Vlaming v von Marburg - [2020] VSC 340

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
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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vlaming v von Marburg

Details

AGLC: Vlaming v von Marburg [2020] VSC 340
Case: [2020] VSC 340
Decision Date: 10 June 2020

CaseChat Overview and Summary

The case of Vlaming v von Marburg involves a claim for damages due to medical negligence. The plaintiff, Vlaming, alleges that the defendant, von Marburg, a medical practitioner, was negligent in providing treatment, resulting in ongoing physical and psychiatric consequences. The dispute was heard in the Supreme Court of Victoria. The primary legal issues the court had to address were the assessment of general damages for pain and suffering and loss of enjoyment of life, as well as special damages for loss of earning capacity and medical expenses. The court had to consider the principles established in the case of Victorian Stevedoring v Farlow [1963] VR 594 in determining the appropriate amount of damages.

In its reasoning, the court applied the precedent set in Victorian Stevedoring v Farlow, recognising the necessity of considering both general and special damages in cases of medical negligence. The court noted that general damages for pain and suffering and loss of enjoyment of life must be assessed based on the severity and impact of the injuries, taking into account both physical and psychiatric consequences. The court also considered the special damages, which included loss of earning capacity and medical expenses. The court applied the principles from Farlow, ensuring that the damages awarded were commensurate with the harm suffered by the plaintiff.

The court concluded that the plaintiff was entitled to general damages reflecting the significant impact of the injuries on their quality of life, as well as special damages that covered the loss of earning capacity and the costs of ongoing medical treatment. The precise amounts awarded were based on the evidence presented regarding the extent of the plaintiff's injuries and the resultant impact on their life. The court meticulously balanced the need for adequate compensation against the principles of fairness and proportionality in awarding damages.

The final orders of the court included an award of general damages for pain and suffering and loss of enjoyment of life, as well as special damages for loss of earning capacity and medical expenses. The specific figures were determined based on the detailed evidence and expert testimonies provided during the proceedings. The court's decision emphasised the importance of a comprehensive assessment of both the physical and psychiatric consequences of medical negligence in determining appropriate damages.

Orders