Zeng v Zeng

The accident 12Work on the floor in the defendant's home began on 3 July 2007. The defendant tried to cut some wood but did not have the right machinery. 13The next day the plaintiff arrived with a new electric saw. He had purchased it on the way to Padstow. Its full name is a Ryobi 2000 watt 254mm slide compound mitre saw with laser (Exhibit C). The plaintiff had previously used machines of a similar type. 14Once the plaintiff arrived he and the defendant took the box containing the saw into the house and placed it on the floor. The saw was unpacked and also placed on the floor. 15The packaging was put back into the box. The plaintiff and the defendant sat together as the plaintiff studied the manual (Exhibit B) and then commenced to check various parts of the machine. The plaintiff's lack of English meant his examination of the manual was essentially restricted to the drawings. 16Thus far there is little difference in the versions of the parties. 17The versions then differ in particular as to what was said. According to the plaintiff it was intended that the source of electricity would be from a separate room so that an extension cord was necessary. The plaintiff says he told his son to get an extension cord ready. 18The plaintiff was closely cross-examined about what he said to his son. The suggestion that was put to him was that, in effect, he had directed his son to connect the machine to electrical power. The closest the plaintiff came to making a concession was that he agreed that he might have said: "Get the power cord ready" . 19The defendant, in his oral evidence, said that the plaintiff had told him to "get the power" . This answer prompted an application by the defendant's counsel under Section 38 of the Evidence Act. I allowed a degree of cross-examination, which included questions concerning an earlier statement. Although the defendant agreed that he had made an earlier written statement to an investigator and said certain things to his lawyers during the day, neither the statement nor a version of what he said came into evidence. 20It was clear, as suggested in paragraph 3(b) of the Defence, that counsel for the defendant was trying to elicit an answer from the defendant which described the plaintiff telling the defendant to plug in and turn on the power. 21Whatever the plaintiff said, he continued to check the machine. In doing so his right hand was depressing the trigger to activate the saw, his right thumb was holding the guard open and the plaintiff was using his left hand to check the fitting of the blade. 22While the plaintiff was so occupied, the defendant stood up, took the plug attached to the saw and inserted it into a nearby electrical socket. This plug is joined to the machine by a two metre cord (see Exhibit C). The electrical socket was obviously in the 'On' position, because as soon as the plug was inserted the saw started to work and the plaintiff's left hand was injured. 23The defendant agreed that the socket was one with an On/Off switch and it was possible to see in which position the switch was placed. However, he said that on the day of the accident, because the house was new (to him), he did not know that the power was on. 24The defendant said that when he had stood up to carry out his father's instruction, he saw that his father's right hand was on the handle and his left hand was on or near the blade. He agreed that he knew that if the machine started there was a risk of injury. He also knew that the machine needed electricity to operate and the electricity needed to be turned on. He agreed that he did not check to see if the power was turned on or off at the socket. He maintained his position that he did not know it was on because he was unfamiliar with the switches in his new house. 25According to the plaintiff, after his son stood up he continued to check the machine and moments later it began to operate, causing the injury. 26I think this is an appropriate point to note the flowing agreed fact: If the plaintiff was depressing the trigger with his right hand and holding the guard with his right thumb then, if electricity was provided to the machine, it would operate. I was also told, consistently with the agreed fact, that the 'On/Off' button on the machine was not relevant to the operation of the blade. (The button's use was associated with a laser function). 27As I have said above I find it impossible to reach any conclusion about precisely what was said, or meant, by the plaintiff to the defendant. I think, however, that I can comfortably make the following findings: (a)After the machine was unpacked the plaintiff and the defendant were sitting alongside each other while the plaintiff carried out an inspection of the machine. (b)The plaintiff gave the defendant an instruction that concerned the connection of power to the machine. I cannot conclude that the direction included the plugging in of the cord attached to the machine or the turning on of electricity. (c)The plaintiff was unaware of the location of a socket near his position. He anticipated an extension cord would be necessary. (d)The defendant stood up intending to meet the request of the plaintiff. (e)The defendant noticed an electrical socket near the plaintiff's position. It must have been within two metres because this was the length of the cord that was attached to the machine. (f)The defendant inserted the plug into the socket. (g)The socket was 'On' so that electricity immediately flowed to the machine. (h)The defendant did not check the switch on the socket before inserting the plug. (i)When the machine was activated the plaintiff's right hand was depressing the trigger and the guard was being held open by his right thumb. At the same time his left hand was on the blade. (j)The activation of the saw caused the plaintiff's left hand to be injured.

After the accident 28The plaintiff was taken by ambulance to Liverpool Hospital. His hand needed an operation which included the amputation of part of his left index finger (Exhibit D). There was a laceration to his middle finger and also across his palm. 29The plaintiff was discharged two days later. He returned home. He says that he was unable to return to his domestic or employment activities. 30Although the plaintiff initially said it may have been up to two years before he returned to work it seems clear that he was back to work, if only on a part-time basis, after about seven months. The plaintiff said that he is unable to work as a tiler because he cannot perform various " technical " actions requiring full use of his left hand. This evidence was contradicted in cross-examination where it emerged that he, or at least his company, has been engaged in a good deal of tiling work in recent years. The plaintiff's general answer to the questions put about this work was that he would often subcontract parts of the job that he could not manage. 31The plaintiff said that he had a good deal of restriction and pain in his hand but there was substantial improvement after he consulted a hand therapist and was also given various exercises. 32The plaintiff said his current position was that he had some numbness at the end of his index finger. There was some pain across his palm and also in his middle finger. He said that his use of the hand was becoming "better and better" . He did not take any painkillers but said he did take tablets when he felt "disturbed inside" . No evidence describing these tablets was given. The plaintiff said that he was scared to operate machinery. I gathered that a number of his restrictions were imposed as much, if not more, by this fear as by any inability to use his left hand. 33The plaintiff said he no longer mowed the lawn and if he could afford it, he would have the work done for him. He also said that he could not clean the bathrooms and he had developed a habit of not doing the washing up. 34The plaintiff was challenged on his time estimates of various activities. It was generally put to him that he had exaggerated his disabilities and needs arising from the accident. 35My initial observation of the plaintiff was that he was a straightforward person with a frank injury, which had produced a degree of disability. As cross-examination progressed this impression changed to the extent that I thought he was perhaps more sophisticated than I had initially thought and that I should exercise caution in accepting his assertions of disability, in particular concerning his capacity to work.

Medical reports 36The plaintiff's medical reports, with the exception of Dr Clark, are out of date. Dr Clark is a psychiatrist so his opinion does not go to the physical nature and effects of the plaintiff's injury. 37After Dr Clark the next most recent report is that of Dr Honner. He is an orthopaedic surgeon specialising in hand and upper limb injuries. He saw the plaintiff in August 2008. Dr Honner placed significant restrictions on the plaintiff's capacity to work. While they all seem reasonable at the time, the difficulty I have is that the plaintiff said that he had substantially improved since seeing Dr Honner so that the doctor's opinion must be accordingly qualified. 38In addition, in relation to domestic assistance, Dr Honner said that the plaintiff would have required such assistance for three months but not thereafter. As the plaintiff's domestic activities were, like his employment, of a physical nature, I find some inconsistency in Dr Honner's opinion. What I do accept from Dr Honner is that the plaintiff gave him a history, through an interpreter, of having returned to part-time work after about seven months. 39The Liverpool Hospital clinical notes give considerable detail about the plaintiff's stay in hospital and the treatment he was afforded. They do not, however, particularly assist with the plaintiff's current condition. There is a report from Dr Tan, a general practitioner, who says he first saw the plaintiff in August 2008, which is some time after the accident. This date seems to be an error because the plaintiff's last visit, of three, to Dr Tan was on 27 August 2007. I think it is probable that the plaintiff saw Dr Tan on three occasions in August 2007. 40Both parties relied on a report of Dr Sun, a rehabilitation specialist who saw the plaintiff on 18 August 2007. The defendant relied on the doctor because of this history recorded in the report: "He did not feel pain is an issue reporting only occasional pain lasting for seconds." I do not think this history is reliable, for the following reasons: (a)No interpreter was present at Dr Sun's consultation. Dr Sun, according to the plaintiff, is Vietnamese and the conversation between them was in broken English. The dangers associated with such a circumstance were well set out by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 (at paragraph 8) and Mason v Demasi [2009] NSWCA 227 (at paragraph 2). (b)Dr Sun's consultation took place about six weeks after the injury. I would find it very surprising if within such a short period an injury of this severity had resolved to a point where pain was so fleeting. 41There is no report from the hand therapist. Although there was no evidence of the plaintiff having consulted any other doctor, either for treatment or a medico-legal report, since 2008, I am not in a position to advance the medical diagnosis beyond that of Dr Honner, which as I have said above, has some shortcomings. 42The defendant's submission is that I can come to a firm conclusion about the plaintiff's current physical position because the report of Dr Smith, an orthopaedic surgeon, is recent. Unfortunately I also have some difficulties with Dr Smith's report. In particular Dr Smith concluded that the plaintiff "is manufacturing physical signs" . He also thought "the weakness he exhibits is manufactured" . Dr Smith could find no reason for the plaintiff to have any weakness. There was no wasting and no problem in the plaintiff's wrist or elbow. Despite these comments Dr Smith also wrote: "He would appear to me to have done reasonably well with the treatment provided. I would have thought he has recovered and will not improve any further and has quite a good functional result in many ways." (Exhibit 2, page 4 of Dr Smith's report). 43Dr Smith thought the plaintiff could have resumed his "normal work" after about six months. Having regard to the plaintiff's work being of a manual nature including use of both hands I find this opinion difficult to accept. I would understand the plaintiff gradually developing an ability to work without the whole of his left index finger but I would have thought this would have been a more gradual process. It is, in fact, a process supported by the plaintiff's own evidence that his capacity was becoming "better and better" . I find Dr Smith's opinion somewhat rigid, perhaps induced by his belief that the plaintiff was manufacturing symptoms. 44In relation to the plaintiff's alleged psychological state the opinions of Drs Akkerman (for the defendant) and Clark (for the plaintiff) are very different. The doctors saw the plaintiff within a week of each other. One might have expected a similarity of opinion from experts in the same specialty. Despite this Dr Clark reaches a diagnosis of "post traumatic stress disorder with ensuing dysthymic disorder" . Dr Clark thought the plaintiff required treatment including consulting a psychiatrist and the prescription of antidepressant medication. Dr Akkerman found very little of concern from a psychological point of view and could see no need for treatment. 45Although, like Dr Smith, I find Dr Akkerman's views somewhat stark I do think they are perhaps closer to the correct assessment. I say this because the history taken by Dr Akkerman is much closer to that which the plaintiff gave in his oral evidence. He did not describe the psychological upset recorded by Dr Clark. He did not say that his sleep was impaired, his temper bad or that he was depressed and upset. He did not say that he slept separately from his wife although he did say that the situation at home had been affected by the accident. 46I think the most I could find, from a psychological point of view, is that the plaintiff is upset as a result of the disability and deformity that he now has and that he is naturally fearful of machinery. I also accept that he is embarrassed by the appearance of his hand, which in turn has some effect on his social activities.

Liability 47The defendant conceded that he owed a duty of care to the plaintiff. However he said that the nature and extent of the duty were tempered by the following facts: (a)The plaintiff was the experienced person on the site. (b)The plaintiff was the defendant's father implying a degree of obedience. (c)The plaintiff, on his own admission, was the person giving the directions. 48I agree that the above factors need to be taken into account, but so too do the following: (a)The events took place at the defendant's home for the benefit of the defendant. (b)The defendant was a qualified gyprocker who had his own experience working with electrical, and dangerous, machinery. (c)The defendant's supposed subjugation to his father's wishes could not extend to blindly following any order regardless of the possible consequences. 49I think the starting point in respect of liability is Section 5B of the CLA. In my view the risk of harm was known to the defendant and foreseeable. The defendant accepted that he was aware of the dangers involved in the use of such machines. The risk was obviously not insignificant, bearing in mind it involved a blade turning at a high speed. 50In relation to precautions, the obvious precaution was to check that the power was not turned on before the plug was inserted into the socket. A secondary precaution was to check that the plaintiff's left hand was not near the blade as it had been a few moments earlier when the defendant stood up. These precautions are such that a reasonable person would have taken them. In coming to this decision I think each element listed in Section 5B(2), other than under subsection (d), is applicable. 51Bearing in mind the findings I made above (paragraph 27) I am of the view that the defendant was in breach of his duty of care in inserting the plug into the socket without regard to whether the electricity was flowing and for not being satisfied that there was no danger to the plaintiff if the machine was activated upon the insertion of the plug. It is to be recalled that the defendant was aware that only moments before the plaintiff had his hand in the area of the trigger and was, with his left hand, checking the blade area. 52I make these findings despite reaching no definite conclusion about what was said by the plaintiff to the defendant. My findings stem from the reasonable precautions that a person in the defendant's position would have taken in performing the act of inserting the plug into the electrical socket. 53I am therefore satisfied that the defendant was negligent and in breach of the duty of care that he owed to the plaintiff.

Contributory negligence 54The defendant submitted that if I found for the plaintiff, contributory negligence should be in the order of 50% to 75%. The plaintiff submitted that there was no contributory negligence, but if I was not of this opinion, that the finding should be about 25%. I think there was contributory negligence, for the following reasons: (a)The plaintiff was aware of the dangers associated with electricity being fed into the machine. (b)Whatever the precise instruction he gave to the defendant, the plaintiff knew it concerned electricity yet he added no warning to the defendant either to check that the electricity was not flowing or to give him notice that the electricity was about to flow. (c)The location of the cord on the machine was such that the plaintiff is likely to have seen the defendant at least picking up the cord when he stood up. (d)The plaintiff was in charge of the machine and should have ensured that his hands were clear of it, or at least the guard was lowered, until the defendant completed whatever task he had been assigned. 55In my view the defendant, who negligently put the plug into the socket when he knew his father was working on the machine, should bear the larger amount of blame. However I do not think the distinction in the respective amounts of blame is large. The plaintiff, an experienced tradesman, negligently kept his hand on or near the blade while the defendant was carrying out an instruction concerning the connection of electricity. 56I assess contributory negligence at 40%.

Causation 57The onus is always on the plaintiff to prove the facts relevant to causation (CLA, Section 5E). Section 5D imposes a 'but for' test. Applying the necessary standard I am satisfied that but for the defendant's negligence, as described above, the saw would not have been activated and the injury would not have occurred. In relation to contributory negligence I am satisfied that but for the plaintiff's negligence he would not have been injured.

Damages 58Learned counsel for the defendant described the quantum of damages as very small. He said that ultimately the plaintiff had lost the "tip" of a finger and the consequences were minimal. I disagree, although I do not think the damages should be assessed to the extent claimed by the plaintiff. 59The defendant submitted that non-economic loss should be assessed at 20% to 22% of a most extreme case (CLA, Section 16). The plaintiff submitted the appropriate range was 33% to 35%. 60It is true that the plaintiff has made a good recovery. However, he has lost more than the tip of his left index finger (Exhibit D) and he remains with an obvious deformity. This will not improve. He finds the deformity embarrassing and, if only to a limited extent, it affects his social activities. 61The plaintiff does not have a great deal of pain now, but still has some numbness and restriction in the use of his hand. He also has a natural fear of using machinery. 62On the basis of the above I think non-economic loss should be assessed at 28% of a most extreme case. This equates to $70,000 on the relevant table. 63Both parties agreed that the plaintiff was entitled to economic loss for the first seven months following the injury. The defendant submitted that this was the extent of economic loss, past and future. The plaintiff submitted that he should receive a further allowance for past economic loss on the basis of a lost earning capacity and that there should also be a similarly based allowance for the future. 64In respect of the first seven months the parties differed as to the weekly rate to be applied. Both parties used, as the source of their submission on the rate, the plaintiff's tax returns and in particular the schedule (Exhibit F). The difficulty with this schedule, and therefore with the parties' submissions, is that the net weekly income has included in its background calculation, losses flowing from the plaintiff's rental property. 65I think a safer approach is to look at the plaintiff's earnings as a tiler and the expenses associated with the business. On this basis the figures in the tax returns for 2006 and 2007 (at page 12 of each return) indicate a net weekly income for these years of $330 and $620 respectively. 66The total business income for 2007 is significantly higher than in previous years. No reason was given. I think it appropriate, for the purposes of the first seven months after the injury, that I should average the above two net weekly figures to form the base rate for the calculation. The average is $475. Taken over seven months (30 weeks) the loss is $14,250. 67I agree with the plaintiff's submission that he should receive a further sum for the balance of the period to date. The plaintiff's work as a tiler involved the use of both hands. Although he is right hand dominant the index finger is important, as he stated, in achieving fine results, in particular concerning levels. One can also readily imagine a need for pressure to be applied to tiles necessitating use of the whole hand. I do accept that the plaintiff's capacity has improved over time but one must take into the account the restrictions placed on his ability to work by Dr Honner in 2008. 68The plaintiff's earnings have fluctuated since the accident, as shown in Exhibit F. The expenses include amounts paid to subcontractors. This is consistent with the plaintiff's evidence that he has had to employ subcontractors because of his inability to do certain tasks. 69I think the plaintiff's claim of $10,000 over more than three years is appropriate and I allow it. Total past economic loss is therefore $24,250. 70The first step in examining future economic loss is, if appropriate, to make the findings required by Section 13 of the CLA. 71In my view, but for the accident, the plaintiff would have continued to work as a tiler, or in associated building activities, until he reached the age of 65. His earnings would have fluctuated, as they had in the past, and would not have been significant, probably following the same trends as prior to the accident. 72I am further satisfied that the nature of the plaintiff's employment, the absence of any other medical issues and his general lifestyle (to the extent described) would have rendered him susceptible to the 'normal' vicissitudes of 15%. 73The next issue is whether the plaintiff still has a diminished capacity and if it is likely to be productive of economic loss. This decision is adversely impacted, from the plaintiff's point of view, by the absence of an up to date report from Dr Honner or any other practitioner giving him support for an inability to do certain tasks. 74It is true that Dr Honner's 2008 observations are put on a long-term basis. They do not, however, take into account the plaintiff's evidence of his improvement or the level of his current complaints. Ultimately his evidence suggested that his fear of using machines, as opposed to any physical incapacity, was a major factor in his reluctance to do a number of tasks. I do, nevertheless, think that the absence of part of an index finger in work in which the use of one's hands is an integral part, does amount to a lack of capacity which will probably, from time to time, have an adverse, if only minor, economic impact. The plaintiff's submission for the future is $50,000. On my findings I think this amount is excessive. I think $25,000 is appropriate. 75Ultimately the plaintiff's claim for future care was restricted to one hour per week for lawnmowing services for the rest of his life. Although the rate of $35 per hour was agreed the defendant submitted that the plaintiff had not proved any case for paid future care. The defendant first submitted that there was no need for any care and secondly that any need was being met, and would continue to be met, gratuitously by the plaintiff's wife and other persons. In the latter regard the defendant relied on the decision of the NSW Court of Appeal in Miller v Galderisi [2009] NSWCA 353. 76Dealing first with the question of need. The plaintiff's counsel conceded that there was no physical reason that he could not push or operate a lawnmower. The problem was one of his mental reluctance to operate the lawnmower. A lawnmower has a blade, it is potentially dangerous and the plaintiff's injury was such that he had a natural fear of operating machines, in particular those containing spinning blades. The medical reports do not mention any such phobia. The plaintiff did, however, give a history of his fear in his oral evidence. There is an overwhelming logic to such a fear and I have no reason to reject the plaintiff's evidence. I must also take into account, however, that the onus is on the plaintiff to mitigate his damages and he has taken no steps, for example by desensitisation sessions with a psychologist, to overcome his fears. 77Turning to the defendant's second point, the lawnmowing is being done by the plaintiff's wife or his friend's children. The plaintiff's sons who live at home are too young to safely carry out lawnmowing. I think it unreasonable to expect that the children of the plaintiff's friends will continue to regularly mow his lawns. I also think it unreasonable that his wife, who appears to be solely carrying out all the domestic activity inside a large house, should be expected to continue to do the lawnmowing. 78I think the following is the appropriate way to deal with future care. The plaintiff should be awarded an amount to cover lawnmowing for one year as well as an allowance for future treatment to enable him to address his anxiety. 79Lawn mowing is not necessary on a weekly basis. Allowing for roughly fortnightly mowing for half the year and once a month for the balance, I allow 18 sessions of lawnmowing at $35 per session. This is $630. 80Past out of pocket expenses were agreed at $2,518.46. 81The plaintiff sought $500 for future medical expenses. The defendant submitted there should be no allowance. 82The plaintiff's justification for the $500 was to pay for occasional medication. It was conceded, however, that the past out of pocket expenses included no medication and there was no evidence of any current use of painkilling or antidepressant medication being taken. On this basis I would not allow any amount for medication. 83I have, however, in the reasons I have given for allowing one year of lawn mowing into the future, said that there should also be an allowance to enable the plaintiff to obtain treatment to overcome his fear of operating machines. There are no costings for such treatment although Dr Clark quotes a figure of $400 a session for psychiatric treatment. I do not know how many sessions would be required for desensitisation treatment. I think a fair approach is to allow the plaintiff's claim for $500 but to attribute it to psychological consultations. 84A summary of the damages I have allowed is as follows: Non-economic loss $70,000.00 Past economic loss $24,250.00 Future economic loss $25,000.00 Future care $630.00 Past medical expenses $2,518.46 Future medical expenses $500.00 Total $122,898.46

85Reducing the above total by 40% for the plaintiff's contributory negligence, the plaintiff is entitled to a verdict in the sum of $73,739.08. The defendant is to pay the plaintiff's costs of the proceedings. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 August 2011