Millane v Warragul Glass and Glazing Pty Ltd and VWA
[2010] VCC 1472
•1 October 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-06135
| DAMIAN LAWRENCE MILLANE | Plaintiff |
| v | |
| WARRAGUL GLASS & GLAZING PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 and 15 September 2010 |
| DATE OF JUDGMENT: | 1 October 2010 |
| CASE MAY BE CITED AS: | Millane v Warragul Glass & Glazing Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1472 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(16)(b) – serious injury application – whether consequences of injury meet statutory threshold – application in respect of pain and suffering only.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie SC and | Maurice Blackburn |
| Mr J Ferwerda | Gippsland Pty Ltd | |
| For the Defendants | Mr A J Moulds | Minter Ellison |
| HIS HONOUR: |
1 In this proceeding, the plaintiff seeks leave to commence an action claiming damages with respect to pain and suffering for injuries suffered by him in the course of his employment with the first-named defendant, by reason of an incident which occurred on 25 June 2004 when the plaintiff suffered a lacerating injury to his face. The body function relied upon by the plaintiff is the function of the face.
2 In the course of the application, the plaintiff gave evidence and was cross- examined. Otherwise the parties relied upon material contained in their respective Court Books.
3 In the application, the plaintiff has sworn two affidavits: the first dated 17 July 2008; and the second dated 3 September 2010.
4 In his first affidavit, the plaintiff deposed to the following facts:
•
He was born on 25 June 1950 and was at all material times employed by the first defendant as a glazier.
•
On 25 June 2004, whilst handling a large sheet of float glass, the glass sheet broke, with the result that a shard of glass entered his right cheek, causing a laceration through the cheek which extended from just below his eye to under his jaw. The plaintiff described the incident as involving excruciating facial pain which he experienced for several days.
•
His injury had left him with symptoms of numbness which affected his left cheek, as well as the left side of his mouth. He said that he experienced eating difficulties and speech problems. He described the sensation which was present in the left side of his mouth as similar to that felt after receiving a numbing injection from the dentist. He said that this sensation was present all the time. He described the numbness as causing him difficulty in shaving, insofar as it also involved the surface of the skin on the left side of his face.
•
He had a tendency to bite his tongue or his mouth when eating. He said that he obtained much less enjoyment from eating than he did before the incident. He said that he was no longer able to whistle and that his speech had been adversely affected. He described the fact that his mother was an elocution teacher, and said:
“I was brought up to be particular about speaking properly. Although my speech might sound reasonably okay to other persons, I have difficulty expressing some sounds since the incident. For example, I find it difficult to get my mouth and tongue around words starting with ‘pr’. I often feel that I am not speaking correctly.”
• He had a tendency to dribble from the left corner of his mouth. • He was embarrassed by his altered facial appearance and – “… by what I regard as obvious or apparent signs that relate to the injury suffered in the incident. For example, the dribbling or difficulties with certain words. Although I continue regularly to associate with people, I feel I have socially withdrawn because of the incident or of the injury suffered in it.”
5 In his second affidavit, the plaintiff confirmed the fact that there had been no change in his condition from that described in his previous affidavit. He said that his facial injuries affected his ability both to smile and to eat. He described the change present in the sensation of his face and its sensitivity to touch on the left side as affecting him in many ways, including shaving and kissing.
6 In the course of cross-examination, the plaintiff said:
•
that after his accident he returned to work as a glazier and had continued in that occupation, initially being employed as a tradesman by Warragul Fast Glass, and subsequently commencing his own business known as ‘Warragul and District Window Repairs’.
•
that he suffered from numbness which extended over a significant area of the left side of his cheek. In addition, he described the presence of hypersensitivity in an area of his cheek, and commented that these symptoms caused him difficulty when shaving and to occasionally bite the inside of his mouth severely. He described suffering from a problem with dribbling which occurred, not when he was drinking, but as the result of the spontaneous loss of saliva which would occur without warning.
•
that the accident had not interfered with his ability to undertake domestic activities, to play the guitar or to engage in the occasional ‘sing along’ when family members gathered at a function such as his sister’s birthday. He disagreed with the assertion put to him that his powers of speech were such that he had little trouble in articulating. He said that he had not been referred by his general practitioner to a speech pathologist but that he would have seized the opportunity for this form of treatment had it been offered to him.
7 In re-examination:
• When asked as to his difficulty with speech, the plaintiff responded: “It’s my perception as to how I speak that’s important to me, and I actually spoke to my sister from London about this very matter, I think two days after the incident, and she said she couldn’t pick any problems with my voice. To me it’s totally different to … I don’t seem to be able to get my mouth around the words that – that I want to say. I know they come out and sound coherent but … .”[1]
[1] Transcript 48
• When asked whether he had difficulty now with any words in particular, he replied: “I was stumbling all the time on words that have got – I guess a form like in the examples you have of ‘pr’ words, just trying to get the pr word out.”
In this regard, the plaintiff described the fact that pronouncing words commencing with the letters ‘pr’ required him to apply a thought process to that activity.
•
The plaintiff said that he had a tendency to dribble spontaneously which was associated with the presence of a “lazy part of my lips”. He said that he was unable to form a tight seal with his lips, with the result that he was prone to dribbling and was unable to whistle. He described the problem with dribbling as occurring a few times a day and as causing him to feel embarrassed.
•
The plaintiff said that he was prone to biting the inside of his mouth severely, such that, “the severity is I’m spitting out quite – quite a bit of blood after it happens”. He described this sort of event as occurring twice a month or thereabouts, and as being associated with eating. He also described an area in which hypersensitivity was present which extended along his scar line from near his left eye and extended to his jaw. He described this area as causing him to experience a feeling like an electric shock when it was touched, but said that this sensation did not occur often in the course of daily life.
The Medical Evidence
8 There is little dispute in the medical evidence which is relied upon by the parties.
•
Dr Chris Kozlovskis described the plaintiff as complaining to him of noticing a difficulty with the use of his mouth which involved a change in his overall speech, dribbling, an inability to whistle, difficulty chewing, and biting the inside of his mouth. He also described the presence of an altered sensation in the left side of his mouth and the left side of the cheek area, including increased sensitivity which he noticed if something brushed against his left cheek. As at 11 June 2009, Dr Kozlovskis expressed the opinion that the plaintiff’s condition had stabilised and that no further healing was anticipated.
•
Dr Richard Bittar, a neurosurgeon, examined the plaintiff on 7 May 2009. He expressed the opinion that the plaintiff had suffered an injury which had resulted in facial pain, weakness and impaired function and that it was likely that the plaintiff would –
“… suffer from significant facial pain, disfiguration and impaired
speech and masticatory (chewing) function indefinitely.”[2][2] I note that in the course of his examination, Dr Bittar obtained from the plaintiff a history that he was embarrassed about his appearance and his asymmetrical smile. I interpret Dr Bittar’s comment that the plaintiff was suffering from facial disfiguration as also referring to this aspect of the history which he obtained from the plaintiff.
9 In a report dated 23 March 2009, Mr Felix Behan, plastic surgeon, obtained from the plaintiff a history that he was unable to smile easily, that he had lost symmetry in his face, that his injury caused him inadvertently to catch the irregular inner mucosal surface of his mouth upon biting, causing ulceration, and that he tended to dribble from the left side of his mouth. Mr Behan took no issue with the plaintiff’s history, and expressed the opinion that there had been “only partial return of motor and physiological activity in the distribution of the left facial nerve” which was associated with a through-and-through lacerating injury to the left side of the plaintiff’s face.
10 Mr Murray Stapleton, a plastic surgeon, assessed the plaintiff on behalf of the defendants on 28 October 2009. Mr Stapleton expressed the opinion that the plaintiff’s injuries –
“… affect the worker’s everyday life. Drinking, smiling, socialising and intercourse are all very much a problem, as is the hypersensitivity of the scar on the left side which causes him a problem when he shaves.
He does have numbness around the mouth and difficulties, he describes, with eating and drinking. He has difficulties with speech, pronunciation and dribbles out of the corner of the left side of his mouth. All these are reasonable and natural complaints following such an injury as this.”
11 In a report dated 7 May 2007, Dr Lesley Sedal, a consultant neurologist, described the plaintiff as presenting with mild asymmetry of the mouth, and on sensory examination, as presenting as numbness of his left upper and lower lips and the adjacent cheek and jaw in the distribution of the second and third divisions of the left trigeminal nerve. He opined that the plaintiff had, following his accident, been left with damage to the left facial nerve branches going to the mouth and that it was probable that two cranial nerves had been involved in the plaintiff’s injury. He opined that the plaintiff’s speech problem was entirely due to the damage to these two nerves and the associated lack of strength and loss of feeling on the left side of his mouth. Dr Sedal opined however, that the plaintiff’s speech problem was “very mild”.
Finding as to the Consequences of the Plaintiff’s Injury
12 I found the plaintiff to present as a truthful and accurate historian. I am satisfied that he made no attempt to magnify the effects of his injury upon him. In this regard, I note that no medical practitioner who has examined him has questioned the plaintiff’s account of his symptoms or his description of the severity of those symptoms
13 In deciding the issue which arises in this case, namely, whether the plaintiff’s pain and suffering consequences, when judged by a comparison with other cases in the range of possible impairments or losses of body function, may be fairly described as being more than significant or marked and as being at least very considerable, I am required to assess the consequences in terms of pain and suffering which the plaintiff’s injury has occasioned to him, and determine where the facts of this case sit in the broad spectrum of cases. The task which I am required to undertake has been described as involving “a value judgment in which matters of fact and degree, and of impression, are operative”,[3] and one in which I am required to take into account –
“… not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of the consequences, may be informed, to some extent, by what is retained.”[4]
[3] Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
[4] Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260
14 In an application of this nature, I am required to exercise a value judgment as to whether the consequences to the plaintiff of the injury suffered by him are appropriately described as being “more than significant or marked and as being at least very considerable” when considered within the broad range of accident-related impairment and disability.
15 In undertaking the exercise required of me by the Act, I take into account the fact that the plaintiff is not prevented by his injury from working on a full time basis in his trade as a glazier, or indeed from engaging in most of the activities of daily life. Against this I balance the fact that I have no doubt, given the sensitivity of the mouth, that an alteration in the sensation within the mouth of the type described by the plaintiff, would give rise to a most unpleasant sensation of which the plaintiff would be aware during every waking moment.
16 When account is taken of the fact that:
(i)
the plaintiff’s facial appearance has been altered by reason of the injury – he suffers from what is described by Mr Bittar as “mild asymmetry of the mouth” and his facial expression in terms of his smile has been affected. In addition, the plaintiff experiences the spontaneous loss of saliva which occurs without warning on a daily basis. His evidence that he is embarrassed by this and that he has become socially withdrawn was not disputed and, in my opinion, is properly considered as being an integral aspect of his physical injury;
(ii)
the plaintiff suffers from a significant area of permanent numbness on the left side of his face and within his mouth;
(iii)
the plaintiff is repeatedly exposed to incidences of biting the internal mucosa of the mouth such as to initiate bleeding;
(iv)
the plaintiff suffers from hypersensitivity in an area of his face which extends along his scar line from near his left eye and to his jaw which when touched causes him to experience a feeling like an electric shock;
(v)
the plaintiff suffers from a mild impairment of speech in which he experiences particular difficulty in pronouncing words beginning with ‘pr’;
(vi)
the plaintiff obtains much less enjoyment from eating than he did before the incident;
notwithstanding that the consequences of the plaintiff’s injury fall, in my view, at the very borderline of those which might be appropriately described as being “more than significant or marked and as being at least very considerable”, I am satisfied that they appropriately meet that description and accordingly, that the plaintiff is entitled to the leave which he seeks in this application.
17 I will hear the parties as to the precise form of the order which is sought and also as to the issue of costs.
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