Vaughan v VWA
[2024] VCC 1526
•11 October 2024
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-07079
| NATHAN VAUGHAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSIKARIS | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 2 July 2024 | |
DATE OF JUDGMENT: | 11 October 2024 | |
CASE MAY BE CITED AS: | VAUGHAN v VWA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1526 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages - serious injury application – injury to the right eye – surgical intervention – secondary trauma induced cataract – impaired vision – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited: Woolworths Ltd v Warfe [2013] VSCA 22
Judgment: Leave granted to the plaintiff to commence common law proceedings for pain and suffering
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison KC with Mr A Dimsey | Stringer Clark Lawyers |
| For the Defendant | Ms F Ryan SC with Ms M Williams | IDP Lawyers |
HER HONOUR:
Introduction
1This is an application for leave to bring common law proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injuries suffered by the plaintiff at work on 31 August 2017 where a metal wire struck him in the right eye.
2He seeks leave to commence proceedings for pain and suffering damages.
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There “serious injury” is defined relatively as meaning:
(a) permanent serious impairment or loss of a body function.
4The body function relied in this case is the loss of function of the right eye and impaired vision.
5The relevant legal principles are well-known and are not in dispute.
6The impairment of the body function must be permanent.
7The plaintiff bears an overall burden of proof upon the balance of probabilities.
8By s325(1)(c) of the Act, the plaintiff’s right eye and impaired vision must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9The plaintiff relied on two affidavits affirmed on 29 August 2023 and 31 May 2024. In addition, both parties relied on medical reports and other material which was tendered in evidence.
10I have read all the tendered material and I will refer to the relevant evidence to the extent necessary in these reasons.
The issues
11The issues for determination are whether the plaintiff’s pain and suffering consequences meet the “very considerable” threshold required by the legislation and whether the impairment is permanent.
Background
12The plaintiff was born in October 1984 in Hamilton, Victoria, and is almost 40 years of age. He was raised near Warrnambool on a dairy farm before later moving with his family to Hay.[1]
[1]Affidavit of Nathan Barry Vaughan affirmed on 29 August 2023, Updated Plaintiff’s Court Book (‘PCB’), 10-11
13He left school after Year 11, and mostly worked on farms driving large agricultural machinery. In 2007, he moved to Western Australia to work in mining and in machinery rentals. In 2009 he returned to Hay and drove trucks, loaders and other agricultural machinery on farms. He then moved back to Warrnambool and worked on a dairy farm. In 2010, he moved to Ballarat and worked on a potato farm before finding work at Luv-a-Duck, a duck meat producer. In 2011, he drove trucks for Whitford’s Liquid Waste.[2]
[2] Ibid 11
14In 2015, the plaintiff commenced employment on a full-time basis as a farm fencer with MG & MB Browne Fencing Pty Ltd (‘Browne Fencing’), the employer.[3]
[3] Ibid
15On 31 August 2017, the plaintiff was working at the employer’s own property and was threading plain wire through holes in existing fence posts. As he was pulling the wire through a fence post it slipped from his hand, flicked up and struck him in the right eye. He was wearing safety glasses at the time.[4]
[4] Ibid 12
16Immediately following the accident, Michael Browne drove him to Eureka Medical Centre who referred him to Dr Trent Roydhouse, ophthalmologist. The plaintiff underwent surgery at Ballarat Base Hospital that day. The plaintiff wore an eye patch after the surgery and was referred to Dr Fabinyi, vitreoretinal surgeon. Dr Fabinyi performed laser retinopexy.[5]
[5] PCB 13, 21
17The plaintiff returned to fencing about a month after his surgery. However, he was worried about further injury and left that employment in late 2017. He found employment with Eureka Concrete driving trucks for a short time and then drove a liquid waste truck for Whitford’s Liquid Waste for about a year. He then worked for Moorabool Valley Eggs for about 3 years as a storeman.[6] In November 2021, he returned to work for Luv-A-Duck.[7]
[6] Transcript (‘T’) 10 Line (‘L’) 4-25
[7] PCB 13
18The plaintiff deposed that before the accident he was in good health, had not experienced any significant accidents or injuries, enjoyed good eyesight and did not need to wear glasses or contact lenses. He agreed in cross examination that one of the consequences that he attributed to his right eye injury was the development of migraine headaches, which he described as “migraine injuries with more pain, my pain headaches”.[8]
[8] T5 L14-17
19The plaintiff was challenged on the accuracy of this in cross examination as he had a prior history of migraines. He described that since his eye injury he developed “like a pain migraine, like a pain headache”.[9] He accepted that he may not have been clear in his affidavit as with the migraines before his injury he did not have pain but would experience dizziness and felt a bit uneasy or unsteady, whereas with the headaches he had following the accident, he had pain.[10]
[9] T5 L25-26
[10] T6
20He also agreed that there had been no mention in his affidavits that he previously suffered from migraine headaches. He explained that this was because he did not consider that the pain headaches he was experiencing were like the migraines.
21He was cross-examined in relation to the clinical entry made by Dr Nicola Cahill from the Eureka Medical and Dental Centre dated 10 February 2022 in which she recorded that the plaintiff wanted to “re-investigate his chronic headache-diagnosed as a vestibular migraine”, that he had “never seen a neurologist”, and that had been “getting fortnightly symptoms since the age of 12”.[11] The plaintiff disputed the accuracy of the clinical record as he had not been having regular migraines since the age of 12 and he did not tell the doctor that he was having migraines fortnightly.[12] He had been getting migraines since he was 12 but he would go months without experiencing one. He would lay down in a quiet room to make his head feel better. He had brain scans done which were reported as normal.
[11] DCB 23
[12] T7 L14-15
22He conceded that insofar as he was aware, the doctors did not attribute his migraines to the eye injury.
23Whilst he worked for Moorabool Valley he drove a forklift. He had trouble with the paperwork, and it took him longer to do his job. He described nearly having to have his head down on the desk to read and he would get comments from co-workers such as “are you having trouble reading” and they called him “squinty”. Whilst the driving of the forklift at Moorabool Valley was not affected by his vision, doing the paperwork was. He had trouble driving the concrete truck for Eureka Concrete because he had to wear sunglasses and focus and strain when trying to reverse into narrow areas, and he struggled as he did not have the “side vision”.[13] He could not do that work.
[13] T15 L7
24He was asked about Dr Roydhouse’s observations contained in the report that he was coping with the decreased vision and that the glare was not a problem. The plaintiff’s evidence was that he did in fact inform Dr Roydhouse that his vision was foggy, and he still had black dots in the eye and that it was a bit hazy. He said that he had to wear sunglasses to cope with it. He explained that glare was not an issue if he wore sunglasses. He was also questioned about Dr McCombe’s comment in his report that he had no problem with his vision during driving, apart from some photophobia in conditions of bright light. The plaintiff said that was because he used his left eye and turned his head around further to give him vision. Bright lights affected him, but he wore sunglasses, so he was all right driving. He said that he did not tell Dr McCombe that he had no problems with the eye when driving.
25He had been advised that surgery should only be considered if the eye really deteriorated because of the risks involved and he had not been advised that surgery would assist in his vision.
Medical evidence
26Dr Roydhouse performed the surgery and when he reviewed the plaintiff a year after the injury, he noted the plaintiff had reduced vision in the right eye compared to the left. His vision was 6/12 on the right with intraocular pressure at the upper limit of normal compared with 6/6 in the left eye. There was a moderate posterior cortical lens opacity cataract, but the lens remained reasonably clear. He also observed residual vitreous pigment and haemorrhage causing visual floaters. The retina showed no signs of detachment, and he noted the plaintiff was coping well.[14]
[14] PCB 20
27In his report dated 27 August 2021 he observed that the plaintiff was coping with his moderate vision decrease and that “glare is not a particular issue”. Surgery could be undertaken to improve his visual acuity but there were substantial risks involved. There was a high chance of underlying capsular damage from the initial trauma, and this increased the risk of an unstable lens and the need for non-routine placement of the intraocular lens. There was also a higher risk for retinal tears and detachment. Given the plaintiff was coping he advised the risks of the surgery outweighed the benefits. If the cataract were to progress over time, surgery would be beneficial.[15]
[15] PCB 24
28Associate Professor O’Day consultant ophthalmologist, saw the plaintiff for medico-legal purposes on 15 April 2024 and he also conducted an impairment assessment. On examination he noted a reduction in the plaintiff’s visual acuity to 6/12 in the right eye compared with 6/9 in the left eye. His near vision in the right eye was J4 compared with J1 in the left eye. He was able to see 12/17 colour plates in the right eye and all colour plates in the left eye. He also noted a tendency for the left eye to be turned inwards on an alternate cover test.
29Associate Professor O’Day noted that the wire penetrated the plaintiff’s cornea damaging the underlying iris and lens, and this had led to the development of a posterior subcapsular cataract. He also considered that the wire extended to touch the retina, and he found an area of chorioretinal scarring in the upper nasal quadrant, where the laser treatment was applied. The cataract on the right side resulted in blurring and distortion, likely causing the visual field defect. If he were to have cataract surgery, that visual field defect may improve as there was an absence of retinal optic nerve damage.[16]
[16] Ibid 26
30It was likely in the long-term he would require cataract surgery and lens implantation on the right side. Assoc Prof O’Day performed an impairment evaluation pursuant to the AMA Guides, Fourth Edition. He found a 9% loss of central vision, 60% loss of visual field, 5% uniocular disturbance and a 66% visual impairment in the right eye. He undertook an alternative assessment of the right eye on the basis of a corrected cataract and insertion of an artificial lens, which would translate to a 50% visual impairment to the right eye, and this was assuming the cataract surgery led to normal central vision and visual field.[17]
[17] Ibid
31The plaintiff saw Dr Thomas Kraemer, consultant neurologist, on 14 February 2023 in relation to the vestibula aura associated with his migraine and he believed it was likely a congenital problem.[18]
[18] Defendant’s Court Book (‘DCB’) 17
32Dr McCombe vitreoretinal specialist, saw the plaintiff on instruction from the defendant on 27 May 2021 and confirmed the plaintiff sustained a penetrating eye injury. He noted the plaintiff reported his vision in the right eye was not quite at the pre-injury level and that he had difficulty with near vision in the right eye as it tended to become blurred. He did not have problems with manual labour, his normal work or distance vision.[19] He had some photophobia in conditions of bright light and occasional eye pain which tended to develop into a migraine. He also found he could not watch television for long periods due to light sensitivity.[20]
[19] Ibid 3
[20] Ibid 4
33Dr McCombe agreed that the visual acuity in the right eye was reduced. There was conjunctival scarring temporally which presumably covered the scleral entry site. The right lens showed signs of posterior subcapsular lens opacity both centrally and peripherally. There was a chorioretinal scar in the superonasal quadrant which most likely represented the retinal impact site. There was evidence of vitreous incarceration in that scar. There was evidence of old vitreous haemorrhage inferiorly, and the retina was attached in all quadrants and appeared stable. His left eye was completely normal. He noted that the monocular visual field study showed peripheral field loss in the right eye.[21]
[21] Ibid
34Dr McCombe expressed the opinion that the secondary effects of the injured right eye were quite stable, although it was possible the trauma-induced cataract may worsen or increase with time. Persistent impairment of ocular function and the reduction of central and peripheral vision was most likely as a result of the secondary cataract in the right eye caused by the trauma. He suggested the plaintiff seek an opinion from an ophthalmologist with respect to the suitability of cataract surgery.[22]
[22] DCB 5
35In his report dated 21 December 2021, he noted that the plaintiff continued to suffer from impaired central vision, impaired peripheral vision and light sensitivity. The visual symptoms led to impaired reading vision. He felt the left eye was dominant and he noted difficulty watching television due to light sensitivity and pain around the eye associated with intermittent headaches. There was sensitivity to light when using a computer screen. These were directly related to the lens opacity or cataract caused by the injury.[23] His symptoms had stabilised, suggesting the degree of cataract had stabilised.[24]
[23] Ibid 7
[24] Ibid 8
The parties’ submissions
Plaintiff’s submissions
36It was submitted on behalf of the plaintiff that:
(a) The plaintiff’s vestibular migraines are wholly different and distinguishable from the pain headaches that the plaintiff is experiencing following the trauma to his eye.
(b) Dr McCombe’s conclusions in his report dated 21 December 2021, that the impact of the injury to the plaintiff’s lifestyle was light sensitivity when watching television or using a computer screen, completely ignored the plaintiff’s complaints in relation to his impaired reading vision, light sensitivity, pain around his eye during intermittent headaches, and the irritation around the eye.
(c) The plaintiff has experienced impaired reading vision, trouble with bright lights, people calling him “squinty”, the need to turn his head to see properly, had problems watching television for long periods, struggled to read/send text messages, had pain above the right eye and sometimes required painkillers. He’d given up on his ambition of being an interstate truck driver, which he planned to do and had a heavy rigid licence, and he struggled with paperwork jobs.
(d) The plaintiff has accepted the advice of his treating surgeon that he should not embark upon surgery until things deteriorated. The surgery could improve his acuity, but there were subsequent risks involved. There was a higher risk of retinal tears and detachment, as well as other consequences. The absence of surgery was not an indication that the plaintiff had little restriction.
(e) The consequences satisfy the threshold.
Defendant’s submissions
37The defendant submitted that:
(a) The true picture with regard to the plaintiff’s consequences is as stated by Dr Roydhouse that the cataract was causing the visual field problems, that the plaintiff is coping with his moderate vision decrease, and that glare is not a particular issue.
(b) Dr Roydhouse’s opinion expressed in his report August 2021 is predicated on the understanding that the plaintiff had relatively insignificant symptoms with which he was coping and that explained why he had not had surgery. Both Associate Professor O’Day and Dr McCombe are of the opinion that the surgery would likely cure his visual defect issues.
(c) The plaintiff had no issue driving forklifts, conceded that sunglasses dealt with the glare, and there was no medical opinion supporting the plaintiff’s assertion that he cannot do truck driving anymore because of any visual issue.
(d) The headaches or migraines had been a very long-standing issue, and the plaintiff conceded he has been told that it was a congenital issue. The opinion of Dr Kraemer confirmed the diagnosis. Even if the Court accepted that the plaintiff’s headaches have become worse, there is no medical opinion connecting the migraines with the eye injury. Dr McCombe merely records a history of occasional eye pain which tended to develop into a headache.
(e) Surgery would likely improve the visual field defects.
Findings
38There was an obvious omission of the plaintiff’s history of migraines before the right eye injury in his affidavits. I do not consider that this was a deliberate attempt by the plaintiff to conceal this history. In cross-examination he impressed me as truthful, and I put the omission down to a difficulty in the plaintiff expressing himself clearly. He said there was a different nature to his experience of headaches, which were accompanied with pain, following his accident. He explained that he “mightn’t have been clear enough on that one”.[25]
[25] T5 L28
39I accept his explanation and the absence of the prior history in his affidavits does not lead me to have concerns or reservations in respect of his credibility. Other than the absence of a history of migraines in the affidavits, there was no real attack made on the plaintiff’s credit. As I have already said, the plaintiff impressed me as a truthful and reliable witness. He did not attempt to overstate his symptoms and complaints.
40I accept the plaintiff as a credible witness and therefore I give substantial weight to his experience as a result of the injury.
41Dr Roydhouse’s opinion that the glare the plaintiff was experiencing was not “a particular issue” is in the context that he agreed that the plaintiff had moderate vision loss and there were significant risks associated with the surgery. The plaintiff did not accept that he told him that he was coping well and that the glare was not a particular issue. His evidence was that the glare was not an issue if he wore sunglasses and that he could cope and that he also told him it was like he was looking through a window.
42In considering Dr Roydhouse’s report, it is useful to have regard to what the Court of Appeal said in Woolworths Ltd v Warfe[26] that rarely do histories contained in medical reports contain a verbatim record of what the plaintiff said and there may be limitations on their accuracy. In that context, I accept the plaintiff’s evidence that he gave Dr Roydhouse a more expansive response, but it was likely summarised by the doctor as not a “particular issue”. Similarly with Dr McCombe, the plaintiff disagreed that he told him he had no problems with vision during driving apart from light sensitivity because he was adamant that he told the doctor that his eye was affected by bright lights, but he wore sunglasses when driving and therefore his driving was alright. Given Dr McCombe’s conclusion that the plaintiff continues to suffer from impaired central vision, impaired peripheral vision and light sensitivity [27] I accept that the plaintiff did tell Dr McCombe.
Consequences of the injury
[26] [2013] VSCA 22, at [112]
[27] DCB 7
Eyesight
43The plaintiff has lost visual acuity on the right eye, and he described the problem being somewhat like looking through fog or steam.[28]
[28] T33 L8-13; DCB 37
44He found it difficult to manage bright light or glare, causing him to frequently squint. He found it hard to focus and has difficulty reading, sending text messages or watching television.[29] His evidence was that he needed to wear sunglasses.
[29] PCB 17
45The consensus of medical opinion is that he has suffered from a loss of visual acuity in the right eye. This loss has very significant consequences to the plaintiff. Although that is likely due to the development of the secondary cataract, I accept Dr Roydhouse’s opinion that given the plaintiff is coping with the loss of vision, the risks of surgery outweigh the benefits unless there is further deterioration. Dr McCombe did express the opinion that surgery would likely improve the visual function, and the light sensitivity would be improved but it would not be completely alleviated by the removal of the cataract.[30]
[30] DCB 8
46Dr McCombe suggested that the plaintiff seek an opinion from an ophthalmologist with regard to the suitability for such surgery. The plaintiff then sought out such opinion from Dr Roydhouse and has acted upon it.
47Associate Professor O’Day noted that even if the plaintiff underwent the cataract surgery, a replacement lens would still result in a visual impairment to the right eye of 50%. [31]
[31] PCB 28
48The plaintiff has to wear sunglasses to cope with the glare and has trouble reading and handling paperwork. I observed the plaintiff squint and attempt to lean in towards the computer screen when giving his oral evidence when he was directed to parts of his affidavit and the clinical records.
49I accept the consensus of medial opinion which points to a loss of visual acuity as well as the plaintiff’s evidence.
Pain
50The plaintiff deposed that his right eye tired and was sore, resulting in migraines every few weeks. He went somewhere dark to rest for a few hours before the headache resolves.[32]
[32] T34 L12-21
51In his second affidavit, he confirmed he continues to get pain above his right eye which sometimes requires him to take painkillers or rest in a dark environment.[33] His oral evidence was that he had pain headaches which he distinguished from the migraines he experienced before this accident.
[33] PCB 17
52Dr McCombe has a history of pain around the eye which can be associated with intermittent headaches and some irritation about the eye.
53I accept the plaintiff’s evidence that he experiences headaches of a different nature to the migraines he had previously, as a result of the eye injury.
Work capacity
54The plaintiff deposed that he planned to drive interstate trucks and obtain a heavy rigid licence, eventually advancing to driving road-trains. He has given up on these plans as he would struggle to cope with the glare when driving, the more frequent headaches and the paperwork associated with such employment. I accept his evidence in this regard.
55He deposed he would not easily be able to return to work operating agricultural machinery due to the glare and the more frequent headaches. Due to the injury, he will need to work indoors precluding him from a range of types of jobs.[34]
[34] T35 L5-11
56I note his evidence that he gave up the fencing job with the defendant and that he could not continue driving the cement truck for Eureka Concrete. He had trouble driving the concrete truck because he had to wear sunglasses, and he had to focus and strain when trying to reverse into narrow areas and struggled with “side vision”.
57I accept his evidence that the loss of visual acuity has caused him serious consequences as he struggles to perform certain duties in an employment context, and this results in a reduction of vocational options open to him. In the context of his educational background and work experience, this constitutes a more than significant consequence. I also accept his evidence that the constant glare he experiences would affect his ability to take on interstate truck driving.
Conclusion
58There is no doubt on the medical evidence that the plaintiff suffered a penetrating injury to the right eye. He has been left with impaired vision and a secondary cataract. I accept that his condition has been stable at least since 2021 and that although there is a risk of progressing to cataract surgery, this is to be deferred until there has been further deterioration and when the benefits of the surgery outweigh the risks of the surgery. Moreover, I accept that there are substantial risks associated with the procedure as outlined by Dr Roydhouse, and he would still have a more than significant impairment if he had surgery.
59I am satisfied that the plaintiff’s eye injury and the consequences that flow from it are permanent. His condition has been stable, and he was assessed as having a permanent impairment by Dr McCombe in 2021. Dr McCombe also noted that it was very likely that the light sensitivity caused by scattering of incoming light by lens opacity would be improved, but not completely alleviated by removal of the cataract.
60For the reasons set out above, the plaintiff’s application for leave is granted in respect of his impaired right eye function.
61I will hear argument with respect to costs.
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