular case sit in the broad spectrum of cases, including cases which do not end up in litigation.
61 The circumstances of this case, in my view, are on the borderline. The plaintiff is a young man with permanent eye pathology which has been caused by the compensable injury. He faces, in the foreseeable future, irritation of the eye which, from time to time, will require drops and is subject to glare. There is, in addition, a restriction upon his enjoyment of life to do with playing basketball and table tennis, but he is not precluded absolutely from these activities. When judging the pain and suffering consequences for the plaintiff by comparison with other cases, it is relevant to look at his relative young age and the number of years that he may have to put with these consequences. In addition, there is the possibility of cataract surgery which carries with it an additional but unquantified risk of failure.
62 I consider that the evidence adduced does disclose pain and suffering consequences which can be described as significant and marked, but I am not persuaded that these consequences can be fairly described as being more than significant or marked or as being at least very considerable. Defence counsel submits that in reaching a conclusion whether a worker has established that he has suffered a serious injury, “the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained”.[22] I accept this submission.
[22]See Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]
63 I consider that the plaintiff has suffered and will likely continue to suffer from inhibitions in his ability to engage in unrestricted physical activity by way of basketball and table tennis but such ability is not affected to any great degree, or at least to the degree necessary to fit the description laid down by statute. In particular, it does not appear to me that the plaintiff’s enjoyment of life, comprising his social life, his ability to travel and his ability to engage in electric guitar playing and social sports has been affected in a way which could be described as more than significant or marked– and certainly not “at least very considerable”.
64 I take into account defence counsel’s submission concerning the dicta of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd,[23] although I note subsequent Court of Appeal decisions alluding to the fact that such a return to employment is merely one of the factors to be weighed in balance.
[23][2006] VSCA 292 at paragraph [24]
65 Finally, as far as pain is concerned, I do not discern that the plaintiff is suffering a continuous substantial level of pain and the irritation of his eye seems to be controlled at least by non-prescription eye drops.
Conclusion
66 For the reasons given, the application should be dismissed.
67 I will hear the parties as to consequential orders.
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