Cheel v O'Connell No. DCCIV-98-1142

CHEEL v O’CONNELL
[2000] SADC 91

Judge Allan
Civil

This matter comes on for assessment of damages, the defendant not having filed a defence and an order having been made that the plaintiff recover from the defendant damages to be assessed.
On 5 May 1992, the plaintiff sustained injury when he fell across a trampoline at the defendants house at Melrose Park at night. At the time of the fall, the plaintiff was carrying glass bottles in his right hand. In the fall, he sustained severe lacerations to his right forearm.
Immediately after the accident, the plaintiff was taken to the Flinders Medical Centre where, on 6 May 1992, he underwent surgery for the repair of the injuries sustained by him. He suffered tendon, vascular and nerve injuries as a result of the laceration. He was discharged from hospital on 11 May 1992. Since that time, as I understand it, his treatment has consisted largely of rest and medication. No further treatment is recommended.
As a result of the injuries sustained by him, the plaintiff has a 9cm oblique scar in his lower forearm extending down from the radial side, passing downwards medially to around the medial side of his right wrist. He has another scar, 3.2 cm long, extending down from approximately the middle of the first scar, level with the middle of his forearm to the wrist crease. He has diminished sensation below the scar of his forearm and medial half of the palm of his hand and medial two fingers, and also some loss of sensation, although to a lesser extent, in the medial aspect of his middle finger. He is hypersensitive to light pressure over the palm of his hand and below the scar.
The plaintiff has limitation in movements of his right wrist. He has flexion to about 40 degrees compared with 75 degrees for his left wrist and extension to 25 degrees compared with 65 degrees with his left wrist. The plaintiff also has limitation in movement in some of his fingers. So far as his right thumb is concerned, he has slight restriction in full flexion, although other movements are satisfactory. He has full extension of his right index finger, but with flexion he can only achieve approximately half the expected normal range. In his right, middle finger, he has one-third of normal flexion. He has little flexion in his right, ring and little fingers and his little finger remains in an abducted position at rest.
The plaintiff is not able to make a full right hand grip. He can achieve only about half an open-handed grip. He is able to make a pincer grip with his index finger against his thumb and, for a very short period, can do so with his thumb and middle finger; but he is not able to maintain the latter position. He is only able to achieve a grip with his thumb, index and middle finger. He has wasting of the intrinsic muscles of his right hand compared with his left. In the lower palm of his hand, he has a lump which tracks up and down with finger movements and which is extremely tender to touch.
The plaintiff, who is right-handed, has a significant residual loss of function of his right hand and lower forearm. The position has not changed for some years and there is no likelihood that it will change for the better in the future. He has very limited functioning ability with his hand and there are many functions that he either cannot do or that he can do only with very limited ability and then with aggravating pain in his lower forearm. So far as his right hand grip is concerned, in terms of size, he is able to pick up objects like a tennis ball or golf ball, but if the objects are much smaller he has considerable difficulties. These grips are only applied to light objects and he has no appreciable strength to hold onto anything. In trying to grip objects and use his right hand for the purposes of opening door handles or using door knobs, for example, he suffers pain in the front of his lower forearm.
As a result of the injury, the plaintiff does not now drive a vehicle. Prior to the accident he played guitar, but is now unable to do so. He has difficulty washing his hair and body with his right hand. He is able to hold a toothbrush in his right hand, but only weakly and has no strength to repeatedly brush his teeth. The same applies when he is shaving. He is able to write, but has poor control. It takes him a long time to write anything. He is ineffective when it comes to holding utensils in his right hand. In attempting to perform functions with his right hand, he frequently experiences pain. His right hand will cramp sometimes and go into acute flexion. This occurs at varying intervals, sometimes 3 to 4 times a day and at other times, once a week. The sensation lasts for about 4 minutes and is very painful.
The plaintiff’s injury and the disabilities which flow from it have led to him being depressed; not an unnatural thing in the circumstances: his capacity to work and to enjoy the amenities of life has been severely diminished. He has been treated for depression by way of medication. He is not currently taking medication specifically prescribed for his depression, but he takes Valium and Panadine Forte for relief from the symptoms he experiences in his hand and this provides him with relief from his symptoms of depression.
The plaintiff was born on 1 June 1956. He reached Year 10 standard at school. After leaving school, he took on an apprenticeship as a printer and, eventually, after 4 years, became a qualified printer. He did not like printing work and, so, obtained work in the construction industry. He commenced such work at the age of 20; and, from that time until the time of the accident, he worked as a labourer, truck driver and trades assistant. His last work before the injury was with a construction company. The company went into liquidation about the end of March 1992. He has not worked since the accident. He has been in receipt of a pension since that time, currently being in receipt of a disability support pension.
The plaintiff has Hepatitis C. He contracted it when he was about 21. He does not receive any treatment for it, although he sees his medical practitioner every 3 months for blood tests. From time to time, he feels lethargic as a result of his condition. This occurs about once every 3 or 4 weeks and lasts for between 2 hours to 1 day.
In 1991, the plaintiff sustained an injury to his knee during the course of his employment. He had some time off work as a result of the injury, but, as a result of that injury, does not have any permanent disability.
The plaintiff’s taxable income for the years ending 30 June 1988, 1989, 1990 and 1991 was $15,630, $21,390, $19,923 and $22,524 respectively.
As I have said, the plaintiff’s injury was a severe one. His capacity to work has been severely restricted: he has much less labour to sell now than he had prior to the accident.
In assessing the plaintiff’s damages for past economic loss, I will take into account that, for whatever reason, not associated with the injury sustained by him in the accident, he would not have been in permanent employment from the date of the injury to the present. In assessing his damages for future economic loss, I think it likely that he would have worked till he was aged about 60, but that, for whatever reason, apart from the injury sustained by him in the subject accident, he might not have worked until that time and that there might have been periods of unemployment during that period.
The amount sought by the plaintiff for special damages is the cost of attendances on his medical practitioner between 19 May 1992 and 12 May 1999. The total cost of such attendances is $641.69
I shall allow a lump sum for interest in respect of the general damages and past economic loss.
Doing the best I can on the material before me, I assess the plaintiff’s damages as follows:
Damages for non-economic loss  $    60,000.00
         Damages for past economic loss  $ 105,000.00
         Damages for future economic loss  $ 225,000.00
         Special damages  $         641.69
         Interest  $      8,000.00

Total $ 398,641.69

There will be judgment for the plaintiff in the sum of $398,641.69.
The defendant shall pay the plaintiff’s costs.

[2000] SADC 91

19 July 2000