Vlaming v von Marburg
[2020] VSC 340
•10 June 2020
IN THE SUPREME COURT OF VICTORIA Not Restricted AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURY LIST
S CI 2015 06386
CASEY VLAMING Plaintiff v ROLAND VON MARBURG Defendant ---
JUDICIAL OFFICER:
Judicial Registrar Clayton
WHERE HELD:
Melbourne
DATE OF HEARING:
25 November 2019
DATE OF JUDGMENT:
10 June 2020
CASE MAY BE CITED AS:
Vlaming v von Marburg
MEDIUM NEUTRAL CITATION:
[2020] VSC 340
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ASSESSMENT OF DAMAGES - Common law damages – Medical Negligence - Ongoing physical and psychiatric and/or psychological consequences of injuries – General damages for pain and suffering, loss of enjoyment of life – Special damages for loss of earning capacity and medical expenses – Victorian Stevedoring v Farlow [1963] VR 594 applied.
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APPEARANCES:
Counsel Solicitors For the Plaintiff Mr A Ingram QC with Ms F Crock Nevin Lenne Gross For the Defendant No appearance JUDICIAL REGISTRAR:
1 The plaintiff, Mr Vlaming, alleges that he was injured as a result of negligent surgery performed by the defendant, Dr von Marburg. Mr Vlaming issued proceedings on 17 December 2015.
2 On 25 September 2017, Dr von Marburg filed an appearance, but did not instruct solicitors. He did not file a Defence to the claim.
3 On 7 June 2018, Mr Vlaming obtained judgment in default of defence pursuant to Rule 60.08 of the Supreme Court (General Civil Procedure) Rules2015.
4 On 8 August 2019, I made orders for the parties to file any expert reports and affidavits, and for the plaintiff to file his particulars of special damage. As the matter had commenced in the Civil Circuit List, I listed the matter for a callover on a date to be fixed. The callover was subsequently fixed for 15 November 2019.
5 Dr von Marburg did not file any material and did not inform the Court or the plaintiff that any witness the plaintiff relied upon was required to attend Court.
6 On 13 November 2019, the Court received an email from Mr Andrew Bowcher of RSM Australia Partners who advised that, on 12 November 2019, the defendant had lodged a Debtors Petition and Statement of Affairs with the Australian Financial Security Authority with the sole purpose of entering into bankruptcy. Mr Bowcher informed the Court that, ‘[a]t this point in time Dr von Marburg isn’t bankrupt as AFSA is currently processing his application and no certificate of appointment has been issued. Should a certificate of appointment be issued I will forward to the Court’. To date nothing has been received by the Court.
7 On 15 November 2019, I fixed the hearing of the assessment of damages for 25 November 2019 and made orders that the defendant was to notify the Court by 20 November 2019 if he required any witness other than the plaintiff to attend the hearing. In the absence of such a notification from the defendant, there would be no requirement for any witness to attend the hearing. The defendant did not notify the Court that any witnesses would be required to attend. The defendant did not attend the hearing of the assessment of damages. With the agreement of the plaintiff, the hearing of the assessment of damages took place in Melbourne, rather than in Wodonga. I heard the assessment of damages on referral from Justice Zammit dated 22 November 2020.
8 Mr Vlaming relies on the following material in support of his application for assessment of damages:
(a) affidavit of Casey Vlaming dated 11 January 2019;
(b) a schedule of special damages dated 27 August 2019;
(c) hearing tests dated 27 March 2006; 14 November 2012; 29 May 2019;
(d) operation reports of Von Marburg dated 22 July 2005; 20 January 2006; and 21 February 2008;
(e) reports of Robert Briggs dated 8 April 2016 and 19 July 2016;
(f) report of Eliza Tweddle dated 29 May 2019;
(g) various records from Wodonga Regional Hospital;
(h) Albury Eye Clinic records from 2008;
(i) Bass Coast Regional Health Service Emergency Department records dated 6 September 2011;
(j) Albury Wodonga Health Emergency Department records dated 1 February 2019 and 10 May 2019;
(k) report of Michael Silverstein and Certificate of Assessment dated 4 November 2016;
(l) report of Mr R. H. West and Certificate of Assessment dated 4 November 2016;
(m) report of Robert Webb dated 24 November 2016; and
(n) report of Michael Epstein dated 5 July 2017.
9 He sought to tender the various medical records and reports without the need to call the author of each report. Pursuant to Rule 40.05 I granted leave to adopt that course in the interests of promoting the efficient and cost effective disposition of the claim.
Background
10 Mr Vlaming was born on 27 January 1971 and attended school in Croydon and Koo Wee Rup until Year 9. He commenced an apprenticeship as a butcher which he completed when he was 20, and worked as a slaughterman and boner at various abattoirs. He then had a number of different jobs including at a cheese factory and on an egg farm until he commenced working in construction in late 2002 with Inform Construction. He obtained forklift, first aid, dogman and crane driver ‘tickets’ and has continued to work in the construction industry since that time.
11 For the past six years he has worked for construction company Hanson & Yuncken, and is currently employed with them as a site manager overseeing workplace health and safety. His role is described as Health, Safety and Environment Coordinator. He is based in Albury and works on construction sites in both Victoria and New South Wales.
12 In 2005, Mr Vlaming developed a right earache with smelly discharge and some pain. He attended Wodonga Hospital Emergency Department on 19 June 2005 and was treated with antibiotics and analgesia. The symptoms returned in July and he re‑attended the hospital on 14 July 2005 and was admitted on 18 July 2005. He was diagnosed with a cholesteatoma. On 22 July 2005 he underwent a right mastoidectomy and ossicular reconstruction, and insertion of a middle ear drain tube, performed by Dr von Marburg. Biopsy confirmed the diagnosis of cholesteatoma.
13 Cholesteatoma is a benign tumour that typically requires surgical removal. It can recur.
14 Mr Vlaming’s cholesteatoma recurred and he underwent further surgery with Dr von Marburg on 20 January 2006. This surgery was a revision mastoidectomy with removal of granulation tissue. Post operatively he had some right conductive hearing loss.
15 There is no allegation of negligence in relation to either of these surgical procedures or the care provided post operatively. Mr Vlaming says that following these procedures he had no particular problems.
16 In around January or February 2008, his right ear symptoms returned and he again attended on Dr von Marburg. He underwent a further revision mastoidectomy on 21 February 2008 (‘the relevant surgery’). The operation notes record that there was a large cholesteatoma in the mastoid and attic and the operation progressed to a modified radical mastoidectomy. The operation notes also record that the facial nerve and the lateral semicircular canal were preserved, however post operatively the progress notes record ‘facial nerve palsy ++ (neuropraxia) ...dizziness ++’. Nursing notes record vertigo and vomiting.
17 The dizziness, vertigo and vomiting improved and he was discharged on 23 February 2008, however the facial droop and other associated injuries, which I will detail later, continued. At follow up on 3 March 2008, he was noted to have a right facial nerve palsy with poor eye lid closure on the right side. On 7 April 2008, he was noted to have no recovery of the ‘right VIII yet’.
18 On 14 March 2008, he attended Paul Giles, Ophthalmic Surgeon, who diagnosed an almost complete right facial nerve palsy.
19 Mr Vlaming was unable to work for eight weeks and then returned to work on a part time basis for a further ten weeks. He subsequently resumed full time employment and continues to work full time.
20 Audiograms conducted on 14 November 2012 and 29 May 2019 showed slight conductive hearing loss in his left ear, and total hearing loss in his right ear.
21 On 6 September 2011, Mr Vlaming presented to Bass Coast Regional Health Emergency Department with right ear pain and right eye discharge. He was noted to have visible pus in the right eye and redness and swelling in the right eye. He was prescribed antibiotics and advised to seek further medical attention back in Albury.
22 On 1 February 2019, Mr Vlaming presented to the Albury Hospital Emergency Department with right ear discharge. His complicated history of chronic recurrent infection with mastoiditis was noted. He underwent extensive ear toileting to remove wax build up.
23 He presented again to Albury Hospital on 10 May 2019 with four days of smelly ear discharge and was diagnosed with otitis externa. He was prescribed antibiotics and referred to the ENT clinic for follow up.
24 He has been diagnosed with the following injuries:
(a) lower motor neurone facial nerve injury involving the right side of his face in the distribution of the facial nerve and its branches which supply the facial muscles;
(b) total loss of hearing in the right ear;
(c) damage to the lateral semi-circular canal on the right side resulting in a vestibular disorder;
(d) partial ptosis of his right upper eyelid and compromise of the protective mechanism of the cornea resulting in a tendency for the right cornea to become dry, opaque, cause discomfort and watering;
(e) mild impairment of eyesight in his right eye;
(f) symptoms of Post-Traumatic Stress Disorder; and
(g) mild, chronic adjustment disorder with depressed mood.
25 The medical material suggests that his condition is largely stable. The facial palsy and hearing loss are permanent. There is some prospect that psychological counselling could assist his psychiatric condition, but the opinion of Dr Epstein is guarded. He considers that Mr Vlaming’s prognosis for improvement is ‘limited’ and that he may prove resistant to any treatment. There is also the prospect that the compromise to the protective mechanism of his cornea will cause damage to his right cornea. At present ocular lubricants have been effective in maintaining the integrity of the right cornea, but there remains a risk of damage, and a risk that further treatments in the form of tarsorrhaphy (the partial sewing together of the eyelids) or gold weight insertion in the upper eyelid may be required.
Negligence of Dr von Marburg
26 Mr Vlaming was referred to Associate Professor Robert Briggs, a specialist in otolaryngology, by his treating general practitioner for assessment in April 2016. His solicitors subsequently sought an opinion from Professor Briggs for an opinion on the care provided to Mr Vlaming by Dr von Marburg. In a report dated 19 July 2016, Professor Briggs says:
In answer to your specific questions, my opinion is that the advice, management and treatment provided by Dr von Marburg for Mr Vlamings’ cholesteatoma was not performed to a standard widely accepted in Australia by peer professional opinion as competent professional practice.
Given that Mr Vlaming suffered a severe facial nerve injury and total sensorineural hearing loss with disturbance of vestibular function as a result of the surgery performed by Dr von Marburg on 21 February 2008, it appears that this surgery was not performed to a standard that would be widely accepted in Australia by peer professional opinion as competently and professionally performed.
My opinion is that Dr von Marburg’s failure to perform the surgery to an adequate standard was a cause of or a material contributing factor to Mr Vlaming sustaining the facial nerve paralysis and deafness in the right ear.
27 Mr Vlaming was subsequently seen on 24 November 2016 by Mr Robert Webb, an otolaryngologist, for the purposes of a medico legal examination. Mr Webb was asked to provide an opinion on the outcome of the relevant surgery performed by Dr von Marburg. Mr Webb says:
Although Mr Vlaming had a severe injury to his right inner ear and facial nerve at the time of the operation performed on the 21.02.2008 there is nothing in the operation notes to suggest how this occurred, In fact the notes state that the facial nerve and lateral semicircular canal were preserved. This is a contract to one of the earlier operations in which a dehiscence over the sigmoid sinus was noted.
It is therefore evident that the facial nerve and lateral semicircular canal had not been damaged by the cholesteatoma or other effects of the associated ear infection. If this had been the case it would have been expected that this would have been recorded in the operation notes.
The injury therefore must have been due to an action performed by Dr von Marburg during the procedure. The most likely injury is to the lateral semicircular canal and the facial nerve, which is adjacent to it, could have been injured at the same time. Another possibility is that the stapes, which is the third bone of hearing connecting to the inner ear, could have been inadvertently avulsed. It is possible that the facial nerve, which is adjacent to this as well, could have been damaged at the same time.
If either of these things had happened, it should have been recorded in the operating notes. The fact that it wasn’t would indicate that Dr von Marburg didn’t notice the damage. The severe effects of damage to the facial nerve and the inner ear during an operation are well known. A major part of a carefully performed mastoid operation by a properly trained surgeon is the identification and preservation of the structures. The fact that both of them were injured and not noted indicates that the surgery was not performed to the expected standard of a competent surgeon….
The facial nerve was not totally divided and has partially recovered. The resolution of the dizziness and the improvement in balance is due to the adaption of the central nervous system to the altered sensory input from the right vestibular system. A significant part of this adaption is the increased reliance on visual inputs for balance. For this reason people with this type of injury can balance satisfactorily in good lighting conditions but have problems in the dark. Mr Vlaming is an example of this…
In my opinion the management and treatment provided by Dr von Marburg was not performed to the standard widely accepted in Australia by peer professionals and competent professional practice. The operation performed was the appropriate one to have done, but it is one where it is essential to identify and preserve structures such as the facial nerve, lateral semicircular canal and stapes….
The reason as to how these injuries occurred is not evidence from the operating notes. The fact that the injuries have occurred and not been noted is also not up to the standard expected for a competent surgeon.
These injuries are rare because a major part of the training in how to perform mastoid operations is the identification and preservation of these important structures. Dr von Marburg would have been able to avoid these injuries if he had performed the operation in the manner expected from a competent surgeon.
28 On the basis of these two opinions I draw the following conclusions:
(a) Mr Vlaming’s injuries arose either as a result of damage to the semicircular canal and the facial nerve, or avulsion of the stapes and damage to the facial nerve, during the relevant surgery;
(b) Mr Vlaming’s underlying condition of cholesteatoma had not caused an injury to these structures at the time of the relevant surgery;
(c) a competent surgeon is trained to identify and preserve these structures;
(d) a competent surgeon would have been able to avoid damage to these structures;
(e) Dr von Marburg did not perform the relevant surgery to the expected standard of a competent surgeon;
(f) Dr von Marburg’s failure to note that he had damaged these structures is a departure from the expected standard of a competent surgeon;
(g) the relevant surgery was not performed to a standard widely accepted in Australia by peer professional opinion as competent; and
(h) Dr von Marburg’s failure to perform the relevant surgery caused, or was a material contributing factor to Mr Vlamings injuries.
29 Based on this evidence I accept the submission that Dr von Marburg failed to provide Mr Vlaming with the standard of care he was entitled to expect, and this departure from the standard of care caused his injuries.
Entitlement to damages for non-pecuniary loss
30 Mr Vlaming has been assessed by Dr Robert West, ophthalmologist, and Dr Michael Silverstein, ear, nose and throat surgeon as having a degree of permanent impairment that ‘satisfied the threshold level’ - that is, that he has a whole person impairment of more than five per cent.
31 Pursuant to the provisions of s 28LWE of the Wrongs Act1958 (Vic), a defendant has 60 days upon receipt of the certificate of assessment and certain other required information to refer the plaintiff to the medical panel. If the plaintiff is not so referred within that time frame, the defendant is deemed to have accepted the assessment. For the purposes of this case, the Court is therefore entitled to consider that the plaintiff has met the necessary threshold and consequently that an award of damages for non-economic loss can be made.
32 Mr Vlaming says that his hearing loss and appearance as a result of the facial palsy have caused him embarrassment and difficulty communicating with others socially. He now avoids social activities and tends to stay at home. Because of his social withdrawal he has noticed that he rarely gets invited to events such as barbecues, days at the weir or visits to the pub. When he works away from home he tends to stay in at nights by himself, rather than go out and socialise with the group, which he previously would have done. He has had bad experiences where he has mistakenly been presumed to be drunk because of his facial appearance and unsteady gait and has been asked to leave the hotel premises as a result. This was embarrassing and distressing. He previously loved the social aspects of his job and being unable to participate has affected him greatly.
33 When he does go out he is unable to hear people who are on his right side. For a long time after he lost his hearing he would try to explain to others that he could not hear them, but now he finds that it upsets him to explain, so he prefers to avoid events where there are groups of people. At his partner’s insistence he attends social functions about once or twice a year.
34 He does not like to be driven as a passenger in a car as he cannot hear what the driver is saying to him. He needs the radio and television turned up to high volumes to hear them.
35 He is embarrassed by his facial palsy and hates being photographed. He avoids being in family photos. About eighteen months ago he was sent to be photographed as a part of the tender application for a job. He felt terrified and found he was sweating profusely and was full of anxiety.
36 His ability to enjoy music, which he is passionate about, has been greatly reduced. He used to travel to Melbourne about once a month to listen to live bands, but now no longer does this. He is a passionate supporter of the Richmond Football Club and used to attend most of their matches in Victoria, as well as travelling interstate on occasion to watch them play. This activity has been reduced.
37 He used to participate in water sports such as swimming and water skiing on the Murray River and in the Hume Weir. He now avoids these activities. He is required to keep his ear dry and protected.
38 He is incapacitated from many roles within the construction industry. Due to his balance problems he struggles to work at height. He is currently able to delegate jobs that require working at height to others. He has difficulty wearing safety googles because of his facial palsy. Despite having a ticket to operate cranes, he is unable to operate a crane anymore due to his hearing loss. He has been told that he speaks very loudly on the phone, and this makes him self-conscious so he tends to move away from others at the work site when speaking on the phone.
39 He says that there are a whole range of day to day circumstances where his injuries cause him embarrassment and difficulty communicating. He has become more self-conscious. He feels constantly frustrated and irritated that he is not as socially and physically active as he once was. He feels bored and upset. His losses have left him feeling isolated and diminished. He feels that his happy life has been taken away and that his is not the same person as he once was.
40 The psychological impact of his injuries has been present since the relevant surgery. However his discovery in 2015 that Dr von Marburg had been the subject of a number of complaints from other patients, including complaints that Dr von Marburg had caused deafness in patients, caused him to be shocked and distressed. He felt that hospital staff had protected Dr von Marburg and this has impacted on his trust in medical professionals and others.
41 He has become more concerned about safety issues in the workplace and much more annoyed with offenders. This has led to confrontations with management and co-workers at times.
42 In his affidavit material and in his presentation before the Court, Mr Vlaming impressed as an honest witness who was not embellishing or exaggerating the impact his injuries have had on his life.
43 Turning to the expert medical material presented to the Court, Mr Michael Silverstein, a surgeon specialising in otolaryngology, says he has sustained:
A lower motor neurone facial nerve injury involving the right side of his case (facial muscles) in the distribution of the facial nerve and its branches which supply those muscles; damage to the lateral semi-circular canal on the right side resulting in a vestibular disorder which causes the client to rely on his vision to maintain his body balance; and total loss of hearing in the right ear…
These injuries can restrict his employment in terms of safety issues (the hearing loss) and social issues (as far as his cosmetic appearance); and restrictions from areas where he may be required to work where there is a significant risk of dust getting into his eye which would cause him further irritations. It is my opinion that this incapacity will continue for the foreseeable future…
In regard to treatment which has bene provided to date for his injuries, there has been an attempt to modify the eyelid on that side to improve closure. This has only been of a limited success. There has been provision of a CROS hearing aide, i/e/ to take the hearing from the good ear and provide a collector on the other side of the head (the bad ear) to transmit sound to the good ear. This is a cumbersome device…
The prognosis at this stage is that the client has a permanent disability in regard to his facial nerve palsy. The client has a permanent disability in regard to his hearing loss on the right side. The client does have a risk in regard to balance issues in areas where he cannot rely on his vision to maintain his body balance; i.e. getting up to the toilet at night.
44 R.H. West, ophthalmologist, says:
Mr Vlaming’s best corrected visual acuity is 6/7.5 right eye, 6/6 left eye. He has partial paralysis of the right side of his face resulting from a right facial nerve lesion. There is a mild ptosis of the right upper eyelid because of the paralysis of his frontalis muscle, causing the eyebrow to droop. He is able to close his right eye on forced closure, but the eye does not close for a unconscious blink. There is a defective Bell’s phenomenon which occurs in a small proportion of normal individuals, and the result of this is that his eyes do not rotate upward under the upper eyelid with blinking or in sleep. This results in an increased risk of corneal exposure from his facial paralysis…
At present he uses ocular lubricant drops several times a day, which supplement his tea film and help to prevent cornea exposure and drying. His condition at present is stable despite the compromise of his protective mechanisms. He will remain at increased risk of damage or injury to his right cornea. There is also a significant cosmetic defect.
45 Mr Robert Webb, Otalaryngologist, says Mr Vlaming has:
[a]n injury to the right facial nerve and inner ear as a consequence of the operation…This has left him with a difficulty chewing on the right-hand side of his mouth and a taste disturbance on that side. He has a total right-sided hearing loss and a significant imbalance in the dark.
Dr Epstein, psychiatrist, notes that Mr Vlaming has no history of psychiatric or psychological treatment or counselling. He notes that Mr Vlaming drinks six to ten beers per day and smokes 20 cigarettes a day. He takes Ramipril 5mg per day and Verapamil 90mg per day for hypertension, but takes no other medication. He reports that Mr Vlaming:
said that he is now rarely happy and feels flat much of the time. On direct questioning he said that his self-esteem and self-confidence had dropped prior to him being informed about issues with Dr von Marburg but his self-esteem and self-confidence have dropped further since then. He said that he has become more bored, restless, frustrated, lonely, isolated, irritable, exhausted, agitated, unmotivated, unsociable and has more problems with memory and concentration.
47 Dr Epstein diagnosed Mr Vlaming with symptoms of Post-Traumatic Stress Disorder, including recurrent intrusive thoughts, distress with reminders of the incident, concerns with regard to his own safety, hypervigilance, emotional withdrawal and a sense of bleakness. Dr Epstein says that his symptoms of post-traumatic stress and his ongoing physical symptoms have led to the development of a mild chronic adjustment disorder with depressed mood.
48 I accept that his injuries involve both a physical disability and a visual deformity and have had a profound impact on many aspects of his day to day life.
Assessment of General Damages
49 The plaintiff submits that he has a significant, life-long impairment that will afflict him for the rest of his life expectancy, being around 35 years. He submits that the appropriate range of general damages is $250,000.00 to $300,000.00.
50 The principle upon which damages are awarded is well known:
...a plaintiff who has been injured by the negligence of the defendant should be awarded such a sum of money as will, as nearly as possible, put him in the same position as if he had not sustained the injuries.[1]
[1]Todorovic v Waller (1981) 150 CLR 402 (‘Todorovic’), [412].
51 The purpose of damages is to restore, as far as it is possible to do so by the award of monetary compensation, the injured person to the position they would have been in had the tortious conduct not occurred.
52 Awards of damages in other cases can be of some assistance, but ultimately each case will turn on its own facts and the assessment of the pain and suffering that each individual has experienced.
53 In determining the appropriate award of damages I have reviewed recent decisions of this Court. In the matter of Bucic v Arnej[2] the plaintiff fell from unsafe scaffolding while at work, sustaining a fractured wrist, fractured ribs, a punctured lung, neck and back injuries and psychiatric and cognitive sequelae. The plaintiff had a pre-existing degenerative back condition, including multi-level disc prolapse, but had nevertheless been able to work in manual labour as a brick cleaner. He continued to work for about two years after his fall, but his back condition worsened to the point where he was unable to work at all, despite his best efforts to do so. By the time of the trial, the evidence supported a finding that the fall had materially contributed to his back and neck condition which had required two surgical procedures, and had caused a range of other injuries including foot drop, a major depressive disorder and cognitive impairments. At the time of trial the plaintiff was 61 and had led a life restricted by his injuries for 12 years. He had ongoing pain. General damages were awarded in the amount of $300,000.00.
[2][2019] VSC 330.
54 In the matter of Waks v Cyprys,[3] the plaintiff claimed damages for sexual abuse he suffered as a child at the hands of the first defendant. As in this case, judgment in default was entered against the first defendant and the case proceeded as an assessment only. The plaintiff was diagnosed with chronic Post-Traumatic Stress Disorder, an adjustment disorder with depressed mood, major depression and polysubstance abuse/dependency. The Court accepted that the effect of the sexual assaults was profound, chronic and likely to continue into the future. General damages were assessed at $200,000.00.
[3][2020] VSC 44.
55 In neither of these cases are the injuries comparable to Mr Vlaming’s, but they give some guidance as to the way the Court has approached the task. Mr Vlaming has suffered permanent debilitating physical injuries that have no prospect of improvement. There is a risk that his vision in his effected eye will be seriously impaired by retinal detachment, and whilst that risk is not high, it is real.
56 As a consequence of the physical injuries Mr Vlaming has sustained a psychiatric injury as diagnosed by Dr Epstein. I accept that his prognosis in this regard is guarded, and consider the prospect of any significant improvement to be small.
57 I accept Mr Vlaming’s evidence that his enjoyment of his life is significantly diminished since his injuries, that he is embarrassed by his appearance and affect and avoids social situations as a result. Although he is not in constant physical pain, he has constant physical reminders of his injuries in the form of his appearance, the need to constantly lubricate his eye and the limitations caused by the facial palsy and his loss of hearing. If the risk to his vision was to eventuate, the consequences would be extremely significant.
58 I assess general damages in the amount of $280,000.00.
Damages for pecuniary loss
59 Mr Vlaming makes a modest claim for past medical and out of pocket expenses in the amount of $3,132.40. I allow that claim.
60 He makes a claim for future medical expenses for quarterly attendances on his general practitioner and his ear, nose and throat specialist for the remainder of his life. There is a prospect that Mr Vlaming will require significantly more medical attention should any of the risks eventuate. There is also the possibility that he will not require all the attendances claimed. I consider quarterly attendances are a fair balance between the two possibilities and allow that amount.
61 Dr Epstein considers that Mr Vlaming would benefit from psychiatric treatment, including medication. Although his prognosis in this regard is guarded, I nevertheless think that there is a prospect that treatment could make a difference to Mr Vlaming and an allowance for such treatment is appropriate. I accept Dr Epstein’s suggestion that he should be seen monthly for three months and then once every three months over a two year period. I allow $46.15 per week for psychiatric treatment in the first year, being initial attendance monthly for three months and then once every three months for the remainder of the year, and $30.80 per week for psychiatric treatment in the second year, being attendance once every three months.
62 Dr Epstein’s evidence is that medication costs are between $100.00 and $200.00 a month. I have allowed $150.00 a month, which is a weekly cost of $34.61.
63 Pursuant to s 28I(2)(b) of the Wrongs Act 1958 (Vic) the appropriate discount rate is five per cent.
64 I have calculated the cost of future medical and like expenses as follows:
Item Weekly cost Relevant multiplier (5% discount rate) Total Quarterly general practitioner attendances at $80 per visit $6.15 892.6 $ 5,489.49 Quarterly ENT visits at $180 per visit $13.85 892.6 $12,362.51 Medication $34.61 892.6 $30,892.89 Attendance on psychiatrist, first year $46.15 50.9 $ 2,349.04 Attendance on psychiatrist, second year $30.80 50.9 x deferred multiplier 0.952 $ 1,492.47 $52,586.40
65 The plaintiff makes a claim for past loss of earnings. After the relevant surgery Mr Vlaming was off work for eight weeks and claims a loss of $1,135.00 per week. I note, however, that had the surgery not been performed negligently, Mr Vlaming would still have required some time off work, and reduce this claim by one week, allowing an amount of $7,945.00.
66 Mr Vlaming subsequently returned to work on a part time basis for ten weeks and claims a loss during this time of $5,570.00. I allow this amount.
Future loss of earning capacity
67 Mr Vlaming is currently in full time work and has been since shortly after the relevant surgery. Despite his injuries, he has been able to continue work in the construction industry. I accept his evidence that he is incapacitated for many roles within the construction industry, including that of crane operator for which he is otherwise qualified. Nevertheless I note that he commenced work with his current employer, Hanson & Yuncken, well after the relevant surgery. It appears that, notwithstanding his injuries and the limitations they impose, he has been able to obtain stable work in the construction industry.
68 The plaintiff submits that it is ‘highly likely’ that he will lose income at ‘substantial rates in the future’,[4] and that it is ‘highly likely’ that he will be unable to work past the age of 67 due to his injuries. He consequently claims the amount of $200,000.00 as ‘a buffer’ against his anticipated future loss of earning capacity.
[4]Plaintiff’s Schedule of Special Damages dated 27 August 2019.
69 At the hearing his counsel submitted that the plaintiff claims a ‘Farlow’ allowance for future loss of earning capacity, and that an amount of $150,000.00 to $200,000.00 was not ‘out of the ordinary’.
70 There is a well-established principle that a plaintiff is entitled to an award of damages for the risk that he will subsequently suffer a loss of earning capacity, when that risk has not eventuated at the time of trial. In Victorian Stevedoring v Farlow[5] (‘Farlow’) the Full Court of the Supreme Court overturned a jury verdict that had awarded a plaintiff a sum that was ‘out of all proportion and such a sum as no reasonable jury properly instructed could assess’.[6]
[5][1963] VR 594.
[6]Victorian Stevedoring v Farlow [1963] VR 594, 594 per Herring CJ.
71 Mr Farlow suffered injuries to his hands, including loss of the joints of several fingers, in an industrial accident. Despite these injuries he had returned to full time work on the wharves in a different capacity and had suffered no loss of earnings. There was no evidence that his employment was in jeopardy.
72 The jury awarded a sum that the court found was ‘far too high’. Sholl J said:
Even if the jury in the present case was entitled – as I think it was – to take the view that the plaintiff, if he had to find work off the wharves, might earn reduced wages and have periods of unemployment, there was simply no evidence that that was likely to be his situation at any foreseeable time. The jury was entitled to award something moderate by way of insurance against the chance of such a situation arising, but they were certainly not entitled, in my judgment, on the evidence in this case, to assess compensation merely for the plaintiff’s being exposed to such an economic risk at the very high sum of £5600, or £5000 or even £4000.[7]
[7]Ibid, 599 per Scholl J.
73 The jury award of damages for loss of earning capacity in Farlow amounted to an award of £7 or £8 a week for the rest of the plaintiff’s working life, in circumstances where there was no evidence that such a loss was probable.
74 Applying the principles of Farlow a sum of $40,000.00 for loss of earning capacity was awarded to a plaintiff in the County Court decision of Sbaglia v Epping Cinemas Pty Ltd.[8] The plaintiff in that case sustained a hip injury in a fall. Although she had returned to her previous job on the same terms, the Court accepted that there was a risk that she would require further surgery and may retire early, and was therefore entitled to ‘reasonable and moderate evaluation in money of the mere chance of risk of further unemployment or less remunerative employment’.[9]
[8][2019] VCC 1289.
[9]Sbaglia v Epping Cinemas Pty Ltd [2019] VCC 1289, [357].
75 In Collins v Staminirovitch[10] the Court of Appeal rejected an appeal from a jury verdict for the plaintiff which awarded her a sum of $70,000.00 for pecuniary loss. The Court rejected the plaintiff’s argument that the award was manifestly inadequate, and was not a verdict reasonably open to the jury. The facts of that case provide little assistance in the present circumstance, as the plaintiff had been unable to work since her injury, and claimed an actual loss of earning capacity, albeit that such a loss was difficult to quantify given her sporadic pre-injury employment history.
[10][2017] VSCA 342.
76 In Brook v Kempton& Ors[11] the plaintiff was physically assaulted by the three defendants, resulting in a mild neurocognitive disorder and a psychological injury. The Court did not accept the expert evidence as to the degree to which these injures would potentially impact on the plaintiff’s earning capacity. Like Mr Vlaming, the plaintiff had returned to full time employment. An allowance of $30,000.00 was made for his potential future loss.
[11][2017] VSC 661.
77 In Hart v Beaumaris Football Club & Ors (‘Hart’)[12] the plaintiff sustained a serious knee injury at a young age. He worked as a hedge trimmer and had continued to work in full time employment. The Court was satisfied that there was likely to be a significant impairment in his future earning capacity and that he was ‘precluded from a wide variety of physical activities which would undoubtedly impact on his employability in the open labour market’.[13] He would also require at least several months out of the workforce should he have to undergo a total knee replacement, which was highly probable. The judge made an allowance for $150,000.00 in accordance with the principles in Farlow.
[12][2016] VCC 232.
[13]Ibid, [195].
78 In the present case there was no evidence presented as to the likelihood that Mr Vlaming would confront probable unemployment in the future. However I accept that, should his employment with Hanson & Yuncken be terminated for any reason, it is reasonable to assume he would face some additional hurdles to employment by reason of his injuries. He would be precluded from certain roles, including jobs that required him to work at height, and crane operations. He would be precluded from any role that required good hearing, or bilateral hearing. He would be unable to take any role that might pose additional risk to the function of his eye, including work in unduly dusty conditions.
79 Weighed against these considerations is the fact that Mr Vlaming was able to secure employment apparently without any difficulty even after he sustained his injuries. There is no evidence that he will require further surgery as a result of the injuries which would require significant time out of the workforce. He still has a number of years in the workforce, but he is not at the very beginning of his career, like the plaintiff in Hart. Taking all these matter into consideration I assess the appropriate allowance to be $100,000.00.
80 I therefore assess the damages in this case as follows:
Head of damage Amount General damages for pain and suffering and loss of enjoyment of life $280,000.00
Past medical and like expenses $ 3,132.40 Future medical and like expenses $ 52,586.40 Past loss of earnings $ 13,515.00 Allowance for loss of earning capacity $100,000.00 Total $449,233.80
81 In addition the plaintiff is entitled to interest and his costs of the proceeding.
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