Nezirevic v Lubura and Malenic

[2011] VCC 1503

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

GENERAL DIVISION

Case No. CI-10-02907

FAJKO NEZIREVIC	Plaintiff
v
SINISA LUBURA	First Defendant
and
NEBOJSA MALENIC	Second Defendant

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JUDGE:	HER HONOUR JUDGE KINGS
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2011
DATE OF JUDGMENT:	30 September 2011
CASE MAY BE CITED AS:	Nezirevic v Lubura & Malenic
MEDIUM NEUTRAL CITATION:	[2011] VCC 1503

REASONS FOR JUDGMENT

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Catchwords:  Undefended – assessment of damages – pain and suffering

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Stanley	Patrick Robinson & Co
For the Defendants	No appearance	No appearance
HER HONOUR:

Preliminary

1          This is an assessment of damages for injury, loss and damage suffered by the plaintiff on or about 2 July 2007 when the first and second defendants bashed and assaulted the plaintiff in and outside the Red Star Bar and Restaurant at the corner of Foster and Pultney Street, Dandenong.

2          On 7 July 2010, interlocutory judgment for damages was entered in default of appearance/defence in respect to both defendants. The judgment of the Court was that the defendants pay the plaintiff damages to be assessed.

3          The Particulars of Injury identified in the Statement of Claim are: total loss of sight of the right eye; concussion; rupture of the right ear; scarring and facial disfigurement; aggravation and acceleration of previous injuries to the neck, right shoulder and back; aggravation and acceleration of prior psychiatric condition; Post Traumatic Stress Disorder; depression; anxiety; insomnia; and pain and suffering.

4          The plaintiff sought special damages for medical and like expenses.

5          At the assessment trial, the plaintiff gave evidence and relied upon an affidavit sworn 8 August 2011 and medical reports from his general practitioner, Dr M M Habib; Mr Mangos, general surgeon; Dr Mark Lazarus, eye specialist; Dr R Udovicic, psychiatrist; Mr Robin Hooper, ear, nose and throat surgeon; and The Alfred Hospital file.

6          There was no attendance by the defendants.

Evidence of the Plaintiff

7          The plaintiff gave the following evidence:

• He is aged forty-four, born in Bosnia and went to school for eleven years.

• He came to Australia in 1993, with his wife and two children. A further child was born in Australia.

• In 1998, he commenced employment with B and P Calla. On 15 January 1999, whilst at work, he was hit on his head, shoulder and back by a wooden beam. He consulted Dr Ahad, his then general practitioner. He suffered from depression and anxiety as well as Post-Traumatic Stress Disorder. He was referred to a psychiatrist, Dr Udovicic, in 2000.

• As a result of the work injury, he received, and is currently in receipt of, payments for loss of earnings and medical expenses under the Accident Compensation Act 1985. At the time of the assault, he was receiving treatment from his psychiatrist and general practitioner.

• He is currently seeing Dr Habib, who has been his general practitioner for approximately twelve years.

• On 7 July 2007, he was inside the premises of the Red Star Bar and Restaurant with friends when he was assaulted by the first and second defendants, who were in a group. He left the bar and was assaulted by them outside in the car park. He was hit on the head and body. He was hit with fists, a bottle and broken glass.

• He suffered injury to the right side of his face and head. He became unconscious and was taken to The Alfred Hospital, where he remained for a week. He was unconscious and in a coma for a day. He had a rupture of the right eye, an avulsion to the right ear and face disfigurement.

• He was taken to Caulfield Rehabilitation Centre, where he was an in- patient until 9 August 2007. He received psychological counselling because of the severity of the assault. He said it was a dreadful time. He was not able to stand because of the pain in his back, shoulders and chest. It was difficult to accept the loss of sight in his right eye.

• He now has total loss of sight in the right eye and has a prosthetic eye. He has constant pain in the right eye, as though a knife is stuck in the eye. He dreams that he can see. He has difficulty with balance. Because of the glare in the left eye, he is required to wear dark glasses at all times. He said people often comment on the fact that he has dark glasses on when inside, and make fun of him.

• Prior to the assault, his vision was good. Approximately four to five months ago, he had difficulties seeing the numbers on his mobile phone. He purchased glasses to assist him and is awaiting an appointment with The Alfred Hospital to test the sight in his left eye. He is concerned that his sight in his left eye might deteriorate; this is his biggest fear.

• He has difficulties hearing in his right ear and it sounds as though there is sand moving.

• He suffers from headaches. Prior to the assault, he suffered headaches, but since the assault, they are “300 times worse”.

• Even though he had pain in his neck and back prior to the assault, his neck and back pain have become worse since the assault.

• His psychological problems have been aggravated and were made worse as a result of the assault. He has nightmares about the assault; he sweats badly, which wakes him. He had nightmares before the assault, but they were not about people chasing him. He suffers from anxiety and depression. He has become aggressive with members of his family and no longer lives with his family. He now lives on his own. He sees his children monthly, but no longer attends their sporting matches. He rarely sees his brother and sister now. His social life has been greatly affected by the assault and he no longer sees friends.

• He does not go out as much as he did before, because he fears that he is going to be assaulted. He thinks people are trying to kill him. He tries to avoid areas where the defendants might be. His family live in fear.

• He is no longer able to read.

• He sees his general practitioner for medication and takes, on a daily basis, Panadeine Forte, Serapax, Avanza, and Rivotril. He conceded that he took medication before the assault, but that after the assault, the levels of medication increased. Before the assault, he did not take Serapax. He consults his psychiatrist regularly. He suffers from continuous headaches with pain and itchiness in his right eye. He has put on weight. He feels worthless, hopeless and is in fear all the time.

Credit of the Plaintiff

8          The plaintiff gave his evidence with the assistance of a Bosnian interpreter.

9          The plaintiff answered all questions put to him in a forthright manner. He made concessions and told the Court about the injuries he had suffered in the work accident and how those injuries affected his life. He was able to tell the Court of the injuries he suffered as a result of the assault and how those injuries affected his life. The evidence he gave to the Court as to how the assault injuries have affected his life are consistent with what he has told the doctors whom he has seen. Whilst I accept the plaintiff exaggerated the effects of the pain he suffered from headaches since the assault, I formed the view that the plaintiff was a witness of truth.

The Plaintiff’s Medical Evidence

Work Place Injury

10        On 29 May 1999, Dr M A Ahad, general practitioner, said the plaintiff consulted him on 30 January 1999 as a result of injuries he suffered at work on 15 January 1999. At the time of the accident, the plaintiff was examined by a doctor in Port Melbourne, who prescribed analgesics and anti-inflammatory medication. Dr Ahad was told by the plaintiff that the doctor at Port Melbourne said the x-rays were normal, and diagnosed a soft-tissue and musculoligamentous injury. The plaintiff complained of being dizzy, sustaining bruising on the anterior aspect of the right shoulder, and also right side of the back. Dr Ahad said the plaintiff’s injuries were consistent with the stated cause. He said his long-term prognosis was guarded, that the plaintiff was unfit to work but that he anticipated the plaintiff would be fit for modified duties in the near future.

11        On 4 July 2001, Dr M Habib, general practitioner, said he first saw the plaintiff in April 1999 when the plaintiff was complaining of dizziness and headaches, nervousness and agitation, pain in the back, neck and right shoulder and difficulty in sleeping. He said x-rays showed early spondylosis at C5, causing anterior lipping, limited range of movement at C5. He described the plaintiff as “grossly depressed” and he referred him to an orthopaedic surgeon, neurologist and consultant psychiatrist. In 2001, he said the plaintiff was still very depressed with a painful neck and shoulder and consulting him for medication and attending specialists for treatment.

12        In 2004, Dr Habib said the plaintiff was grossly depressed, suffered headaches, poor self-esteem and was a risk to himself with “so much tension, agony, frustration and agitation”. Dr Habib said he was an “extremely high risk worker” for anyone to employ.

13        Dr Rosa Udovicic, consultant psychiatrist, first saw the plaintiff in April 2000 at the request of his general practitioner. Dr Udovicic provided three reports relating to the workplace accident dated July 2001, June 2003, and December 2004. In 2001, Dr Udovicic said the plaintiff suffered severe Major Depression and mental sequelae as a result of his work injury. The depression contributed to the severity of the effect of his pain symptoms, panic attacks and alcohol abuse.

14        In 2004, she said the plaintiff expressed interest in psychological counselling.

Assault

15        In October 2010, Dr Habib said, that the plaintiff suffered a second injury in July 2007, when he was “brutally beaten” after attending a bar. He said as a result of the assault, the plaintiff became unconscious, remained in a coma, suffered a rupture of the right eye, avulsing of his right ear, total blindness in the right eye and disfigurement to his face. In 2011, Dr Habib said the plaintiff suffered severe Depression. The plaintiff had been going to the pool for hydrotherapy at his own expense for his severe back pain. He said the plaintiff was devastated at the lack of willingness of witnesses to the attack to come forward and said people were scared of retribution by the assailants.

16        Dr Vincent Yiu from The Alfred Hospital examined and treated the plaintiff at The Alfred Hospital at the time of his admission. In a Statement of Examination for Police, he said that a review of case records documented the following injuries:

• facial lacerations;

• right scleral laceration;

• ear laceration – right superficial temporal artery laceration;

• query CHI normal – CTB+ intoxication;

• right corneal laceration.

17        Dr Yiu said surgery performed was repair to facial and ear lacerations and repair of right lobe. He said the findings were consistent with an alleged assault by a group of men.

18        Caulfield General Medical Centre recorded that the plaintiff was physically assaulted which had led to a number of adverse physical and psychological consequences. His right eye was ruptured with an extensive lid laceration. He sustained facial and scalp injuries. Two separate surgeries by the ophthalmologists and trauma surgeons at The Alfred Hospital were required. He had extensive scarring to his eyelid and right ear. He required neuro- rehabilitation at Caulfield General Medical Centre. Since the episode, he had ongoing anxiety, agitation, headaches and dizziness, and had to be separated from his wife and children, causing severe significant distress.

19        In August 2011, Mr Peter Mangos, general surgeon, saw the plaintiff at the request of his solicitor. Mr Mangos was aware of the plaintiff’s work injuries. Mr Mangos said that the plaintiff had suffered the following injuries as a result of the assault:

• A head injury with concussion;

• Injuries to the right eye, resulting in loss of sight and replacement with a prosthesis;

• Multiple stab lacerations to the face and ear;

• Aggravated cervical and lumbar pain;

• Severe anxiety and depression.

He accepted that the injuries were consistent with the assault.

20        He noted that following the assault, the plaintiff suffered severe Post- Traumatic Anxiety and takes medication of anti-depressant, Aurorix, and Rivotril, and for the pain he takes Panadol and Endone. He said that since the assault injury, the plaintiff had difficulty in accepting his disabilities and felt that he was grossly scarred and deformed.

21        It was Mr Mangos’ view that the plaintiff had suffered severe injuries following the assault which were superimposed on a WorkCover injury. He said that the plaintiff was unfit to return to any form of work. He felt the effects of the assault would have been sufficient to keep him completely and permanently unemployable had he been in excellent health prior to the assault, which he was not. He said the plaintiff needed psychological support and treatment. He thought his physical injuries had stabilised, but he required further treatment in the form of medication and hydrotherapy. He thought the plaintiff’s prognosis was poor and said that the plaintiff’s life had been absolutely shattered with regards to pain and suffering, enjoyment of life and everyday activities, and that his future appeared very bleak.

22        On 1 June 2011, Dr Mark Lazarus, eye specialist, saw the plaintiff at the request of his solicitor. Dr Lazarus said the plaintiff had no vision, near or distant, in his right eye. The right prosthesis was in good position and the surface was clean. The right eye was phthisis bulbi and there was scarring about the right eye. The right lower lid was scarred medially. He said the plaintiff sustained a right eye perforating injury that has affected his visual system. He said the loss of the right central vision and binocular vision are permanent conditions. It was his view that there will be no change in the right eye and the prognosis for the left eye is normal. He said an ocular prosthesis needs replacement every four to five years at a cost of approximately $1,500.

23        Dr Udovicic, consultant psychiatrist, commenced treating the plaintiff in 2000 and now sees him on a regular basis two to three times a month. Dr Udovicic provided reports since the assault dated March 2009 and July 2011. In 2011, she said since the assault he had suffered severe anxiety and depression. His depression had deteriorated and now prevented him from attending counselling regularly and receiving help. He had shown a poor adjustment, being anxious in public places and relying on an escort to accompany him on public transport to attend appointments. She said he is very self-conscious and feels that others are looking at him in public. He had developed a near social phobia in this respect, convinced that his disability and loss is obvious and repulsive to others.

24        She said that he suffers nightmares of his injury and disfigurement. He experiences insomnia, requiring sedation to sleep. Since the assault, the plaintiff told Dr Udovicic that he had no joy in his life or pleasure. His libido had completely diminished. She said he felt the vision in his left eye was deteriorating and was anxious about the risk of total blindness.

25        Dr Udovicic said, according to the DSM 1 VR Criteria for Access 5 – the global assessment of functioning – the level of disability had not shifted on immediate assessment due to the severity of his disability prior to the assault. She said his clinical picture has changed. She said prior to the assault, he was a vulnerable man, isolated and with limited support. She said that he had suffered a significant injury and as a result of the assault in 2007, a further debilitating injury. He suffered a Post-Traumatic Stress Disorder type syndrome, that previously did not exist, and a worsening of his depressive symptoms.

26        She said the focus of consultations was now on the post-traumatic and phobic aspects of his symptoms and his loss of independent functioning in public places. She said at consultations she has generally addressed the issues arising from the assault. She said she had made some progress in working through his grief and anger.

27        She said he is likely to require ongoing medication and supportive counselling for many years, more in respect to the assault. The assault had markedly worsened his outlook for any recovery or rehabilitation. She said the risk of him becoming blind is a clinical concern and will increase the risk to the plaintiff in his capacity for rehabilitation. She said he was at a high risk for suicide, attempted suicide and suffers a sense of injustice, which fires his thoughts of revenge.

28        On 16 August 2011, the plaintiff was examined by Mr Robin Hooper, ear, nose and throat surgeon, at the request of the plaintiff’s solicitor. The plaintiff complained of hearing difficulties since the assault. Mr Hooper said pure tone audiometry indicated a bilateral severe sensorineural hearing loss; however, the plaintiff’s responses during the audiometric testing were inconsistent. It was Mr Hooper’s opinion that it was not possible to quantify the degree of the plaintiff’s hearing handicap, if any, as the audiometric responses were inconsistent. He said that if the plaintiff had any binaural hearing handicap it could not be attributed to the assault.

Analysis of the Evidence

29        All doctors accept that the plaintiff has suffered significant injuries as a result of the assault.

30        The evidence was that the plaintiff suffered an injury to his right eye with the result that he has lost totally the sight in the right eye and his eyeball, and now wears a prosthetic eye.

31        The plaintiff’s own evidence was that in recent times, his eyesight has diminished. He has had to purchase non-prescription glasses for closer vision. He is concerned that his left eye might deteriorate, of which he was warned of in hospital. As he only has the use of one eye, he is more susceptible to total blindness. This is a real fear for him. The plaintiff’s evidence was that he suffers constant pain in the right eye and the right eye region is very itchy. He dreams that he can see. He was frightened to remove the eye, which he is required to do, to place it in a solution daily. He also wears sunglasses all the time and has difficulty with his balance.

32        In respect of the right ear, the plaintiff suffered a laceration in front of his right ear at the time of the assault. The reports indicate that the plaintiff suffers scarring to his right ear and above his right eye. The plaintiff’s evidence was that he was incredibly self-conscious of the scarring and thought he was grossly disfigured. I was not asked to inspect the scarring.

33        The plaintiff’s evidence was that he has difficulty in hearing. When examined by Mr Hooper, the plaintiff’s responses during the audiometric testing were inconsistent. As a result, Mr Hooper is unable to quantify the degree of the plaintiff’s hearing handicap and said that any binaural hearing handicap that the plaintiff may have could not be attributed to the assault.

34        Mr Mangos confirmed that the plaintiff has suffered pain from soft-tissue injuries. Mr Mangos said the effects of the assault will be sufficient to keep him completely permanently unemployed should he have been in excellent health prior to the assault, which he had not.

35        I accept, at the date of the assault, the plaintiff was suffering injuries from a work-related accident that consisted of head injuries with headaches and dizziness, a painful right shoulder, neck and back injuries, dizzy spells, post- traumatic anxiety and depression and a heavy intake of alcohol, and that his emotional and psychiatric state remained unstable. Since 2000, he had received treatment from Dr Udovicic, psychiatrist, who was treating him at the time of the assault and had prescribed medication.

36        Dr Udovicic said that as a result of the assault, the plaintiff has been further debilitated. As a result of the assault, he now has a Post-Traumatic Stress Disorder type syndrome that previously did not exist, a worsening of his depressive symptoms and the need for ongoing medication and supportive counselling. Further, he has a poor adjustment, is anxious in public places and has developed a near social phobia. He has become isolated from his family.

37        I accept that as a result of the assault, the plaintiff has suffered injury of a significant nature. The loss of sight in his right eye and the loss of the eyeball, together with the psychological reaction to such a loss, the fact that he has lost his balance and the fear of losing the sight in the left eye, are matters that I should take into account in assessing the plaintiff’s general damages. In addition, the plaintiff has suffered a significant psychological reaction to his injuries. Prior to the assault, the plaintiff was a vulnerable man, isolated, with limited support. The medical evidence is that the assault has markedly worsened his outlook for any recovery or rehabilitation. I accept that the effect of the injuries to the plaintiff as a result of the assault exacerbated his emotional and psychological condition. I refer to the evidence of the plaintiff and his psychiatrist.

38        The purpose of compensation is to place the plaintiff in the position he would have been in, absent the injury, to the extent that money is able to do so.

39        Counsel for the plaintiff submitted that in view of the plaintiff’s age and his medical condition before the assault, I had to approach the assessment of damages for pain and suffering with some caution. Counsel submitted that in view of the evidence, an assessment of general damages of $250,000 was reasonable and appropriate. I was informed that there was no claim for future loss of earnings. I was also informed that there was no claim for past medical and like expenses. Counsel said it was difficult to assess the cost of future treatment, but referred to the evidence of Mr Lazarus as to the need to replace the prosthesis and the current cost of a prosthesis.

40        In assessing the plaintiff’s general damages, I take into account his age, the difficulties he had before the assault, and his medical condition at the time of the assault. Given the effect of the assault on this plaintiff’s life, I propose to allow $12,000, being eight replacements of the eye prosthesis at the current cost of $1,500. I accept $1,500 is the cost on today’s values. I have not applied a discount.

41        Taking all these matters into account, in my view, it is appropriate to assess pain and suffering damages in the sum of $250,000, with interest.

42        I will order the defendants to pay the plaintiff’s costs, the amount of such costs to be reserved.