Vogel v Shecky Pty Ltd
[2016] VCC 1600
•2 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-05586
| THOMAS VOGEL | Plaintiff |
| v | |
| SHECKY PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 October 2016 | |
DATE OF JUDGMENT: | 2 November 2016 | |
CASE MAY BE CITED AS: | Vogel v Shecky Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1600 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – pain and suffering – functioning of the eye – functioning of the respiratory system – sleep apnoea – ongoing use of CPAP machine – causation - whether consequences “very considerable” – “range” case
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Grech v Orica Australia Pty Ltd (2006) 14 VR 602; A G Staff Pty Ltd v Filipowicz [2012] VSCA 60; Sutton v Laminex Group Pty Ltd [2011] VSCA 52;; Philippiadis v Transport Accident Commission [2016] VSCA 1; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at [199]; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31
Judgment:Leave is granted in respect to pain and suffering
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Gorton QC with Ms M Lang | Zaparas Lawyers |
| For the Defendant | Mr R Stanley | IDP Lawyers |
HER HONOUR:
Preliminary
1 The plaintiff suffered injury on 8 September 2012, whilst working as a crowd controller for the defendant, at the Night Cat bar in Fitzroy. A patron at the bar threw a bottle, which struck the plaintiff’s head, causing a depressed fracture to the supraorbital area, above the plaintiff’s left eye. (“the assault”). The plaintiff also claims he subsequently suffered nasal obstruction, resulting in sleep apnoea.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application is made under sub-section (a) of the definition contained in s134AB(37) and leave is sought in respect of pain and suffering only.
3The plaintiff claims two serious injuries arising from the assault. In relation to the supraorbital fracture, the plaintiff claims it has impaired the functioning of his eye or, in the alternative, the functioning of the structure of the eye area, or the nervous system surrounding the eye. In relation to the nasal obstruction, he claims it has impaired the functioning of his respiratory system.
4 Mr J Gorton QC appeared with Ms M Lang of counsel for the plaintiff and Mr R Stanley of counsel appeared for the defendant.
5 The plaintiff was called to give evidence and was cross-examined. Medical reports, imaging reports and other material were tendered in evidence. I have read those tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this Judgment.
6 To succeed in this application, the plaintiff must satisfy me of the following:
(i) that he suffered “compensable injury”[1] in the assault;
[1]Grech v Orica Australia Pty Ltd (2006) 14 VR 602, [49]; A G Staff Pty Ltd v Filipowicz [2012] VSCA 60, [8], [30]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [9]
(ii) that the compensable injury results in impairment of a body function;
(iii) that the impairment is permanent;
(iv) that the consequences of the impairment are at least “very considerable”.
7 Mr Gorton acknowledged in his closing that it is impermissible for the plaintiff to aggregate the two claimed impairments, and that it is necessary for me to look at each body function separately.
8 In relation to the supraorbital fracture, I am satisfied that the appropriate body function for me to consider is the functioning of the plaintiff’s eye. In considering the functioning of the eye, it is appropriate, both as a matter of logic and common sense, to include those structures which surround the eye and support its functioning. This includes the eyelids and the nervous system. Mr Stanley submitted that a large part of the eye’s function is vision. While this is of course correct, the structures surrounding the eye form an inextricable part of its functioning, and I consider it would be a nonsense for me to find otherwise. Therefore, in considering the plaintiff’s application regarding the impairment of his eye, it is also appropriate for me to consider his nerve pain, and his symptoms associated with twitching and redness.
9 The test for serious injury is subjective, in that it is the effect on the individual plaintiff that must be considered. However, that determination must be made by me objectively in considering the seriousness of the impairment.[2]
[2]Philippiadis v Transport Accident Commission [2016] VSCA 1
10 For reasons that I will explain below, I am satisfied the plaintiff suffered an injury to his left supraorbital bone, which has resulted in impairment of the functioning of his eye, and that the consequences are at least, very considerable.
11 Further, I am satisfied the plaintiff suffered an injury to his nasal and sinus area, resulting in nasal obstruction which causes him respiratory impairment and requires the use of a CPAP machine. I consider that the consequences of it, are at least, very considerable.
Relevant background
12 The plaintiff is 47 years of age and lives with his wife and two children aged seven and nine.
13 The plaintiff was born in Germany and migrated to Australia at the age of nine.
14 The plaintiff completed school to Year 11, before working with his father as a tiler for two years. He then qualified and worked as a graphic artist for approximately 10 years. In 2003, he commenced employment as a crowd controller for various employers.
15 The plaintiff commenced his employment with the defendant in 2005. He worked approximately 11 hours a week on a part-time basis. In addition to his work as a crowd controller, the plaintiff was an amateur film maker. Since 2005, he has produced and directed numerous short films, some of which were screened in Australian and international film festivals. In 2010, the plaintiff won an award for best film at the Made in Melbourne Film Festival, for his short documentary entitled “Bouncer”.[3] In 2013, he directed a short film entitled “Mabowezi”, which was subsequently named “Heart of a Lion”. The plaintiff accepted that this short film received critical acclaim and was selected to be played in numerous film festivals.[4] The plaintiff also received critical acclaim for a short film entitled “Redemption”, which was a finalist in numerous international film festivals, including in Berlin, Texas, Houston and London.[5]
[3]Defendant’s Court Book (“DCB”) 62
[4]Transcript (“T”) 26, Line(s) (“L”) 9-23
[5]T26, L1-6
16 The plaintiff said that the making of short films has been a very big part of his life, both before and after the assault. In addition to being a producer and director, he has also been involved in both the acting and editing of such films.
17 The plaintiff was also the festival director and organiser of the Angry Film Festival, which ran for several years until 2011 or 2012.[6] For many years, the plaintiff has also organised a monthly short film night in Williamstown, where directors of short films attend and exhibit their work. The plaintiff said he greatly enjoys being involved in these film nights.[7]
[6]DCB 62, T35, L2-5
[7]T37, L24-25
18 The plaintiff previously suffered from hayfever, which had resulted in some blockage of his airways, and for which he took medication. The plaintiff said that prior to the assault he would snore at times, “just like anyone, but not to the amount that I had afterwards where I was short of breath and woke up.”[8]
[8]T52, L2-6
Injury and consequences
19 The plaintiff suffered his injuries the subject of this claim on 8 September 2012 when a patron threw a bottle, striking the plaintiff above his left eye, and causing a laceration. The plaintiff said he did not suffer a blow to the nose, but did suffer a nosebleed after the incident.[9]
[9]T15, L24-31
20 The plaintiff was taken to St Vincent’s Hospital, where the wound was washed out, and he was given four sutures above his left eyebrow.[10]
[10]Exhibit C, page 158, extracts of the plaintiff’s medical records
21 The plaintiff recalled that soon after the assault, he blew his nose and felt a “rupture around the nose area.”[11]
[11]T44, L24-30
22 On 11 September 2012, the plaintiff attended upon Dr Peter Jones at the Circle Medical Group, his local medical clinic. Dr Peter Jones arranged for a CT scan to be performed, and referred the plaintiff for urgent review by the Faciomaxillary Department at St Vincent’s Hospital.[12]
[12]Exhibit C, page 172
23 The CT scan taken on 11 September 2012 demonstrated a comminuted depressed fracture of the left supraorbital area, with components of the fracture involving a left molety of the frontal sinus and there was extension of the fracturing into the anterior left ethmoid sinus region.[13]
[13]Plaintiff’s Court Book (“PCB”) 48
24 On that same day, the plaintiff subsequently attended the Emergency Department at St Vincent’s Hospital. The records indicated that the plaintiff had attended due to ongoing headaches and haemoptysis and that the plaintiff had suffered “increased pain when blew nose today so went to GP – scan done by GP”.[14]
[14]Exhibit C, page 151
25 The plaintiff was referred to the Royal Victorian Eye & Ear Hospital for review the following day, where it was recommended that he undergo surgery.[15] This surgery was performed at St Vincent’s Hospital on 26 September 2012, and involved the insertion of two metal plates, together with 11 screws, to repair the fracture around the plaintiff’s left eye.[16]
[15]Exhibit C, page 155
[16]PCB 15 and Exhibit C, page 199
26 Following the surgery, the plaintiff continued to be regularly reviewed by the Plastics Department at St Vincent’s Hospital. During this time, he made regular complaints regarding scalp numbness, swelling and tenderness around his left eye, together with daily pain.[17]
[17]Exhibit C, pages 166, 168, 169 and 170
27 The plaintiff said that after the assault, he began to have significant problems with snoring. He said this caused him tiredness, and his wife complained so much about the noise, that they had to sleep in separate rooms.
28 On 6 February 2013, the plaintiff attended on Dr Myles Sutton at the Circle Medical Group. His record stated that the plaintiff complained of nasal congestion. It was noted that the plaintiff had a past history of hayfever, and that the nasal congestion had been worse after the assault.[18]
[18]DCB 27
29 On 8 May 2013, due to ongoing complaints of discomfort and restriction of movement around his eyelid, the plaintiff underwent surgery to remove the plate and screws. This surgery was performed at St Vincent’s Hospital.[19]
[19]PCB 16,
30 When the plaintiff completed the health questionnaire prior to undergoing this surgery, he indicated that he had been diagnosed with sleep apnoea.[20]
[20]Exhibit 2, prior to completing this, he completed a questionnaire on 6 March 2013
31 In his first affidavit, the plaintiff said that he been diagnosed as suffering sleep apnoea, by respiratory specialist, Dr John Hunt. His medical records suggest that he was referred to Dr Hunt on 9 May 2013, the day following the surgical removal of his plates. However, during the hearing of the plaintiff’s application, it was confirmed that the plaintiff never actually saw Dr Hunt. Instead, in August 2013, the plaintiff saw Dr Adrian Chazan, a respiratory and sleep disorder physician, who practiced at the same rooms as Dr Hunt.[21]
[21]T74, L13-31, T75, L1 -31, T76, L1-2
32 The plaintiff appeared genuinely confused as to who first diagnosed him as suffering sleep apnoea and, on reflection, he thought his general practitioner may initially have raised it in a conversation.[22]
[22]T50, L23-27
33 Dr Chazan obtained a history from the plaintiff that he suffered symptoms including snoring, frequent nocturnal awakenings, gasping/choking during the night, referred sleep and excessive daytime sleepiness. He noted that the plaintiff had been assaulted in 2012 and suffered facial injuries to the left frontal and maxillary region, which had resulted in “persistent left nasal obstruction in the subsequent development of the symptoms listed above.”[23]
[23]PCB 37
34 In an undated supplementary medical report, Dr Chazan noted that the plaintiff had experienced left nasal obstruction since the assault, and that he had confirmed left nasal obstruction during his physical examination of the plaintiff on 14 August 2013. He noted, however, that he had not performed an intranasal examination on the plaintiff, as his focus had been on treating the plaintiff’s sleep problems. Dr Chazan acknowledged he was not a specialist in nasal pathology.[24]
[24]PCB 39
35 Dr Chazan arranged for the plaintiff to undergo a diagnostic sleep study on 3 April 2014. It demonstrated that the plaintiff’s sleep was “severely fragmented with only minimal amounts of REM and slow wave sleep. Frequent snoring was detected.”[25]
[25]PCB 49
36 Following the sleep study, Dr Chazan recommended the plaintiff use a nocturnal CPAP, which he commenced using in May 2014. Dr Chazan considered the CPAP treatment was effective in minimising the plaintiff’s symptoms, as well as reducing the risk of long-term medical complications arising from sleep apnoea. He considered the plaintiff’s long-term prognosis to be excellent.
37 The plaintiff said that the CPAP mask can aggravate his pain, as it must sit close to his face to avoid oxygen leaking out. He also said that his wife sleeps in a separate room, as the noise from the machine disturbs her.[26]
[26]PCB 19.2
38 In April 2016, the plaintiff was referred to neurologist, Dr Michael Poon. In a report dated 8 April 2016, Dr Poon noted that the plaintiff complained of persisting pain following a left supraorbital ridge skull fracture, over the area of the fracture, as well as some pain radiating upwards across the frontal forehead. It was further noted that the plaintiff complained of some left eye twitching around his eyelid.[27]
[27]PCB 33
39 Dr Poon stated that, on examination, the plaintiff suffered some mild blepharospasm bilaterally and that he was able to elicit pain when pressing the plaintiff’s supraorbital nerve as it exits the foramen.[28]
[28]PCB 33
40 Dr Poon then arranged for a CT scan to be performed of the plaintiff’s head, which demonstrated “a very small defect in the supraorbital region”.[29]
[29]PCB 35 & 52
41 Dr Poon recommended that the plaintiff take Lyrica on a daily basis to control his symptoms and to “accept that the pain will remain”.[30] Dr Poon also discussed the possibility of a referral to a faciomaxillary surgeon to fix the defect in the supraorbital region, but considered the plaintiff was unlikely to benefit from such surgery.
[30]PCB 35
42 The plaintiff takes 25 milligrams of Lyrica in the morning and 75 milligrams at night. The plaintiff stated that the Lyrica has given him some reduction in his pain.[31]
[31]T66, L11-13
43 Following the assault, the plaintiff developed symptoms of Post-Traumatic Stress Disorder, and he did not return to work as a crowd controller. He thereafter obtained casual employment as a traffic controller.[32] The plaintiff ceased such work in June 2016,[33] at which time he commenced a seven-month Diploma of Screen and Media at the Sound and Audio Engineering Institute.[34]
[32]PCB 16
[33]PCB 19.1
[34]PCB 19.2
44 The plaintiff said that although he has considerable practical experience in the making of short films, he was keen to finesse his skills in the technical areas of editing and filming.[35] Whilst studying this course, the plaintiff said he has experienced difficulties with his left eye when reading course material, when editing films, and when looking through the viewfinder to film a movie.[36]
[35]T41, L19-28
[36]PCB 19.4, T40, L22-30, T42, L16-28,
45 When the plaintiff lodged his serious injury application in May 2015, he also sought a certificate in respect of loss of earning capacity consequences. He ultimately abandoned that aspect of his claim in August 2015,[37] and it thereafter proceeded on the basis of pain and suffering consequences only.
[37]PCB 61
46 The plaintiff complained of a sensation in which he feels his left eye is not in the correct part of its socket. The plaintiff said that when he is tired his eye starts to twitch and flicker.[38] The plaintiff said that if he is reading, or working on a computer monitor editing short films, for more than 30 minutes, he has to take a break and rest for about 15 minutes. As a result, it takes him longer to study.[39] He also complained that this eye twitching makes it hard for him to do the filming and editing associated with the production of short films.
[38]PCB 19.3
[39]T41, L1-5
47 The plaintiff said that he feels permanent tingling and numbness in the triangular area above his left eyebrow, over the front of his forehead, towards his scalp. He described this tingling sensation as “constant and irritating”.[40]
[40]PCB 19.2
48 The plaintiff said that on occasions the pain is severe, and described it as being comparable to an ice-cream headache. When this occurs, he has to go to his bedroom, close the blinds and lie down for 15 minutes or up to an hour.[41] He said this occurs spontaneously every two to three weeks.
[41]PCB 19.2
49 The plaintiff stated that when he wakes up in the morning he has a droopy left eye, and that he is conscious of this when in public.[42]
[42]PCB 19.3
50 When the plaintiff’s eye is tired and it twitches, he is unwilling to drive.[43]
[43]PCB 19.4
51 The plaintiff also complained that his eye is affected when he swims in a saltwater swimming pool. On two occasions, whilst travelling in Queensland with his children, the plaintiff’s left eye became red and swollen. Photographs demonstrating this were tendered.[44] The plaintiff said that at such times he has to clean out his eye with saline, and that on his most recent holiday it meant he was unable to do things with his family for about two and a half days.[45]
[44]Exhibit A – photographs of the plaintiff’s eye taken in the first half of 2016
[45]PCB 19.5
52 The plaintiff complained that he feels sensitive to sun glare, although acknowledged that he rarely uses sunglasses to help with this.[46]
[46]T58, L 8-11
53 The plaintiff also complained of a reduced sense of taste and smell since the assault.[47]
[47]PCB 19.3
54 The plaintiff had initially suffered symptoms consistent with Post-Traumatic Stress Disorder. While this has improved over time, the plaintiff continues to suffer nightmares relating to the assault.[48]
[48]PCB 19.3
55 The plaintiff said that he has been very emotional regarding his physical impairment, and he finds it hard to accept that “the doctors can’t fix me”.[49] He said he is struggling to live with his pain, and that he was tearful on a daily basis.[50]
[49]PCB 19.6
[50]PCB 19.6
Medical evidence
56 In support of his application, the plaintiff relied upon reports from his treating practitioners – Dr Poon in respect of his eye impairment and Dr Chazan in respect of his respiratory impairment.
57 The plaintiff’s solicitor had arranged for the plaintiff to be examined by ophthalmologist, Dr David Gale, in September 2015. Upon examination, he noted the plaintiff suffered sensitivity to glare and some mild blephartis (inflammation of the eyelids).[51] In relation to the plaintiff’s vision, he noted that the plaintiff had pre-existing simple myopia since nine years of age, which was corrected with single vision glasses. Dr Gale further noted that this had not been aggravated or exacerbated in the assault.
[51]PCB 44
58 The defendant relied upon Dr Gale’s report in support of its submission that, in circumstances where his vision has not been impaired, there is minimal impairment to the functioning of the plaintiff’s eye.
59 The defendant also relied upon an opinion it obtained from Mr Hugh Millar to dispute the causal connection between the plaintiff’s claim for sleep apnoea, resulting in impairment of his respiratory function, and the injury.
60 Mr Millar reviewed medical records provided to him by the defendant, including the CT scan of 11 September 2012 and the sleep study report dated 14 August 2013. Mr Millar concluded that because the plaintiff’s injury was directed to his left supraorbital ridge region, it was “well away from the lower half of the nose and the nasal septum.”[52]
[52]DCB 2
61 In his report dated 9 November 2015, Mr Millar explained the anatomy of the nose, involving the upper and the lower halves. He stated that the upper half comprises the nasal bones and noted there was no evidence the plaintiff suffered a nasal fracture. In relation to the lower half of the nose, Mr Millar stated the nasal septum is supported by upper and lower cartilage levels. He said that the nasal septum can be relatively easily dislocated by trauma, leading to septal deviation and nasal obstruction. Mr Millar stated that, in his opinion, if that had occurred he would have expected evidence of some nasal swelling, with or without bleeding.[53]
[53]DCB 2
62 Mr Millar therefore concluded that it is unlikely the assault caused any nasal septal deviation.
63 I note that Mr Millar did not physically examine the plaintiff. Of greater significance, however, I note that his report does not refer to the following matters which I consider likely to be significant to the plaintiff’s nasal complaint:
· nose bleed immediately after the assault;
· history of increased pain when he blew his nose on 11 September 2012;
· ongoing haemoptysis as at 11 September 2012;
· the CT scan of 18 January 2013 which referred to the nasal septum being moderately convexed.
64 It is unclear from Mr Millar’s report if he was aware of such matters.
65 Mr Stanley submitted that I should prefer the opinion of Mr Millar to Dr Chazan, as Mr Millar is a highly qualified medico-legal specialist, with expertise in the head and neck, and experience in the concept of causation in personal injury claims. Although that is true, the omissions referred to above are such that I am reluctant to rely upon Mr Millar’s opinion.
66 Mr Stanley submitted that Dr Chazan was focused upon treating the plaintiff, that he had not performed an intranasal examination and that he was not a specialist in nasal pathology. However, as a respiratory and sleep disorder physician who examined and treated the plaintiff, I consider Dr Chazan to be in a better position than Mr Millar to comment upon the plaintiff’s nasal obstruction and sleep apnoea. I consider it unlikely that Dr Chazan would have just blindly accepted the plaintiff’s history without considering the matter for himself. I therefore attach significant weight to Dr Chazan’s finding of left nasal obstruction during the physical examination on 14 August 2013, and his opinion that this arose from the facial injury suffered in the assault.
67 I further note that Mr Millar stated that the sleep study referred to significant anatomical reasons for the plaintiff’s snoring tendency and sleep apnoea, including the plaintiff having large tonsils and being overweight.
68 It is not necessary for the assault to be the sole or dominant cause of the plaintiff’s sleep apnoea. It is sufficient for it to be a cause, and Dr Chazan supports such a causal connection. Further, in circumstances where there is a close temporal connection between the assault and the significant increase in the plaintiff’s nasal obstruction and snoring, I am satisfied that the assault resulted in nasal damage which is a cause of the plaintiff’s sleep apnoea.
Plaintiff’s credibility
69 The defendant criticised the plaintiff for failing to adequately detail his amateur film making endeavours in his first affidavit sworn in May 2015. The plaintiff's explanation for this was that, as at the time he was seeking a certificate in respect of his loss of earning capacity, his focus was on his actual earnings. In circumstances where he had never earned any income from his short films, the plaintiff did not consider such endeavours relevant to his serious injury application. He stated that he had collaborated with other short film makers,[54] which he said referred to the volunteer work he and others did when making such short films.
[54]PCB 18
70 I do have some concern as to the plaintiff’s failure to adequately detail, in either his first or second affidavits, his extensive involvement in the short film industry. I also note that the plaintiff did not refer to his involvement in organising either a short film festival or regular short film evenings. It was apparent to me these activities form a very big part of the plaintiff’s life, which he significantly downplayed in both affidavits. In circumstances where his second affidavit was sworn at a time that his claim was for pain and suffering only, I consider the plaintiff ought to have detailed his involvement in such activities, and his ability to continue doing so after the assault. However, in cross-examination, he readily accepted his involvement in such activities and acknowledged its importance to him. Therefore, his lack of candour in his affidavits is not sufficient for me to have reservations regarding his credibility.
71 The defendant cross-examined the plaintiff in respect of the compensation claim he made with the Victims of Crime Compensation Assistance Tribunal in early 2014. In his supporting statement, the plaintiff referred to the psychological consequences arising from the assault, and made no mention of ongoing symptoms relating to his eye injury, or his sleep apnoea.[55] The plaintiff’s explanation, was that he believed the compensation was focused upon the psychological injuries arising from the crime. The plaintiff could not recall the basis upon which he had formed this opinion, but I accept it to be a genuine explanation as to why he did not detail his physical symptoms in that application.
[55]PCB 58
72 Other than these two issues, there was no real attack made on the credit of the plaintiff. I accept the plaintiff as a trustworthy and reliable witness. I do not consider that he attempted to overstate his symptoms and complaints. The plaintiff acknowledged that his nose was not directly hit in the assault, and I consider this to be an example of his honesty.
Permanent
73 In order to satisfy the definition of serious injury, the plaintiff must prove the injury and its consequences are both serious and permanent.
74 I am satisfied that the plaintiff’s eye and nasal injuries, and the consequences which flow from each are permanent. The plaintiff takes Lyrica medication daily, and although further surgery has been discussed, it was not recommended. In relation to his sleep apnoea, the plaintiff uses a CPAP machine each night, and expects to do so for the rest of his life. No further treatment has been recommended that will result in a resolution of his symptoms.
Pain and suffering consequences
75 I must now consider whether the consequences to the plaintiff meet the test of “very considerable.” In doing so, I will separately consider the consequences in relation to his eye impairment and the consequences in relation to his respiratory function.
76 In Haden Engineering Pty Ltd v McKinnon,[56] Maxwell P said at paragraphs 9–12:
[56](2010) 31 VR 1
“In its accepted interpretation, the ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. (I will refer to the second element as ‘the disabling effect’ of the pain.)
As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale mild/moderate/severe. Unless the pain is constant the Court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily compromise the following:
(a)what the plaintiff says about the pain (both in court and to doctors);
(b)what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c)what the doctors say about the extent and intensity of the plaintiffs pain; and
(d)what the objective evidence shows about the disabling effect of the pain.
As to (a) the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.”
77 My acceptance of the plaintiff as a credible witness, enables me to give substantial weight to the plaintiff’s experience of pain, as described by him in his affidavit, oral evidence and in the history given by him to the examining doctors. I also note that none of the doctors suggested he exaggerated his symptoms.
Impairment of the eye
78 In relation to the functioning of the plaintiff’s eye, I accept that the plaintiff suffers constant tingling, pain and numbness in the area above his left eyebrow, towards his scalp. Although it is usually a low level irritation, it is unrelenting. He also experiences constant pain just below his left eye, which is tender to touch.
79 I accept that the plaintiff takes Lyrica, both in the morning and at night, for this persisting pain. As has been recognised by the Court of Appeal, this need for daily pain relieving medication is a consequence of some significance.[57]
[57]Kelsov Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at [199]; ACN 005 565 926 Pty Ltd v Snibson[2012] VSCA 31 at [71]
80 In addition to the constant tingling pain, approximately once every two to three weeks, the plaintiff experiences what he describes as an “ice-cream” headache. These headaches come on unpredictably and require the plaintiff to lie down, with the lights out for a period of time.
81 I also accept that the plaintiff feels his left eye looks droopy and it feels like it does not sit properly in its socket.
82 I am also satisfied that the plaintiff’s left eye tires easily and, in particular, after reading or looking at a computer screen for more than 30 minutes. I accept this currently causes him interference in his studies, and that it will restrict him in the future when editing short films. I also accept that tiredness, can cause the plaintiff twitching in his left eye and that, as a result of this, he has at times left social functions early,[58] or has not driven his children, as he did not consider it safe to do so.[59]
[58]T72, L1-6
[59]PCB 19.4-19.5
83 I also accept that the plaintiff can suffer painful redness in his left eye, after swimming in a saltwater pool. Although this is an infrequent occurrence, I accept that when it does occur, it interferes with his ability to enjoy precious time with his children on holiday.
84 In considering the plaintiff’s experience of pain, I am satisfied that the consequences arising from the impairment to his eye, when judged by comparison with other cases in the range of possible impairments or losses, are very considerable.
Impairment of respiratory function
85 As stated above, I accept that the assault was a cause of the plaintiff’s sleep apnoea. I am satisfied that he now uses a CPAP machine on a nightly basis. I accept the plaintiff’s evidence that he finds the mask uncomfortable at times, in the way that it sits around his nose and left eye. I make no criticism for him not seeking a further review with Dr Chazan, as I accept the plaintiff’s explanation that he understands use of the CPAP machine is long-term and that nothing further can be done for him.
86 I consider the nightly use of a CPAP machine to be a very significant consequence to the plaintiff. Sleep is a fundamental aspect of daily living. To be attached to a machine in order to sleep each night would be both cumbersome and inconvenient. It would diminish the pleasure of an unobstructed sleep.
87 I also accept that the plaintiff’s wife sleeps in a separate room due to the machine’s noise. This deprives the plaintiff of the intimacy and companionship experienced when sharing a marital bed.
88 Therefore, I am satisfied that the consequences, arising from the impairment to the plaintiff’s respiratory function, when judged by comparison with other cases in the range of possible impairments or losses, are very considerable.
Conclusions
89 For the reasons detailed above, the plaintiff’s application for leave to commence a claim for common law damages for pain and suffering is granted, both in respect to the impairment to his eye and the impairment to his respiratory function. I shall make consequent orders.
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