Common Law Damages Update

Maxiom’s Shane Don and Sach Fernando recently obtained an award of $190,000 on a Pain and Suffering basis for a young man who sustained a partial amputation at the tip of his index finger. The facts of this case are outlined below.

The Plaintiff was a 33-year-old man who was employed as a Mechanical Trades Assistant. In around 2015, he commenced an apprenticeship with his employer, which involved taking classes at a TAFE.

In August 2018, whilst in a class, the Plaintiff was operating a lathe. A chunk key fell from the top of the machine over the vicinity of the turning chunk, causing the Plaintiff to instinctively attempt to catch the chunk key so that it would not strike the lathe. Consequently, the Plaintiff’s right index finger struck the turning chunk, resulting in a partial amputation.

The Plaintiff underwent a right index finger terminalisation and full thickness skin graft (FTSG) procedure. This procedure left him with a permanent surgical scar on his right wrist. He underwent a further Full Thickness Skin Graft and debridement surgery on his finger.

Despite the two surgeries and intensive hand therapy, the Plaintiff continues to experience chronic and neuropathic pain in his right index finger.

The Application
The Plaintiff made an application for a Serious Injury Certificate and was granted same for Pain and Suffering only.

He had had however returned to gainful employment, and as such would not succeed in a claim for economic loss.

Pain and Suffering Consequences:
The Plaintiff was right hand dominant. His consequences are summarised as follows:

  1. The right index finger is shorter and mangled. The Plaintiff’s evidence was that he felt repulsed looking at it.
  2. Every time the Plaintiff uses his right hand, he experiences pain and numbness.
  3. When the temperature is below 17 degrees, he experiences intense pain which feels like an ache or throb and shoots around his whole right hand.
  4. Difficulty doing simple tasks such as buttoning up a shirt, clearing his nose and wiping his backside after having gone to the toilet.
  5. The Plaintiff had to re-learn how to write because he can no longer grip a pen with his index finger.
  6. He has effectively been ruled out of most physical work and working outdoors.
  7. One of his greatest passions was Australian Rules Football (AFL) and he was a semi- professional umpire. As AFL is a winter sport that exacerbates the finger pain, his umpiring aspirations have been totally annihilated.
  8. Anxiety over the use of lathe.

At the time his Serious Injury Application was made, the Plaintiff was having minimal treatment, limited to some hand therapy, and taking pain medication.

The case against the TAFE was primarily that they failed to ensure the lathe had an operating safety guard over the location of the chunk. In addition, we submitted that the TAFE failed to provide:

  1. Provide the Plaintiff with any adequate training, supervision and assistance.
  2. Conduct any or any adequate assessment of the dangers and risks posed to persons learning
    at the premises.
  3. Ensure the lathe had an operating safety guard over the location of the chunk.
  4. Direct the Plaintiff to remove any tools, equipment or hazards from above the lathe before
    operating the lathe.
  5. Provide a safe place of learning.
    DAMAGES: The Plaintiff was awarded $190,000 on a pain and suffering basis only.