Underwood v Glacken No. DCCIV-00-1751

UNDERWOOD v GLACKEN
[2002] SADC 50
Judge Allan
Civil

On 27 December 1997, the plaintiff was accidentally shot by the defendant; the bullet striking him in the left knee. As a result, the plaintiff suffered injury and loss for which he seeks damages. The defendant admits liability and the matter comes on for assessment of those damages.
The plaintiff was born on 28 December 1971. He was educated to matriculation standard, leaving school at the end of 1988. Since leaving school, he has worked as a clerk, process worker, landscaper, apprentice motor mechanic and general labourer. He hoped to join the police force, but his application was unsuccessful.
The plaintiff obtained work immediately after finishing school and, except for periods which I will mention later, has been constantly employed ever since.
In March 1996, the plaintiff commenced his own landscaping business. It included paving, irrigation and the construction of walls and lawns. The bulk of the work was paving. He was operating this business at the time of the accident. The business was developing and he took on casual workers as he required assistance. By the time of the accident, he had reached the stage where he was satisfied with the level of business he was doing. In the year ended 30 June 1997, the business made a profit of just over $15,000. There were sales of about $87,000 and expenses of about $72,000.
Prior to the accident, the plaintiff was actively involved in sport. At school, he had played mainly football and cricket, but had participated in any sporting activity that was available. After he left school, his sporting interests, so far as playing was concerned, revolved around football. He played competitively up until the accident. He earnt some money from playing football. In 1995 and 1996, while playing at Murray Bridge, he was paid $200 per game. In 1997, he received no payment for playing.
In the early days of his football career, the plaintiff experienced some pain in his right knee. At the age of 17, he had an arthroscopy performed on it and, later, developed bursitis in it. Shortly before the accident, the bursitis was surgically treated and the plaintiff was recovering from that procedure at the time of the accident. He recovered fully and does not have any lingering disability of that knee. He had some other football injuries, a chipped bone in an ankle and a broken thumb, but recovered from them.
The shooting accident occurred after the plaintiff and others, including the defendant, had returned from a spotlighting expedition near Ardrossan. Immediately after the accident, the plaintiff was taken to the Maitland Hospital where he was examined and received some initial treatment before being taken to the Ashford Hospital in Adelaide. Later, on the day of the accident, the plaintiff was operated on by Dr Krishnan; an orthopaedic surgeon. The bullet had lodged in his knee. It caused a compound intra-articular fracture of the lateral femoral condyle of the femur and there was some damage to the articular cartilage of the joint. The bullet was removed, the joint debrided of damaged cartilage and bone and the fracture fixed by screws. The wound was left open.
On 30 January 1997, a second operation was performed at which the plaintiff’s wound was closed, and he was discharged from hospital the following day.
On his discharge from hospital, the plaintiff went to his parents’ home where he was cared for by his girlfriend, Sheridan, who was later to become his wife, and his mother. He was in a lot of pain for the first three weeks and was confined to bed or a chair. He required assistance in the daily tasks of living. He was taking painkillers every four hours or so. He found it difficult to sleep. After he got out of bed, he was on crutches for about six weeks. He had some advice about exercises to strengthen the muscles around his knee and did some swimming.
In March 1998, the plaintiff returned to work. Initially, he restricted his activities, working with a man called McClure in obtaining contracts for landscaping work which he would contract out and supervise. The arrangement was unsuccessful and lasted only 6 to 8 weeks; the plaintiff returning to the running of his pre-accident business.
The plaintiff experienced trouble with his knee doing his landscaping work. He had trouble bending, lifting, kneeling and squatting. He had pain in his knee and some “locking”. The pain got worse as the day went on. Some days, the pain was better than others. Sometimes, he did a full days work and, on other days, he stopped short of that. He took Panadine Forte two to three times per week for the relief of his pain.
The plaintiff had been discharged from the care of Dr Krishnan in April 1998, but, because of the pain and locking in his knee, he returned to see him.
Dr Krishnan performed an arthroscopy on the plaintiff’s knee. Some articular cartilage was debrided. Although there had been some cartilage growth, there was some loss of articular cartilage lining at the end of the joint.
The plaintiff was laid up for a day or two after the arthroscopy, during which time Sheridan cared for him, but, after that time, he was able to look after himself.
On 1 September 1998, the plaintiff underwent a further surgical procedure: the screws were removed from his knee and the possibility of a chondral graft procedure and mosaic plasty was explored, but rejected. He was off work for about three weeks after this procedure. Again, Sheridan helped him, particularly in the first few days when he was confined to bed.
The plaintiff was back in hospital again on 8 October 1998: an infection had developed in the wound and it needed to be drained. He was in hospital for about 3 days and required the assistance of Sheridan for a couple of days after his discharge. I mention that, sometime before this surgery, the plaintiff had returned to work.
In late 1998, the plaintiff assisted a friend in harvesting: he drove the tractor. He coped with this work, although he had some stiffness and soreness in his knee from sitting in the same position for lengthy periods.
The plaintiff took two weeks off over the Christmas period in 1998 and then returned to his landscaping work. In the mornings, his knee would be stiff and sore, but, as he warmed up, freedom of movement returned, although, by the end of the day, the pain in his knee was worse. He tried to avoid the heavier work. He employed people to assist him with the work. The pain in his knee interfered with his sleep and his mood and he curtailed his social activities. He took Panadine Forte two to three times a week for relief from his symptoms.
In May 1999, the plaintiff saw Dr Krishnan again about his persistent symptoms. He had an MRI scan which confirmed the articular cartilage damage and showed that he was developing a degenerative cyst, a ganglion, in the proximal tibia-fibula joint.
In late 1999, the plaintiff gave up his landscaping work. He found he could cope with it no longer. On 19 January 1990, he commenced work with a landscaping and fuel depot. It was part-time, casual work. He worked about 20 hours per week over three days, although he worked longer hours if required and if he was feeling up to it. His work involved general yard duties and sales work and included lifting and carrying weights of up to about 30 kilograms, operating a front-end loader and forklift and driving a light truck. His knee would be stiff and sore at night. Full-time work was available to him, but he did not consider he was fit for it.
In January 2001, the plaintiff saw Dr Krishnan again. He had been experiencing a “locking” sensation in his knee. He was aware of a lump in the knee. On 30 January 2001, Dr Krishnan performed another arthroscopy on his knee, at which time damage to the articular cartilage was debrided. He was home for a few days after this procedure, again requiring the assistance of Sheridan for the first two days. By that time, he and Sheridan had married; on 20 February 1999.
After the arthroscopy on 30 January 2001, the “locking” continued and the plaintiff remained aware of the lump in his knee.
In August 2001, the plaintiff saw Mr Menz, an orthopaedic surgeon, at the request of the defendant. X-rays of his knee arranged by Mr Menz showed a loose body in the knee; the lump which the plaintiff had observed. Subsequently, on 20 August 2001, it was removed by Dr Krishnan in another arthroscopy. Since then, the “locking” has disappeared.
In September 2001, the plaintiff accompanied his wife to the United States. Her work took her there. She has a well-paid job with Southcorp. They returned to Australia in March this year. The plaintiff has not yet resumed worked. While in the United States, the plaintiff did some work with a hot air balloon company, but largely played the role of house-husband and tourist. As might be expected, there is a difference of opinion between the plaintiff and his wife about his effectiveness as a housekeeper.
Since late 1998, in the expectation that he would not be able to continue as a landscape gardener because of the condition of his left knee, the plaintiff has undertaken courses with a view to broadening his work skills and re-training himself for employment other than in the landscape area and where he could protect his knee. I set out hereunder the courses which he has undertaken and the amount which he paid for each such course:

Fisheries Course

900.00

Coxswain Exam

300.00

Coxswain Exam

270.00

Timber Frame Course

580.00

Forklift Course

70.00

Build Supervisor

750.00

Truck Licence Course

140.00

TOTAL

3,010

The injury sustained by the plaintiff and it’s sequelae have wrought a change in the plaintiff’s life. He no longer participates in competitive sport and has not done so since the accident. He exercises with emphasis on strengthening the muscles surrounding his knee. The musculature surrounding his knee is about the same as that about his right knee. Occasionally, he participates in some mild, sporting activity, but it is nothing to speak of; and he tailors his social activities according to the condition of his knee.
The plaintiff has a constant ache in his knee. In the mornings, it is stiff and sore, but mobility and soreness improve as he warms up. Later in the day, depending on the sort of activity he has been involved in during the day, the pain increases. The pain is located on the outside of his knee and sometimes radiates across to the other side of the knee. There is no swelling in the knee. He has full range of movement of his knee, with some pain in the extremities of movement. Certain activities produce pain: prolonged heavy lifting, squatting, prolonged standing, prolonged sitting, kneeling and prolonged walking. He can run, but, if he runs too far, his pain increases. He protects his leg from unguarded movement; for example, he goes fishing in a boat and is careful to protect his leg against the movement of the boat.
The injury and it’s sequelae have impacted on the plaintiff’s working life. He should avoid work which involves him in prolonged heavy lifting, squatting, prolonged standing, kneeling and prolonged walking. He will need to be careful when climbing ladders. This does not mean he cannot do work involving these activities; he can; but, if he does, his level of pain will increase as will the prospect of degeneration in the knee.
So far as the future is concerned, there will probably be some degenerative changes in the plaintiff’s knee, but, if he takes proper care of it, and avoids the sort of work I have mentioned, he will be able to go on working for many years.
I should say that Dr Krishnan and Mr Menz have a somewhat different view as to the pathology in the plaintiff’s knee; for example, Dr Krishnan considers the damage to the articular surface of the femur to be in a weight-bearing area whereas Mr Menz considers that it is not; Mr Menz being of the view that it is peripheral damage unlikely to be involved in the weight-bearing process. As a result, they disagree about the level of degeneration which might be expected; but, looking at their evidence against the background of the plaintiff’s evidence as to his symptoms, which I accept, I think it probable that there will be some degeneration in the knee in the future.
There is some other pathology in the plaintiff’s knee apart from the fracture of the femoral condyle and the damage to the articular cartilage. There is a small tear in the lateral meniscus. Dr Krishnan also thinks there is some attenuation of the anterior cruciate ligament; an opinion which Mr Menz does not share. On the evidence, it is not established that the tear of the meniscus and the attenuated cruciate ligament, assuming it exists, are causally connected to the shooting incident; and Mr Stratford, for the plaintiff, did not really contend to the contrary. I turn to a consideration of specific heads of damage.
The plaintiff has undergone a good deal of pain and suffering. The initial pain and anxiety was considerable. He was given morphine at Maitland. For the first three weeks after the injury and the initial surgery, the pain in his knee was considerable. He was taking Panadine Forte every four hours. Thereafter, the pain gradually abated, but he was still experiencing a good deal of it after he was mobile on crutches. The other surgical procedures he has undergone have also involved a level of pain and inconvenience; and I have already mentioned the soreness he experiences in his knee from time to time. I have also mentioned the interference with his lifestyle brought about by the injury. I mention that he has an operative scar seven to eight inches long on the lateral aspect of his knee, but he does not seem to be troubled by it, aesthetically or otherwise.
I think it probable the plaintiff will undergo some surgery in the future in the form of arthroscopy. There was a time when Dr Krishnan held the view that, at some time in the future, because of degeneration, it was probable the plaintiff would require a knee replacement; however, as I understand his evidence, he now regards this as only a possibility; and, for his part, Mr Menz has always considered this to be unlikely. I am inclined to think that Mr Menz is correct on this topic; but, whatever, on the evidence, I think the likelihood of such surgery is remote. So far as arthroscopy is concerned, I think there is a real possibility that the plaintiff will require some arthroscopic treatment. This is the view of Dr Krishnan and Mr Menz does not exclude it as a possibility. To some extent, the requirement for such treatment will depend on how the plaintiff looks after his knee. I am unable to say, on the evidence, how often an arthroscopy might be required. It might not be required at all; but such treatment will involve the plaintiff in some pain and inconvenience. It will also involve him in some expense and I will say something about that later. I turn to the claim for past economic loss.
The plaintiff enjoyed his landscaping work and the freedom of being self-employed. By nature, he prefers work of a physical sort performed outdoors; although this does not mean he likes all outdoor work; for example, he does not find simple labouring work particularly attractive; but he is attracted to the sort of work involved in landscape gardening and the like. I am satisfied that, but for the injury, he would have continued to work as a landscape gardener, probably in his own business, up to the time he went to the United States with his wife; and I think he would have been operating on the same scale. He was comfortable with the amount of work he was doing.
An accountant, Mr Hugh McPharlin, provided an opinion as to the loss of income sustained by the plaintiff as a result of the injuries sustained by him in the accident up to 17 August 2001; the date he ceased work prior to going to the United States. There is no dispute that the material relied upon by him for that purpose, and his calculations, are accurate. Mr McPharlin calculated the net loss of income sustained by the plaintiff at $23,732.00 on the basis that, but for the injury, the plaintiff would have continued to work as a self-employed landscape gardener during that period. Mr Beazley, for the defendant, says that this is the appropriate figure for damages for past economic loss. Mr Stratford submits that the figure should be greater, saying that it should be calculated on the average net income of non-managerial personnel in South Australia for the same period; an approach which would produce a loss of $72,772.00 after tax. I do not accept Mr Stratford’s submission. As I have said, I think the probabilities are that, but for the injury, the plaintiff would have continued to operate his landscaping business: he was content with the work and the size of his business and demonstrated no concern that he might have made more money in some other form of work as an employee.
The plaintiff gave some evidence that there has been a boom in the landscape gardening business and that, at some time after the accident, he could have charged out his work at a higher rate, thereby increasing his profit. It is difficult to know how any such increase could be calculated in money terms. There was no evidence about any corresponding increase in costs. In all the circumstances, I think the value of this evidence, which I accept, means that there would have been no lack of work available to the plaintiff.
There is a possibility that, during the period under consideration, the plaintiff would have received some income from playing football. I will take that into account in a modest way in assessing his damages under this head.
I will also take into account the possibility that, for whatever reason not related to the accident and the injuries sustained, the plaintiff would not have worked at his business for the whole of the relevant period.
So far as the claim for damages for future economic loss is concerned, I have already mentioned the matters which would impact on the plaintiff’s working life, setting out the sort of work which he should avoid. The probabilities are that the plaintiff will obtain employment within his capabilities: he has already indicated his capacity and willingness to do so. There is a real likelihood that his working life will be shortened because of his injuries; but I think it unlikely he would have spent his working life doing the landscaping work he was performing at the time he sustained his injury in any event: it is work which places strain on his legs, particularly his knees, and Dr Krishnan thought his physique was against him.
The plaintiff and his wife hope to have children and, in that event, they have agreed that, after an initial period, his wife will return to work and he will remain at home and care for them. I think it likely that this is the sort of decision they would have come to regardless of whether the plaintiff suffered his injury: his wife has a job that is well-paid, being considerably more than the plaintiff was earning and likely to earn, her prospects of advancement are sound and she is keen to pursue her career; but the fact of the plaintiff’s injury has probably made the decision easier. I will take this into account in assessing the damages under this head. I will also take into account the possibility that, for other reasons not related to the injury, the plaintiff would have had periods out of work in any event and his working life might have been curtailed. I will also take into account the possible loss of earnings as a result of undergoing arthroscopic treatment.
I think this is not a case where the damages for future economic loss should be assessed on the basis of actuarial calculations; rather, I think it is a case where it is appropriate to assess them on the basis of a lump sum taking into account those matters I have mentioned and the relevant material before me.

So far as special damages are concerned, they have been agreed at $19,619.40. The plaintiff claims a further sum of $3,010 being the cost of re-training himself and being made-up of the cost of the courses I have already set out. I propose to allow this claim. I am satisfied as to their connection with the injury and the reasonableness of the amounts claimed. Mr Beazley challenged the latter on the basis that reasonableness has not been proved to the requisite degree, but, in the absence of any material to the contrary, I infer that the amounts claimed are reasonable. The plaintiff is also entitled to a further sum of $158, being the cost of a consultation with a psychologist; and the sum of $32 being the cost of a gym course he did after arthroscopic treatment performed by Dr Krishnan in 1998. It has not really been suggested to the contrary.
So far as future medical expenses are concerned, I think it probable, as I have said, that the plaintiff will, in the future, undergo some arthroscopic procedure. The current cost of such a procedure is between $3,000 and $5,000. There will also be the cost of painkillers from time to time. The appropriate amount of damages for these expenses, in the circumstances, is somewhat speculative; it will depend upon a number of factors; but I will do the best I can. There will be no allowance for the possibility of a knee replacement. I turn to the matter of gratuitous services.
At the time the plaintiff sustained his injury, his future wife, Sheridan, was a university student who did some part-time work. On the plaintiff’s discharge from Ashford Hospital, he was at his parents’ house for a day and then went to the family holiday home at Black Point. Sheridan went with him and helped look after him. The plaintiff and Sheridan stayed at Black Point for at least two weeks. During this time, Sheridan changed the bandages on his wound two or three times per day, organised his medication for him, helped him get in and out of bed and helped him with his toilet requirements. His mother did the cooking. She might have done it in any event.
After about two weeks, the plaintiff and Sheridan returned to his parents’ home where Sheridan continued to look after him for about a week; until his parents returned from Black Point. His mother then helped him. His ability to look after himself improved as his mobility increased. After about six weeks from the time he was discharged from hospital, he was able to look after himself.
The plaintiff required the assistance of Sheridan in the way I have described for one or two days after each of the operative procedures he has undergone since the initial surgical intervention.
In order to assist me in assessing damages under this head, I have been provided with information as to the rates charged by a commercial provider of such services. I have used this material as a guide only. In some cases, it might be appropriate to award damages under this head at market rates, but I think the present case is not one of them. I assume the ordinary commercial rate would include a profit margin and would have incorporated in it allowance for other matters.
The plaintiff will require the sort of assistance which his wife has provided in the past in the event of undergoing arthroscopic procedures in the future. I will take that into account in my assessment.
Interest, by way of a lump sum, will be allowed on the damages for past non-economic loss, past economic loss and past gratuitous services.
Doing the best I can on the material before me, I assess the plaintiff’s damages as follows:-
Past non-economic loss  $25,000.00
Future non-economic loss  $15,000.00
  Past economic loss  $25,000.00
  Future economic loss  $75,000.00
  Special damages  $22,819.40
  Future medical expenses  $15,000.00
  Past gratuitous services  $ 3,500.00
  Future gratuitous services  $ 1,000.00
  Interest  $10,000.00
  Total  $192,319.40
There will be judgment for the plaintiff in the sum of $192,319.40.
I will hear counsel as to costs.

Fisheries Course	900.00
Coxswain Exam	300.00
Coxswain Exam	270.00
Timber Frame Course	580.00
Forklift Course	70.00
Build Supervisor	750.00
Truck Licence Course	140.00
TOTAL	3,010

[2002] SADC 50

3 May 2002