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Victorian Supreme Court rules on negligence of surgeon and assesses damages

  • 15 June 2020 15 June 2020
  • Insurance & Reinsurance

A recent decision of Judicial Registrar Clayton of the Supreme Court of Victoria provides guidance on the assessment of damages for personal injuries arising out of the negligence of a surgeon, in particular, the assessment of general damages for pain and suffering and damages for future economic loss in circumstances where a plaintiff has returned to employment and cannot show a current loss of earning capacity.

Victorian Supreme Court rules on negligence of surgeon and assesses damages

The plaintiff, Casey Vlaming, alleged he suffered injury as a result of surgery negligently performed by a surgeon, Dr von Marburg on 21 February 2008, known as a revision mastoidectomy.

Since 2005, Vlaming had suffered from right earache and other ear complications and had been under the care of various treating doctors until he was diagnosed with cholesteatoma in or about July 2005. Cholesteatoma is a benign tumour that typically requires surgical removal. He had surgery performed by Dr von Marburg on 22 July 2005.

Cholesteatoma can reoccur and in Vlaming's case it did following his first surgery. He had two further surgeries including the final surgery on 21 February 2008, all performed by Dr von Margurg.

Following the surgery, Vlaming suffered from facial nerve paralysis and deafness in the right ear amongst other complications. These injuries were not expected outcomes for this surgery.  Dr von Marburg's operation notes did not any record any difficulties with the procedure or possible damage to the structures of the ear which might explain Vlaming's injuries.

Dr von Marburg did not defend the proceeding so the claim proceeded as an assessment of damages. However, Judicial Registrar Clayton did consider two expert reports provide by Vlaming in regard to the cause of his injuries and the negligence of Dr von Marburg. Both Associate Professor Robert Briggs, specialist in otolaryngology (ear, nose and throat), and Mr Robert Webb, an otolaryngologist considered that Dr von Marburg has failed to exercise reasonable care in the performance of the surgery and the surgery was not performed to a standard widely accepted in Australia by peer professional opinion as competent professional practice.

Based on this expert evidence, Judicial Registrar Clayton found that Vlaming's injuries arose out of damage to the semi-circular canal and the facial nerve, or avulsion of the stapes (a stirrup shaped bone in the middle ear)  and damage to the facial nerve during the relevant surgery.  Vlaming's underlying condition of cholesteatoma had not caused the injuries. She found that Dr von Marburg had breached the duty of care he owed to Vlaming by not performing the surgery in a competent manner. Fundamentally, surgeons are trained to avoid damaging important structures to the ear, and it was concluded this had occurred.

In the years leading up to the surgery, Vlaming had worked in the construction industry as a site foreman, but he had worked in a variety of different positions beforehand. He had some 8 weeks off work following surgery and returned part time for another 10 weeks and then returned to full-time employment, although he required some additional time off at different times. He was otherwise fully employed.

Vlaming's injuries had a profound effect on his personal life, his recreational pursuits and his long-term employment prospects. His hearing difficulties made it difficult for him to socialise. He was embarrassed by his facial palsy. His ability to pursue recreational interests he previously enjoyed, such as attending live music events and the football were now constrained. He enjoyed water sports, swimming and water skiing on the Murray River but he avoided these activities. He experienced the social embarrassment of people thinking, because of the way he moved, his difficulties with balance and his palsy, that he was drunk. A psychiatrist, Dr Epstein, assessed him as suffering from post-traumatic stress syndrome and recommended relevant psychiatric counselling.

Judicial Registrar Clayton undertook a review of recent awards for general damages made by the court and found that an award of AUD280,000 for general damages and pain and suffering was appropriate.

In regard to his claim for future economic loss, after his return to work he continued to work in the construction industry for the same employer, but the court accepted that he was restricted in embarking upon many of the roles commonly available in the construction industry, such as a crane operator. Vlaming argued that whilst he remained fully employed, it was highly likely he will lose income at substantial rates in the future due to his injuries. He claimed a "buffer" for that anticipated future loss of earnings based on the well-known principle enunciated in Victorian Stevedoring v Farlow [1963] VR 594.

Judicial Registrar Clayton reviewed a number of recent decisions to guide her in arriving at an appropriate award of damages on a Farlow basis both in the County Court and Supreme Court. Those damages awards ranged between AUD30,000 to AUD150,000.

Whilst she found that there was no evidence as to the likelihood that Vlaming would confront unemployment in the future, Judicial Registrar Clayton nevertheless did accept that if his employment was terminated by his current employer, he would face additional hurdles to employment by reason of his injuries. For example, he would be precluded from certain roles that required him to work at height or crane operations. He would be precluded from any role that required good hearing or bilateral hearing, and some roles would pose an additional risk to the function of his eye, including work in unduly dusty conditions.

Having weighed all these factors, the court awarded Vlaming AUD100,000 for future economic loss on a Farlow basis. The total award of damages, excluding costs, was AUD449,233.  

In conclusion, the court has made an award for general damages and future economic loss that in our opinion were at the higher end of the spectrum of damages we commonly observe in litigated claims.

The award for general damages is understandable having regard to both the physical injuries Vlaming suffered together with his psychiatric response. The award for future economic loss shows the courts are willing to be generous when applying the principles in Farlow, notwithstanding the absence of evidence that a plaintiff has suffered, or will suffer, an actual economic loss now or in to the future.

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