A REAL EYE-OPENER: Thomas Vogel v Shecky Pty Ltd [2016] VCC 1600

By: Sach Fernando

EyeOpener

Background:

The Plaintiff was a 47 year old German born man who lived with his wife and two young children. He was employed with the Defendant in 2005 as a crowd controller, working 11 hours per week on a part time basis. In addition to this work, the Plaintiff also worked as an amateur film maker and had produced a number of short films screened in Australia and International film festivals. The Plaintiff also had been involved in films both as an actor and editor, had organised a film festival which ran for several years, and organised a monthly short film night where directors of short films attended and exhibited their work. His work in the film industry was, for a large part, unpaid. It was his passion.  

Incident:

On 8 September 2012 The Plaintiff was struck over the head with a glass bottle by a patron whilst attempting to diffuse a fight at the Night Cat – a live music venue in Fitzroy. As a result, he suffered fractures to his face and skull. The assault caused a depressed fracture to the supraorbital area of the Plaintiff’s head, above his left eye. He subsequently suffered nasal obstruction, resulting in sleep apnoea.

Treatment:

The Plaintiff was treated initially at St Vincent’s hospital and the Royal Victorian Eye and Ear hospital for a blowout fracture of the left orbit. On 26 September 2016 he underwent surgery at St Vincent’s. Two plates and 11 screws were inserted into his face to repair the fracture around his left eye. He underwent further surgery on 8 May 2013 to have the metal wear removed.

Despite the surgery and treatment, the Plaintiff continues to experience pain in his left eye, for which he is taking Lyrica (two tablets every day), and consults his GP and Neurologist. He also suffers from sleep apnoea, for which he had seen a Sleep and Respiratory Physician and has been advised to wear a CPAP mask at night.

The Proceedings:

This proceeding pertained to the rejection of the Plaintiff’s Serious Injury Application, seeking to recover damages for his pain and suffering.

The Plaintiff claimed two serious injuries arising from the assault:

  1. In relation to the supraorbital fracture, he claimed it has impaired the functioning of his left eye, or in the alternative, the functioning of the structure of the left eye area, or the nervous system surrounding the eye; and
  2. In relation to the nasal obstruction, he claims it has impaired the functioning of his respiratory system.

The Issue:

Whether the consequences and impairment to the Plaintiff’s left eyeand/or his respiratory function, were at least very considerable.

The Test:

The Plaintiff had to satisfy to the court that he suffered a compensable injury in the assault to the left eye (supraorbital fracture) and/or the respiratory system (nasal obstruction), which resulted in a permanent impairment of a body function, the consequence of which were at least very considerable. The two injuries had to be assessed separately as it is impermissible to aggregate the two in order to establish a serious injury.

The test is subjective and the effects of the injury on Plaintiff had to be considered. However, in considering the seriousness of the injury, the Court has to determine the test objectively.

Medical Evidence

The Defendant sought to argue that the Plaintiff didn’t suffer a serious injury to the left eye because his vision had not been impacted, and this is the primary function of the eye.

The Plaintiff argued that, in considering the functioning of the eye, the Court had to consider the structures which surround the eye and support its functions. This included the eyelids and nervous system. The Plaintiff suffered from nerve pain, and had symptoms associated with twitching and redness, for which he was treated by Neurologist, Dr Poon, who had prescribed him Lyrica.

The Defendant sought to rely on a desktop report of Mr Millar (Otolaryngologist) to argue that there was no causal link between the assault and Plaintiff’s nasal septal deviation. Mr Millar concluded that Plaintiff’s snoring tendency and sleep apnoea was due to significant anatomical reasons including his weight and large tonsils. However, he failed to take into account several considerations detailed in paragraph 63 of Her Honour’s judgment.

The Plaintiff relied on Dr Chazan (Respiratory & Sleep Disorder Physician) who, after conducting an examination, concluded that there was a causal link between the assault and Plaintiff’s nasal obstruction and snoring.

Pain and Suffering Consequences of the Left Eye

  1. Constant tingling, pain and numbness in the area above his left eyebrow, towards his scalp;
  2. Constant pain just below his left eye, which is tender to touch;
  3. At least once or twice a week he would have ‘ice-cream’ headaches which come on unpredictably and requires him to lie down, with the lights out for a period of time;
  4. Left eye looks droopy and feels like it doesn’t sit properly in the eye socket;
  5. Left eye tires easily, especially after reading or looking at a computer screen for longer than 30mins. This causes interferences in his studies, and will restrict him in the future when editing short films;
  6. Tiredness causes twitching in his left eye, causing him to retire from social functions early, and can be problematic for driving. If his eye is twitching, he would opt not to drive; and
  7. Painful redness in his left eye after swimming in a salt water pool, which interfered with his ability to enjoy holidays with his children.

Pain and Suffering Consequences of the Respiratory function:

  1. Use of a CPAP machine on a nightly basis;
  2. CPAP mask can be uncomfortable;
  3. CPAP machine is long term and nothing further can be done for him; and
  4. Due to the machine’s noise, the Plaintiff’s wife had to sleep in a separate room.

Judgment of Her Honour Judge Tsalamandris

The Plaintiff established that both, his left eye impairment and injury to the respiratory system were caused by the assault on 8 September 2012.

Consequences arising from the impairment to his left eye, including the structures which surround it and support its functioning, and respiratory function, when judged separately, and by comparison with other cases in the range of possible impairments or losses, were found to be very considerable.

The requirement to be attached to a CPAP machine was found to be a very significant consequence, and described by Her Honour as both, ‘cumbersome and inconvenient’ given sleep is a fundamental aspect of daily living. The use of the machine also had a considerable consequence to the Plaintiff’s marriage, requiring him to sleep in a separate room and thereby depriving him of intimacy and companionship.

Sach Fernando Upper Portrait

Sach Fernando, Principal and Accredited Specialist in Personal Injury Law

PH: 1800 85 30 85

E: [email protected]

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