RMAX PTY LTD v DA SILVA [1996] NSWCA 451

RMAX PTY LTD v DA SILVA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P, MEAGHER and POWELL JJA 19 April 1996, 29 November 1996 [1996] NSWCA 451

Workers Compensation — Assessment — Characterisation of "loss" — Appeal by employer Workers Compensation Act 1987, s65, s66.

Worker injures right hand necessitating amputation of middle finger — Consequences of amputation regarding efficient use of right hand — Characterisation of "loss" — Assessment of compensation based on relevant loss

Held: appeal dismissed.

There was no error, in fact or in law, in the judge's determination of the relevant loss for the purposes of the Workers Compensation Act 1987.

Department of Public Works v Morrow (1986) 5 NSWLR 166; applied.

ORDERS

Appeal dismissed with costs.

Mahoney P As Mr Wardell for the appellant has submitted, this appeal raises a minor but important issue which may affect the application of s66 of the Workers Compensation Act 1987 in a number of cases.

The basic facts are not significantly in dispute. On 27 August 1993 the respondent worker Mr Da Silva suffered an injury to his right (dominant) hand when it was jammed in a machine. He was taken to Fairfield Hospital and the treating orthopaedic specialist Dr Powell surgically effected the amputation of the middle finger and the distal interphalangeal joint, being the first joint of the finger.

The effect of the amputation extended beyond the mere amputation. The worker continued to experience sensitivity at the site of the amputation to a significant extent. He finds his grip is adversely affected, he has difficulty doing domestic tasks such as washing and ironing and he has problems manipulating small items in the course of his work. His grip is weak and he is unable to bring the injured finger into the palm of his hand. The learned judge accepted the worker's complaints of difficulty in gripping and difficulty in manipulating small items as the result of the amputation.