Guster v Papazaharias No. DCCIV-02-226

GUSTER v PAPAZAHARIAS
[2002] SADC 141
Judge Bishop

Civil

Mark Simon Guster (“the plaintiff”) claims damages against John Papazaharias (“the defendant”) for personal injury, loss and expense alleged to have resulted from the defendant’s negligent conduct in causing a shotgun to be discharged during a boating trip on the River Murray at Renmark on Saturday 28 February 1998. When the gun discharged, the plaintiff sustained serious injuries to his right hand. Liability having been admitted at trial, the action proceeded upon assessment of the plaintiff’s damages.
Before the accident
The plaintiff is now 26 years old. At the time of the accident he was 22 years old. For most of his life, he has resided in Renmark. He left secondary school at the end of 1993, after repeating year 12 in the hope of enhancing his job prospects. At school he engaged in sporting activities. He was a medium long and short distance runner and enjoyed playing A grade basketball, tennis, golf and football. With his right hand, he also played the guitar. During his last two years at school, he worked part-time in Foodland at Renmark. Upon leaving school, he did not really know what he wanted to do except that, to get “a decent job”, he would not be able to remain in Renmark. During 1994, he worked full-time for Foodland at Renmark, where he was assistant manager in the fruit and vegetable section. In 1995, he continued working for Foodland in that position at Frewville and Windsor Gardens in Adelaide. The work involved cutting, wrapping, stacking and lifting produce with his hands.
Practically, the plaintiff was virtually ambidextrous. There was not really one hand which he always used as a dominant hand. In his words,
“My left [hand] is the one that I write with. My right [hand] is the one that I generally do physical stuff with, but I can use both to a fair degree” (T22).
In sport, his right arm was stronger. He used that arm for holding a tennis racquet, a golf stick and lifting objects.
Towards the end of 1995, the plaintiff decided to leave Foodland, in the hope of finding a better job. He returned to Renmark and worked picking apricots, which was “a good way of earning a lot of money in a short period of time” (T23). In 1996, he returned to Adelaide and worked as a salesman with Cash Converters for about a month and as a cleaner with a cleaning company for about eight months. In 1997, through an employment agency, Forstaff, and a friend who was the personnel manager of the pharmaceutical manufacturing supplier, F.H. Faulding and Co. Pty. Ltd., he obtained work in the general produce department of Faulding, helping to make Neutragena soap. The work, which was strenuous, required the lifting and stacking of large cylindrical stainless steel containers. He was then successful in securing appointment to the contract position of Pharmaceutical Skilled Operator Level 3 within the Operations Division of Faulding’s Healthcare Manufacturing Department for six months from 4 July 1997 to 10 January 1998 at the weekly wage of $474.10 (vide letter of appointment dated 1 July 1997, exhibit P6).
Within Faulding, there were four levels of employment as a pharmaceutical skilled operator, namely, levels 3, 4, 5 and 6. After about five months, the plaintiff had progressed to level 4. When the accident occurred, although his contract had expired, he was being trained for level 5, while being paid as a casual of Forstaff at a higher rate of pay (“probably a couple of dollars an hour [higher]” T28) than was paid by Faulding. In his evidence (which I accept), Faulding had told him that,
“as soon as a position was made available, a full-time permanent position, not a contractual position, then the position would be mine” (T29).

The accident
On the weekend of the accident, the plaintiff returned to Renmark for the birthday celebration of a friend. On the Saturday, he and some mates decided to travel down the river in three boats. At a time when the boats were joined together, the shotgun was discharged, pellets passed through the side of the boat in which the plaintiff was seated and went into and through his right hand. During the time that it took to take him to the Renmark Hospital, he lost much blood, experienced considerable shock and pain, passed in and out of consciousness and thought that he would probably die from blood loss (T31). By air-ambulance he was then flown to the Royal Adelaide Hospital, arriving there about 12.30 a.m., about six hours after the accident occurred. When that night taken to the operating theatre, he had been told by a doctor that, “the two middle fingers would definitely have to come off and probably, high probability of the little finger having to come off as well” (T33).
The right hand injuries
In the first medical report (dated 30 July 1999) of Mr Richard Pope, the plaintiff’s operating orthopaedic surgeon, his principal injuries were related as being to right hand, wrist and forearm. There were multiple shotgun pellet entry sites. There were also entry points at the elbow and arm. There were major soft tissue and bony injuries to his right upper limb. There were fractures of the proximal bones of all four fingers, the four middle bones and one of the metacarpal shafts of the second and third fingers. He underwent three surgical procedures on 1, 2 and 4 March 1998. In the first procedure, exploration, assessment and initial debridement (excision of devitalised tissue) were performed. In the second procedure, further debridement and removal of shotgun pellets were effected, together with open reduction of some of the fractures of the bones of his fingers. In the third procedure, delayed primary closure of the right ring finger and inspection of wounds were carried out.
Having been admitted to hospital for five days, the plaintiff was discharged on 6 March 1998. He was readmitted on 9 March 1998 with increased swelling and pain in his right hand. After being readmitted for four days, he was discharged on 13 March 1998. He was again readmitted on 7 May 1998 for surgical removal of multiple K wires which had previously been inserted into his fingers and removal of multiple shotgun pellets. He was discharged the following day. On five occasions, he was seen regularly as an out-patient.
Mr Pope reviewed the plaintiff in April 2000 and then reported in his second report (in exhibit P1),
“[The plaintiff] is currently at university studying exercise and sports science. He is very motivated and involved in this course however is limited in his ability to carry out some of the activities. He has to use a hook on his right arm to allow him to lift up heavier weights. He is unable to participate in activities such as paddling, rowing, and kayaking due to his inability to grip effectively with his right hand. He experiences pain in the right hand principally in the metacarpophalangeal joint region with activities while studying and also involved in holiday work such as apricot picking.”

(My emphasis.)
Upon examination, the proximal interphalangeal (PIP) joints of all fingers were found to be non-functional. His distal interphalangeal (DIP) joints were mobile but with minimal movement due to tendon adhesions. Grip strength on the right side was 26 kilograms, compared to 66 on the left. Pinch grip strength was 6 kilograms on the right, compared to 10 on the left. Multiple shotgun pellets remained present. There was mild loss of middle finger metacarpophalangeal (MCP) joint space and loss of joint spaces were present involving the interphalangeal joints of all of the other fingers of the right hand. In Mr Pope’s assessment in April 2000, the plaintiff has a 65% permanent residual impairment of function of his right limb below the elbow “as a result of this extremely serious right upper limb injury”. On 23 August 2001, two shotgun pellets were removed from his thumb and the palm of his hand by surgical procedure (vide his third report of October 2001).
In his fourth (and last) report of 20 August 2002, Mr Pope wrote of having reviewed the plaintiff on 19 August 2002:
“He [the plaintiff] states he has noted an increasing ache in the [PIP] joint region of his ring and middle fingers. He has also noticed an ache in the volar aspect of his hand in the region of a scar contracture running down the volar aspect of the middle finger. This is tightest at the MCP joint region. He has noticed an increased ache in his hand in cold weather particularly when he goes to Renmark. He has noted increased crepitus in the right thumb region.

He is actually pushing his hand fairly hard and is keeping up body building activities 6 times a week. This is also increasing his hand pain.”
X-rays performed on 1 September 2002 revealed fibrous ankylosis (or tissue stiffening) of the PIP joints of the middle and ring fingers, with degenerative changes involving the MCP joints of the thumb and fingers. In Mr Pope’s opinion there expressed, the following five further surgical procedures are “likely” to be required:
1.   Z-plasty to effect scar contracture involving the middle finger.
2.   MCP joint arthrodesis (or fusion) of the right thumb.
3.   PIP joint arthrodesis of the PIP joints of the right middle and ring fingers.
4.   MCP joint (knuckle) replacements of the metacarpals of the right hand (3 fingers).
5.   Cosmetic osteectomy to improve the appearance particularly of the PIP joints of the middle and ring fingers.
The approximate cost of those procedures would be “in the order of $15,000”.
In oral evidence, Mr Pope referred to the scar which runs down the inner aspect of the plaintiff’s right forearm as being, “a surgical incision needed to remove pellets, remove damaged tissue, decompress the median nerve” (T164). Of the third likely surgical procedure, he explained that those PIP joints are already very stiff (with about ten degrees or even less of movement) and their immobility by fusion would eliminate associated pain. The fifth likely procedure would remove some of the bony lumps around the joints in the middle of the hand (T166). Mr Pope thought that the pain being experienced by the plaintiff is due to bony joint surfaces rubbing on bone, because of the loss of cartilage within the joints (T166). He also thought that the pain will gradually increase with time. (The deformities in the plaintiff’s hand, together with the remaining pellets, are well depicted in the X-rays (exhibit P8) which were taken on 9 September 2002 and which portray PIP joint destruction caused by the shotgun blast, narrowing of the PIP joints, deformity of the fingers and narrowing of the MCP joint, particularly of the middle finger (T167-168). Some of those deformities are also depicted in the photographs (exhibit P5) which were taken on 7 June 1999.)
In his assessment of the 65% permanent residual impairment of function of the plaintiff’s right limb below the elbow, Mr Pope was guided by an American Medical Association assessment of permanent impairment text, with reference to which the components were loss of joint movement, loss of joint function and loss of power or grip strength in the hand (T169-170). In cross-examination, the report dated 18 August 1999 (exhibit D2) of Mr Randall Sach, a “very experienced” (T180) plastic surgeon who was not called to give evidence, was put to Mr Pope. In his report, Mr Sach referred to “the very significant injury sustained” by the plaintiff, the “extensive scarring to the right hand” and the “quite restricted mobility” in a number of the joints (each digit he separately considered). Mr Sach agreed that the plaintiff, “has been left with a significant residual disability” which, he suggested, “represents a 35% loss of function of the right hand as a whole.” There were no X-rays available for him to inspect. In his opinion, the plaintiff’s disability,
“does significantly restrict him for a number of work and recreational pursuits. There is no doubt he will need to modify his activities in the future to accommodate his significant disability.”
Mr Sach thought that the prognosis was generally good and that there may be some further surgical procedures which could improve his function a small amount, any decisions about which should be left to his treating surgeon.
Of Mr Sach’s assessment, Mr Pope remarked that there was no reference to having measured grip (including pinch grip) strength which, as an objective component of function, accounted for 20% of Mr Pope’s impairment of function (T173, 175, 178). If confined to loss of hand function, Mr Pope said that he “would probably say 70% loss of hand as opposed to 65% loss of above that level” (T170). In his view, the plaintiff has suffered a major loss of 20% grip (and pinch grip) strength of his right hand (T173-174). Although subsequent body building has strengthened the plaintiff’s grip, Mr Pope observed that the ratio of grip strengths between hands remained very much the same (T176-178). He also thought that body building activities would increase his hand pain (T184) and accelerate the likelihood of the further surgical procedures (T187) which, he thought, will be necessary within the next ten years (T184), except for the fourth (knuckle replacement) procedure, which will be necessary beyond ten years, may only involve one or two joints (T187) and may cost “close to half” of the currently estimated total cost of $15,000 (T190).
Mr James Katsaros, a plastic surgeon, examined the plaintiff on 20 November 2000 and reported on 8 February 2001 (in exhibit P1). In his estimation, the residual disability in the right hand is 40%. He confirmed that grip strength was much reduced on the right side (30 kgms compared with 85 kgms). He referred to the rotational or “scissor” deformity in the index finger, the “unsightly” deformed middle finger with “complete mallet” deformity at the distal phalangeal joint, the flexion deformity in the ring and small fingers, the 25 cm scar extending from the mid-forearm distally to the third web space, the 10 cm scar on the dorsal aspect of the hand over the second and third metacarpals (which are visible in the photographs, exhibit P5) and “scissoring” between the ring and small fingers. Mr Katsaros also referred to the impairment of manipulative dexterity, in that the plaintiff has difficulty in grasping small objects and performing fine manipulative tasks such as lifting a hammer, an oar or holding ropes. He confirmed that the plaintiff is partially incapacitated for work and recreational pursuits. In his recommendation, some remaining pellets should be removed and the forearm scar revised, at a cost of approximately $2,500.
In his oral evidence for the plaintiff, Mr Katsaros said that the “quite profound” residual disability of the plaintiff’s right hand “could be higher” than the 40% which he had estimated:
“I think 65% is a bit high, certainly high, but up to 50% I think is most reasonable, according to my assessment” (T231).

(My emphasis.)
In cross-examination, he said that he was “not going to rigidly stick to 40% because it is very much a guesstimate and a deviation of 10% would be reasonable” (T233). Since November 2000, he had the opportunity to see the plaintiff again and thought that his 40%, “could be a bit low. If I could re-write the report again I think I would say 45%” (T234). Upon testing, in his determination the plaintiff’s main deficits were with motor function, manual dexterity, fine manipulative movements and joint function. In his view, the damage to the plaintiff’s hand really involved all of his digits and the palm of his hand:
“I think you can take into account the deficits in each digit in helping you to arrive at overall deficit rather than trying to do it as a whole... I commented on the function of each digit and the problems or the deficits that I noted in each digit so that helped me get a clearer picture of what this man’s deficits were… it’s more practical to assess function as a whole, quite frankly” (T237).

After the accident
Following his second release from hospital, the plaintiff returned to reside with his parents in Renmark. For the first few weeks, a nurse would visit, daily, and change his bandages. With only one hand, it was impossible for him to prepare and cut his food, shower and perform many other essential tasks, in which he was assisted by his parents. Although he believed, when giving evidence, that finger joints in his right hand had been operatively fused (T37, 44-45), as Mr Pope explained, that had not occurred (T186). The condition of his right hand and forearm, about six weeks after the accident, is depicted in the three photographs (exhibit P7) which he then took. When the K wires were removed in May 1998, he realised that he would not be able to resume work at Faulding.
Until about five months after the accident, the plaintiff was not able properly to use his hand. He received Commonwealth unemployment benefits for six months. Regularly he saw a physiotherapist in Renmark, who gave him exercises to perform. He had seen an occupational therapist at the Royal Adelaide Hospital, who supplied appliances to wear and assist in his rehabilitation. Those appliances he wore for about ten months.
As demonstrated in evidence (and depicted in exhibit P5), the plaintiff is only able to clench or tighten his right index finger about 50% or 90 degrees (T46). He is unable properly to clench his right hand (T51). He is reluctant to have his thumb-joint fused at present, because the pain is not that great and he feels that he has still at least a couple of years “decent movement” (T47). He is unable to spread his fingers and rest the palm of his hand on a flat surface (the palm remains elevated by about 2 cms) (T48). Of his scars, the one which is really painful is that around the knuckle of his index finger (near where the permanent K wire is located) when using that finger (T49). There is also mild pain at the top of his third finger (T49), associated with the scar in the palm of his hand and on the inside of his thumb (T49-50). When flexed, there is an indentation in the muscle of his forearm (T51).
In an effort to strengthen and improve the flexibility of his right hand, commendably the plaintiff went to a gymnasium and resumed the weight training, which he had commenced about eight months before moving to Adelaide. Initially, he had to strap to his wrists velcro-attached flat metal hooks, with which to grasp and lift the bar-bells. Now he endeavours only to use the hooks for exercises which require pulling-up, pulling-down or pulling-in movements. With his right hand, because he is unable to grip the bar, weight is supported by his wrist and, with the hook, he is able to lift about 220 pounds.
Five months after the accident, realising that his hand was not going to get any better, the plaintiff began looking for work. Six months after the accident he found employment strutting wire in wooden posts in a vineyard and (later) holding posts while they were pile-driven into the ground. After about three months that work became too hard on his right hand. For about two months, he then worked for a friend picking and (later) “stoning” wet apricots. When the season finished about March 1999, his skin had begun to crack and he was not able to put his right hand in water.
In March 1999, the plaintiff commenced studying full-time for the degree of Bachelor of Applied Science (Human Movement) at the University of South Australia in Adelaide. In his evidence,
“I’ve always been interested in sport. I was training pretty, reasonably hard, well pretty hard at the gym at that stage, I put on a fair bit of muscle and I thought that it would be a good way to explore, well hopefully my interest in sport and my enjoyment of the gym as a future way of getting employment. So I sat the mature age entrance exam in 1998 and I got into it…. In 1998, after… the lady from Faulding had suggested I go to university, I started looking at subjects that I was interested in and being that sport was the subject I was interested in I decided to do that one” (T61).

(My emphasis.)
After speaking to a guidance counsellor at Renmark High School, with his father, who was (and is) the deputy principal of Renmark Primary School, the plaintiff sat down, went through the available courses and chose that three year full-time degree course. His father was influential in that decision, his reasoning being that the plaintiff had been very interested in sport at high school and he wanted his son to study something that he would be interested in for the future (T149). Also, as the plaintiff frankly said in evidence,
“I wanted to better myself, I wanted to get out of just working in factories and I thought that the university degree would be a good way of doing it” (T71).

(My emphasis.)

From his academic record (Exhibit P9), it appears that the plaintiff performed well in his first year (1999), achieving two credits, seven passes and one failure. In 2000, he obtained one credit, four passes, one failure and one “no grade”. In 2001, he obtained two credits, one pass, two failures and withdrew from, or did not complete, four subjects. Those results meant that he had to repeat some of the third year subjects. In 2002 (as far as the record goes), he has (so far) obtained one distinction, one pass, one failure and has not obtained grades in four subjects. He is hopeful of completing the degree early next year (T67). His poor record in 2001 he attributed to personal problems, including the suicide of a friend, “a bit of a mental break down” and an operation to remove pellets from his hand (T67). When asked what he imagined were his career options, the plaintiff again directly replied,
“I really feel you have to use your own initiative to devise your own occupation. That’s why I’ve been thinking of throwing around ideas such as after school hours care with an activity based thing for children… Personal training, which is something I’m doing casually now, but really… it is not a real thing that I can make a real living out of, but that’s all I’ve got at the moment” (T72).
Upon graduation, he presently does not intend to undertake post-graduate study, which is a pre-requisite for many occupations. In his words, “you just have to look at my academic record. I pretty much just want to finish uni and get on with my life” (T72).
For about three months, the plaintiff has been earning extra cash by personally training a few clients of a friend, who is a personal trainer. That is understandable, because he has successfully persisted with his weight lifting and body building. Recently he won the title of Mr Athletic South Australia and then Mr Athletic Australia in the National Body Building Championships. The two photographs tendered (exhibit P10) vouch for his success in that venture. Next year he intends to pursue body building and again compete in the titles, notwithstanding the resulting pain in his hand. He said that, if he is able to win a World title, “through some shameless promotion I’ll publicize myself as much as I can” to market a business (T76). (Interestingly, his resumption of training, about 18 months ago (T77), seems to have coincided with the deterioration in his university results.) When he is not training, the pain in his hand subsides in about an hour, unless he has to use the hand “for a reasonable amount” (T79).
Many of the permanent physical aspects of the plaintiff’s right hand handicaps are referred to in the affidavit which he swore on 15 December 2001 and which was here tendered (exhibit P4). Those handicaps include the inability to grasp ropes or narrow steering wheels and difficulty in prolonged holding of golf sticks, picking-up pool balls, washing the car, handling small objects such as nuts, bolts and screwdrivers, caressing his girlfriend, handling boat oars, using a cigarette lighter, playing the guitar, holding a tennis racquet, picking fruit and cooking, including the holding of pots and pans. Those handicaps will persist after the proposed surgical procedures of joint fusion and replacement are performed.
The post traumatic stress disorder (PTSD)
After examining the plaintiff for his solicitors in February 2000, Ms Ursula Sombetzki, a clinical psychologist with 20 years experience, reported on 3 April 2002 (in exhibit P1) that, in her opinion, he was suffering from a PTSD directly resulting from injuries received in the accident. He spoke of initial insomnia, frequent nightmares (about once a week), increased consumption of alcohol and loss of interest in his girlfriend and sexual activity. She found that his anxiety levels were in the clinical range and that he suffered loss of confidence and embarrassment (about his hand) around young women. She thought that he was in need of treatment to help him overcome his disorder. Perceptively, she observed that his hand injuries will require him continually to adjust his aspirations throughout his life; that his career choices have narrowed; and that he will have problems with everyday tasks.
On 12 February 2001 (about three years after the accident), Ms Sombetzki reported that the plaintiff had returned for counselling, with recurrence of panic attacks and re-experiencing the accident upon seeing a film which depicted scenes similar to the accident. On 3 January 2002, having seen the plaintiff for counselling several times during 2001 (the last time being in August 2001), she reported that his residual PTSD symptoms were “chronic”. She expected that those symptoms “will wax and wane over time”, depending on stresses in his life; that he will need treatment from time to time; and that he will remain more susceptible to experiencing symptoms in the future. With her, the plaintiff missed many appointments (T262). She thought that his body building was a form of self-help (T263).
Dr Martyn Ewer, a psychiatrist, twice examined and reported on the plaintiff to the defendant’s solicitors this year (exhibit D1). Without reciting those reports in detail, in February 2002 (about four years after the accident) he was of the opinion that the plaintiff fulfilled the DSM-IV diagnostic criteria for a PTSD. He was also of the opinion that the disorder was causally related to the accident; that the disorder was mild; and that it had improved with the passage of time and benefit of treatment. He considered it likely that the plaintiff would experience further improvement over the next few months and that it was “quite likely” that his symptoms would almost completely resolve, although he suspected that he will be left with some mild, persistent symptoms, which should not cause him significant disability.
When Dr Ewer next saw the plaintiff in September 2002, the plaintiff told him that his mental state had considerably improved. He had just won the Australian Body Building Championship. He was enjoying his studies and hoped to finish his degree this year. He had recently decided to establish a personal training company. His hand ached most days, probably, he acknowledged, because of his daily weight training. He had not suffered panic attacks for seven (or several) months. He had not had a nightmare related to the accident for five months. Since ceasing the medication which he had taken to facilitate body building, he had been sleeping well. On 27 September 2002, Dr Ewer reported (in exhibit D1) that the majority of the plaintiff’s symptoms consistent with a PTSD have resolved (most of the other symptoms could be attributed to steroid use, other substances and diet); and that his PTSD has now fully resolved, with no further treatment being required.
In evidence, the plaintiff acknowledged that, when he saw Dr Ewer in September 2002, his aspirations were high and he was optimistic about everything (T84). A couple of weeks later, he said, he ‘came down to earth’ about the prospects of forming a company (T84-85). To his father, although the plaintiff had put tremendous effort into disciplining himself for university studies and body building, “he is still a very quixotic sort of person, jumps from one thing to another” (T139). Ms Sombetzki described him as, “still all over the place” and “Unrealistic, far too young for his age” (T246).
Assessment of the plaintiff’s damages
In discussion with counsel, reference was made to a few recent cases in which judges of this court have made awards of general damages in respect of injuries to hands (one of those awards was increased, on appeal, by the Full Court in Boothey v Morris and Morris (2002) 219 LSJS 379). In approaching this assessment, I am grateful to Mr Evans for reminding me that the well established principle here to be followed is that enunciated by the High Court in Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, at 125 by Barwick C.J., Kitto and Menzies JJ:
“the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen… The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations.”
Their Honours continued,
“It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation… The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully, to allow for differences between the circumstances of those cases and the circumstances of the case in hand.”

(My emphasis.)
Upon the evidence presented regarding the plaintiff’s accident-related injuries, I am satisfied and find that the following position has been established:
The plaintiff suffered a very serious injury to his right hand which, for most purposes, was his dominant hand. Many bones in his fingers were fractured and soft tissues were damaged. Considerable pain and shock were sustained. He underwent numerous surgical procedures and was hospitalised for about two weeks, in all. He has significant residual impairment of function of that hand of about 60%, accepting (as I do) the component quantification adopted by Mr Pope. His hand is scarred, partially clawed and cosmetically unattractive. The fingers are deformed, have quite restricted functional mobility and he is unable to clench his hand.
The plaintiff’s right hand disability is significantly restrictive of him in many work and recreational pursuits. He is unable to perform activities which involve intricate movement of his fingers. Without reservation, I accept the unchallenged previously-related evidence regarding his physical handicaps.
In time, performance of the five further surgical procedures, which Mr Pope thought likely later to be required, will become necessary to eliminate increasing pain in his hand.
The plaintiff also suffered a protracted post traumatic stress disorder (PTSD) which persisted for about four years but has now fully resolved and requires no further treatment.
The plaintiff’s special damages were agreed in the amount of $2,711.05. As requested, it is noted that there is an amount which has been paid by a private health fund and is included in those damages (T367).
With regard to the plaintiff’s non-economic loss, in my judgment his pain and suffering, both physical and psychiatric, have been considerable. The amenities and enjoyment of life have also been (and will, throughout his life, continue to be) considerably compromised and diminished. I access his non-economic loss at $70,000, attributing $35,000 to the past and $35,000 to the future, together with interest of $3,200 in respect of the past (adopting the approach referred to by Lander J. in Calvaresi and Rota Forma Pty Ltd v Lawson and Lawson (1995) 184 LSJS 147, at 171).
With regard to the assessment of past economic loss, as Mullighan J. observed for the Court of Appeal in Boothey’s case (supra, at 390-391), the correct approach is to determine what net income after income tax the plaintiff would have earned had he not been injured and then determine what, if any, contingencies, favourable and unfavourable to him, should be considered. From the material presented, it appears that during the 41 weeks that the plaintiff worked at Faulding before the accident (11 May 1997 to 27 February 1998) his total net income was $17,548, derived from an average net income of $428 per week. For six months after the accident, he was recuperating and not able to work. During that time, he would have earned the total net amount of about $11,128. As a result of the injuries to his hand, he was never able to resume working at Faulding.
For about six months before the plaintiff commenced studying full-time for the degree of Bachelor of Applied Science (Human Movement) at the University of South Australia in Adelaide, he was employed as a labourer with two employers in the Riverland. From that employment he earned the total net amount of $8,029. For that period, had he been able to resume work at Faulding, he would have earned the total net amount of at least $11,128 (more if he were successful, as he probably would have been, in progressing to a higher level of pharmaceutical skilled operator). For that period, therefore, his total net loss was at least $3,099. Upon this assessment, the plaintiff’s past economic loss, until he commenced studying in 1999, was about $15,000.
For the plaintiff, Mr Britton contended that the plaintiff’s past economic loss should be determined upon the basis that, but for the accident, he would have continued working at Faulding until trial. For the defendant, Mr Evans contended that, by deciding to embark on further full-time studies, the plaintiff elected to postpone “the greater financial rewards than remaining in employment, a typical university student” (T336):
“If one wishes to obtain tertiary qualifications which may equip one for more interesting and higher paid work in the future, there is a temporary disadvantage.”
That understandable sentiment was indicated by the plaintiff, himself, when, as previously remarked, he quite frankly said, in evidence, that he wanted to better himself, “to get out of just working in factories” and he thought that the university degree would be a good way of doing so (T71).
The plaintiff presented as an intelligent, enterprising and resolute young man, who is capable of determinedly working towards achieving his aspirations. That is also apparent from the favourable psychological appraisal of Ms Socha contained in exhibit P1. Now that he has commendably undertaken and virtually completed four years full-time study, I am confident that he will successfully apply that tertiary qualification in realising his aspirations; and that he will do so in a manner personally and financially more rewarding than if he had not achieved that qualification. In that respect, I agree with Mr Evans that the plaintiff is in a position no different from a typical university student. His past economic loss is assessed at $17,500, inclusive of interest. I do not consider that there is any reason to vary that award on the basis of contingencies.
With regard to the plaintiff’s future economic loss, what ultimately has to be assessed is his loss of earning capacity, to the extend that such loss is or may be productive of financial loss, in all of the jobs and careers which otherwise would have been open to him. Upon the medical evidence which I accept, his loss of earning capacity is represented by the significant percentage (about 60%) permanent loss of function of his right hand. I am persuaded that, in consequence of the accident, he has been rendered considerably less capable of earning income and the diminution of that capacity may be productive of financial loss (see Medlin v The State Government Insurance Commission (1995) 182 CLR 1, at 17, per McHugh J). He has been deprived of the opportunity, or has lost the chance, to earn unimpaired by his accident-related injuries as a physically fit two-handed man, throughout practically the whole of his working life (see Wade v Allsopp (1976) 10 ALR 353, at 358, per Stephens J). However, he has now virtually become qualified to realise more beneficial rewards, both personal and financial, than would otherwise have been open to him. Even without post-graduate study, as the material tendered (in exhibit D3) for the defendant indicated, there exist many rewarding employment opportunities for a person in the plaintiff’s position. Necessarily, a broad axe approach must be adopted and the award should be moderate.
Although the plaintiff has indicated that he would like to establish a company offering personal training services, upon the evidence of Ms Chatterton, the Director of the Australian Institute of Fitness (South Australian Branch), the prospects of such a venture being successfully established in the foreseeable future would not appear to be realistic or feasible, even assuming that the plaintiff had the financial means and did attain the minimum necessary qualification to become registered as a personal trainer. While it is possible that the plaintiff may later become self-employed, I do not consider that is likely to occur in the foreseeable future. In my judgment, it is more likely that he will be employed by another person or body.
Under this head of damages, allowance should also be made for future operative procedures which the plaintiff is likely to undergo. Although the present costs ($15,000 and $2,500) of those procedures should be discounted because the plaintiff will have the use of that money in advance, the future costs will probably be greater than now. Those procedures will also require periods of convalescence, during which he will not be able to work. Taking everything before me into account, allowing for contingencies (both favourable and unfavourable) and discounting 3% for the effects of inflation (Todorovic v Waller (1981) 150 CLR 402), the present value of the plaintiff’s future economic loss is assessed at $70,000.
For the gratuitous services which were rendered to the plaintiff by his parents during his convalescence, he is entitled to recover the value of services which were required to satisfy his need for care or services resulting from the defendant’s wrong (see Van Gervan v Fenton (1992) 175 CLR 327). Upon the evidence, I am satisfied that the plaintiff needed both emotional and physical support during the intensive phase of his convalescence (which phase immediately followed the accident and his operations) and that those needs were met by his parents. Their emotional support assisted him to overcome the shock of the accident and come to terms with his pain and the impact that his disability might have left on him. Their physical support assisted with day to day tasks, such as cooking, showering, dressing, taking medication, washing, ironing, and driving him to attend appointments, both in Renmark and Adelaide. For those significant gratuitous services of a much more demanding nature than normally to be expected of a family member, I consider that, upon the material presented, the amount of $3,000 should be allowed, inclusive of interest.
In summary, the plaintiff’s damages are assessed as follows:
Special damages (as agreed)  $2,711.05

Non-economic loss
past (inclusive of interest)  $38,200.00
future$35,000.00

Economic loss
past (inclusive of interest)  $17,500.00
future (inclusive of medical treatment)                 $70.000.00
Gratuitous services (inclusive of interest)  $3,000.00
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$166,411.05
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Upon the plaintiff’s amended claim for past and future losses of entitlement to superannuation benefits, as agreed with counsel that issue remains to be resolved, together with the question of costs.

[2002] SADC 141

6 December 2002