Webb v VWA
[2024] VCC 941
•6 June 2024 (ex tempore)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-04731
| JOSHUA WEBB | Plaintiff |
| V | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 June 2024 | |
DATE OF JUDGMENT: | 6 June 2024 (ex tempore) | |
CASE MAY BE CITED AS: | Webb v VWA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 941 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the eye – pain and suffering consequences – permanent disfigurement – impairment consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:TTB SMS Pty Ltd v Reading [2020] VSCA 203
Judgment: Leave granted for the plaintiff to commence a common law proceeding for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Mr O Lesage | Zaparas Lawyers |
| For the Defendant | Mr S Scully | TG Legal + Technology |
HIS HONOUR:
Introduction
1Joshua Webb is the plaintiff in this proceeding. He is a now 24-year-old single man who is employed as a carpenter. As at 30 June 2021, he was an apprentice carpenter working for his brother with JMW Carpentry Solutions Pty Ltd when an accident occurred. The circumstances of the accident are not in dispute. A coworker or perhaps a subcontractor, rather, discharged a nail gun, and somehow in that process the nail ricocheted and struck the plaintiff to the right eye ('the incident').
2There is no dispute that the incident occurred or that it resulted in blunt trauma to the plaintiff's right eye. In that context, this proceeding is a serious injury application brought pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013. Specifically, the plaintiff claims to have suffered a serious injury by way of a serious physical injury to his right eye within the meaning of s325(a) of the Act. Or, in the alternative, although perhaps not pressed as strongly, a serious injury on the basis of permanent serious disfigurement within the meaning of 325(1)(b).
3The proceeding was conducted broadly in the usual manner, save that, sensibly, the defendant did not seek the cross-examine the plaintiff on what he had said in his affidavits. The usual manner involved the parties tendering affidavits, medical reports and other documents as contained in the court books. I note the plaintiff swore two affidavits on 1 June 2023 and more recently on 24 May 2024. I accept the contents of those affidavits.
4This is not a proceeding in which the plaintiff's credit is in issue. Pausing for a moment, I should say the parties, in my view, should be commended in the swift manner in which this proceeding was conducted in the context of the obvious injury and the relatively narrow but important issue in dispute. In a similar vein, the medical material, I must say, is also refreshingly noncontroversial and almost in complete agreement – if not largely in agreement.
5In short, there is no dispute that because of the incident the plaintiff suffered a blunt trauma to the right eye described in terms that I can understand as a permanent dilatation of the right pupil, productive of symptoms of blurred vision and sensitivity to sunlight or glare. He has also developed what his treating specialist Dr Bob Wang has confirmed as a right traumatic cataract. See as an example Dr Wang's report at plaintiff court book 60.
6Because of the injuries, the plaintiff has on the medical evidence an increased risk of cataract surgery and an increased risk of glaucoma. There is some dispute, if not the only dispute in this proceeding, as to whether he is a slight risk of the cataract surgery or whether it could occur in the future or might likely occur in the future. Not much turns on that in circumstances where the plaintiff, as one of the consequences, has already a cataract to the right eye.
7The treatment has been conservative. It now consists of 12-monthly reviews with Dr Wang. The initial treatment was assessment and stabilisation at the Eye and Ear Hospital. None of that is controversial. There is no suggestion that there is some other treatment that the plaintiff requires at present. Indeed, as Mr Scully, counsel for the defendant, pointed out, there is no suggestion the plaintiff should be using any medication at the moment.
8Effectively, the plaintiff is having no treatment other than the use of sunglasses to minimise sun glare when outside. I note I had an opportunity to inspect the plaintiff's face and eyes when he came to the witness box, although he was not sworn in. I was struck, I must say, by the extent of the dilatation of the right pupil. Amongst the plaintiff's court book, there was a photograph of it. The photograph, in my view, does it justice.
9At this point, I do not consider anything I have set out so far to be contentious or in dispute. The relevant legal principles also are not contentious and are not in dispute. Of course, the plaintiff bears the overall evidentiary onus to establish a serious injury. The assessment of such injury is a value judgment informed on the evidence, also in part by a reference to what the plaintiff says in his affidavits about it.
10Broadly, I am to consider things such as whether there is pain, whether there are impairment and impairment consequences from it. But, as said in TTB SMS Pty Ltd v Reading [2020] VSCA 203, I must consider the broad range of possible impairments and impairment consequences and not just those that come before the courts.
11At the risk of not doing justice to either side in an ex-tempore judgment, in submission, Mr Scully on behalf of the defendant submitted that the impairment consequences to Mr Webb does not justify a finding of a 'very considerable impairment consequence.'
12Mr Scully appropriately conceded that the incident occurred and injury was suffered, but submitted that the circumstances of this case were such that, bearing in mind the range of impairments and impairment consequences and not just those that come before the courts, the plaintiff had simply failed to demonstrate a 'serious injury'. In that regard, Mr Scully highlighted the lack of treatment, the fact that pain-killing medication was not required, the fact that the plaintiff had returned to work as a carpenter and had returned to his hobby of playing Australian rules football.
13Broadly, the submission on behalf of the defendant was that, in a consideration of what was retained, the plaintiff had simply not made out a very considerable consequence.
14On the other hand, Mr Tobin SC, who appeared together with Mr Lesage, submitted the opposite, namely, that a 'very considerable' consequence had been made out. Mr Tobin SC, in a lovely turn of language, described the eye as the window to the mind. Mr Tobin SC highlighted that the plaintiff from about 24 centimetres now had double vision.
15Mr Tobin SC highlighted how the plaintiff already has a cataract and there is a concern about the progression of it as described in the medical material. Further, there is also the possibility of glaucoma and lens-replacement surgery, consistent with the 12-monthly monitoring by Dr Wang. As Mr Tobin SC noted, anything with fine vision was now difficult for the plaintiff. True it is that he had returned to work in his vocation as a carpenter, perhaps fortunately for him, was not a vocation that required precise or fine vision.
16But, nevertheless, when working outdoors, the plaintiff was required to be cautious about managing the amount of light to the eye, necessitating the use of sunglasses. Mr Tobin SC described the consequences to the plaintiff as perhaps not enormous but ones that do exist, and highlighted the plaintiff's young age and the daily vision problems, and, as I mentioned, the risk of deterioration.
17There is no need to delve in any detail into the plaintiff's affidavits. He has consistently set out there the main consequences, being the double vision and sun glare.
18Equally, there is not a need to delve into the medical evidence. But, I note that Associate Professor Justin O'Day, who I take judicial notice of as someone who has provided many reports involving eye injury, in his report of 5 December 2022 at defendant's court book 4, but more particularly at page 5, described how the right lens showed a posterior subscapular lens opacity.
19He said in summary the traumatic eye injury had caused a dilated right pupil, which was poorly responsive to light, what he described as a recession at 180 degrees of the angle and a posterior subscapular cataract. He noted the plaintiff had difficulty with bright light, has developed glare in the right eye, and now wears sunglasses, he recorded, all the time at work. He said the plaintiff was aware that the visual acuity in the right eye is decreased for near and that he was concerned about the cosmetic appearance.
20In respect to prognosis, Associate Professor O'Day said he thought the cataract was static. It could progress to one that required cataract removal and intraocular lens implantation at an earlier stage than might be expected to occur in the left eye. He also said there was a long-term risk of glaucoma arising from the damage to the eye, but at this stage no evidence of that, but said that the plaintiff would require periodic review.
21There is not much difference of opinion amongst any of the medical specialists, but Associate Professor O'Day, as I understand it, seems to have about got it right. His opinion is consistent with that of Dr Stawell who, in a report of 22 February 2024 to the plaintiff's solicitors, said pretty much the same thing. Dr Stawell had a history that the plaintiff noted the vision in his right eye is not as good as the left. He suffered significant glare and needed to wear sunglasses all the time outdoors, and noted slight right monocular diplopia when looking near.
22Dr Stawell said reduced vision in the right eye was not interfering with work or leisure activities. The plaintiff was concerned about the cosmetic appearance. Dr Stawell diagnosed, effectively, the same injury as Associate Professor O'Day. The plaintiff continued to suffer with symptoms from the right blunt injury, including blurred vision, glare, and an abnormal pupil.
23Dr Stawell said the cataract was stable, not causing significant symptoms, but in his words, 'was likely to progress and ultimately require cataract and lens implantation surgery.' In that regard, his opinion is slightly less optimistic than that of Associate Professor O'Day, but the balance of his opinion is really ad idem.
24The only other relevant medical opinion is that of the Medical Panel. In reasons for opinion given in respect to an impairment assessment, which are not for the purpose of this proceeding binding on me – that is, reasons given 13 April 2023 – the panel opined that there were symptoms of blurred vision and difficulty with glare and that there was a risk of cataract surgery and a risk of glaucoma.
25Tying those opinions together, it seems to me there is no doubt on the medical evidence that the plaintiff suffered a blunt injury to the right eye. There is no doubt that he has been left with some form of blurred vision. There is no doubt that he has a cataract. There is no doubt that he is at a risk of progressing to cataract surgery or a risk of glaucoma. The question is whether that is a slight risk or is something that he could require, or in the case of Dr Stawell, he is likely to require.
26Without hearing from the doctors it is difficult to resolve that slight tension in the medical evidence, but ultimately it does not affect the outcome of this proceeding. It must not be forgotten that the plaintiff is still a very young man, still just 24 years of age. I accept the colourful language of Mr Tobin SC that the eye is a window to the mind. We are left in this proceeding with a very young man who, on the life tables, will have over 60 years in front of him, and will have lifelong blurred vision.
27What can be said with absolute certainty is that it is not going to get better. The uncertainty is at what speed will it progress, if at all, to a need for surgery either for the cataract or the glaucoma.
28In my view, the blurred vision and difficulty with fine tasks for a very young person, combined with difficulty working outside, which, to me, seems to be part and parcel of much of the work of a carpenter, particularly someone involved in domestic building and the like, requiring him to be conscious of his dilated pupil, to be diligent with wearing sunglasses, and to protect the eye as best as is possible, given his vocation, in combination with the increased risk of surgery is such that, in my view, the plaintiff has made out a 'very considerable' consequence.
29Perhaps almost by way of postscript I should say this, and I have said it in other cases: there are some impairments and impairment consequences that are clearly serious and some that are clearly not in the consideration of those that come before the courts and those that do not. There are other impairment and impairment consequences that perhaps fall somewhere more in the middle or are more finely balanced.
30At first blush when I began reading the material and before hearing from counsel I thought this might be the sort of application that fell somewhere in the middle and was finely balanced. But having seen the dilatation to the plaintiff's eye in the flesh, as it were, in the witness box, I was struck by the size of it, which reinforced to me the fact that the plaintiff is a very young man with damage to the eye and blurred vision.
31One is almost left to ask oneself, 'How would I like it?' and the answer is 'I would not like it at all,' but that is not the legal test. But what it does is reinforce to me that at a very young age the plaintiff has a “very considerable” consequence by way of permanent damage to the vision in the eye.
32Therefore, for the reasons expressed, I am satisfied that the plaintiff has made out a 'very considerable' consequence. Leave shall be given to the plaintiff to commence a common law proceeding for pain and suffering damages in respect to injury at work suffered on 30 June 2021, and I will hear to the parties as to consequential orders.
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