McLean, Stewart v Grandband Pty Ltd
[2009] VCC 868
•21 July 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY
Case No. CI-08-00100
| STEWART McLEAN | Plaintiff |
| v | |
| GRANDBAND PTY LTD and ORS | Defendants |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 July 2009 |
| DATE OF JUDGMENT: | 21July 2009 |
| CASE MAY BE CITED AS: | McLean, Stewart v Grandband Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0868 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 - serious injury - permanent serious disfigurement - facial scar.
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W C Grainger | Petersons Lawyers |
| For the Defendants | Mr A J McG Moulds | Wisewould Mahony |
| HIS HONOUR: |
1 The plaintiff brings an application pursuant to the provisions of s.134AB(37) of the Accident Compensation Act 1985 (“the Act”) for leave to commence a proceeding seeking damages for pain and suffering arising out of an incident which occurred in the course of his employment with the defendant on 25 June 2005 . The injury suffered by the plaintiff on that occasion involved a significant laceration to his right cheek. In this application the plaintiff contends that the resultant facial disfigurement constitutes a permanent serious disfigurement within the provisions of the Act as amended.
The Evidence
2 The plaintiff relies upon an affidavit sworn by him on 16 August 2007. In the affidavit the plaintiff deposes to the following effects associated with his facial scar:
• The scar measures 3 centimetres in length and .2 centimetres in width. • The plaintiff suffers from a distortion in his right cheek when he talks, chews food, yawns, smiles, or opens his mouth. • The plaintiff has sensitivity over the corner of his mouth associated with the scar. • The scar causes the plaintiff to drool when he eats, and for pools of saliva to accumulate on his pillow. • The plaintiff is very self-conscious of his scar, and deposes to being aware of people staring at his scar in public, and to being questioned about it. 3 In the course of his evidence the plaintiff said that he is always self-conscious of people staring at him. He suffers from occasional dribbling which occurs most frequently at night and which is associated with activities such as drinking coffee or cups of tea. His feelings as to the presence of the scar are well illustrated by the following passages of evidence:
“I get tingles, sometimes numbness, I drool but not all the time not frequently but I do get drools. I have concerns all the time of people staring at me, that’s – that’s what – you know self-consciousness with people looking at me. Reminders of what happened on the actual day. Every morning I wake up when I see the scar I – it tells me what happened on the actual day.”[1]
[1] T3
4 The plaintiff continued:
“When I do see people looking at me, whether or not they are looking at me, I’m not sure but to me it feels that way and my right hand will go up.[2] I feel – when we’ve been to – my partner and I have been to restaurants I feel people if they’re looking towards my way gives them the wrong impression about me. I then ask to be turned around, swap seats and turn around and sit where I don’t have so many people front on to me.”[3]
and further gave evidence when questioned as to how he coped in social
situations with close friends or new acquaintances:“My very close friends who know what’s happened to me and know me fairly well, I’m not too bad with. I have not met new friends, it’s very hard for me to go out, I do not frequent – for example – on the weekend there was a friend’s – new friend’s birthday party which was being held at a nightclub, I will not frequent these clubs, I will not frequent any of these establishments where consumption of major alcohol will be induced.”
[2] The plaintiff demonstrated the point he was making by placing his hand on his face so as to hide the scar
[3] T3
5 The plaintiff gave evidence that he was emotionally affected by the incident, such that he now avoids crowded places and attending venues where he might be exposed to rowdy behaviour or people consuming alcohol.[4] He said that the appearance of his scar was subject to change:
“It can be – sometimes it can be very loud where I get people that will –
even where I work now they’ve asked me what happened.”[5][4] T8
[5] T9
6 When explaining what he meant by “loud” the plaintiff gave evidence that there were occasions upon which the scar could stand out more than at other times. He described the appearance of the scar at the time at which he was giving evidence as being normal.
7 A number of medical reports were tendered on behalf of the plaintiff, which included three reports from Mr Brett Archer, the plaintiff’s treating plastic surgeon, who undertook a revision of the scar on27/10/06.
8 The plaintiff’s scar was examined and reported upon by Mr John Anstey, a consulting plastic surgeon, on 10 October 2008. Mr Anstey described the scar as extending from the angle of the mouth on the right side outwards onto the cheek, and as comprising of a scar 90-millimetres long, up to 6-millimetres wide over a short section, which had a contour defect of approximately 3 millimetres over a 10-millimetre section adjacent to the angle of the mouth.
9 Mr Anstey expressed the opinion that the plaintiff suffered from some facial asymmetry associated with the scar. He opined that there was unlikely to be any significant improvement in the scar, and that the scar was obvious to a casual observer at conversational distance.
10 In addition to the reports of Mr Archer and Mr Anstey, the plaintiff relies upon the following material:
(i) A report from Dr S Gopathy, a general practitioner, who described the plaintiff as suffering from post-traumatic stress. More relevantly, Dr Gopathy reported: “Mr McLean sustained an injury to his right cheek which has left him with a horizontal scar on the cheek. The scar is unsightly and extends for about 3 centimetres into his right cheek from the corner of his mouth on the right.
Mr McLean has not complained directly about the effects of the scar to me. But when questioned he mentioned that he has a feeling of numbness on the cheek around the scar. His right cheek muscles feel tight when he smiles and he experiences some dribbling of saliva on the right side of his mouth and he finds this especially distressing at night.”
(ii) A report dated 11 August 2005 from Mr Robert Wilks, a clinical psychologist, who opined that the plaintiff had developed an anxiety disorder in reaction to his injury which involved a number of features typical of post-traumatic stress disorder but which were more consistent with the plaintiff developing an adjustment disorder with anxiety.
11 It was submitted on behalf of the defendant that in deciding this matter, whilst I should have regard to the consequences of the scar upon the plaintiff, including its effect upon his lifestyle, I should ignore the evidence that the plaintiff has suffered an emotional injury in the form of an adjustment disorder associated with anxiety as set out in the opinion of Mr Wilks. Effectively, it was the defendant’s submission that:
(i)
I should take into account both the plaintiff’s feelings as to his scar and the way in which the presence of the scar made the plaintiff feel however;
(ii)
I should quarantine, as being irrelevant, any depressive reaction which the plaintiff might have suffered by reason of either the presence of the scar or his involvement in the incident which caused his injury, as such a depressive reaction is more properly considered under sub-paragraph (c) of the definition of “serious injury” within s.134AB(37) rather than sub- paragraph (b) of that definition.
In support of this position I was referred to the decision of the Court of
Appeal in Ingram v Ingram and Transport Accident Commission.[6][6] [1996] 2 VR 435
12 I accept this submission and adopt that approach in considering this application.
13 Essentially it was submitted on behalf of the defendant that whilst the scar was indeed significant, it was not more than significant or marked and that it could not be considered to be at least very considerable, and that in those circumstances the threshold test required by the Act was not satisfied.
14 The determination of the issue as to whether a scar involves a permanent serious disfigurement is a process which is by its nature one which little guidance can be gained from other cases.
15 The plaintiff tendered a number of photographs of the scar.[7] Having had the opportunity of seeing the scar in the course of the plaintiff’s evidence, I do not consider that the photographs adequately depict the extent of the scar or the disfigurement constituted by it.
[7] PCB 17
16 The location of the scar could hardly be more prominent and cannot be masked by clothing. It extends from the very corner of the right side of the plaintiff’s mouth onto and across a significant portion of the plaintiff’s cheek and affects the contour of the plaintiff’s face. In my opinion the scar is such that it presents an extremely unsightly disfigurement which I have no doubt would attract second glances from strangers and perhaps comment from members of the public who are so insensitive as to know no better. The scar was plainly obvious to me, not only whilst the plaintiff was seated in the witness box, but also whilst the plaintiff was seated in court at a distance of approximately four metres from my position.
17 I accept the opinion of Mr Anstey that the plaintiffs disfigurement is unlikely to be significantly improved and therefore that it is permanent.
18 I ignore for the purposes of this assessment the effect of the obvious emotional injury suffered by the plaintiff which has resulted in the plaintiff avoiding social activity which might involve boisterous behaviour or the consumption of alcohol. I am satisfied however that the plaintiff’s scar is a constant source of embarrassment and concern to him, and that his self consciousness caused by the presence of the scar alone, is a major factor in influencing the plaintiff’s behaviour of avoiding unfamiliar social situations and the crowds he may encounter in circumstances common as travelling on a train.
19 Taking into account the matters to which I have referred , I am satisfied that the plaintiff has established that by reason of his injury he has suffered a permanent serious disfigurement, in that it is appropriate to describe the scarring and disfigurement associated with his injury as being more than significant or marked and as being at least very considerable.
20 In the circumstances I propose to grant the plaintiff leave to commence a proceeding at common law seeking pain and suffering damages arising from the incident in which the plaintiff was involved in the course of his employment with the defendant on 25 June 2005.
21 I will hear the parties as to the form of the orders which are sought and also as to the issue of costs.
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