El Dehaibi v Hanzoul Pty Ltd t/as Mr Fresh Punchbowl [2021] NSWDC 240

Published by Michael Cooper on June 17, 2021

Principles

• When calculating damages in accordance with the Civil Liability Act 2002 (NSW) (the Act), the Court will have regard to the plaintiff's pre-accident medical records and underlying conditions.

• The Court will have regard to the plaintiff's prior family arrangements providing gratuitous assistance – this may preclude any claim for future domestic assistance.

Background

On 19 February 2019, Mrs Raba El Dehaibi (the plaintiff) sustained injuries to her knees, left shoulder, back, and right hand when she fell on the footpath outside the fruit shop owned and occupied by Hanzoul Pty Ltd (the defendant).

The plaintiff's injuries occurred due to the defendant's operation of a forklift on the footpath outside the premises. Over time, this continued use resulted in unevenness to the surface of the footpath. This damage constituted a hazard that the Court was satisfied was causative of the plaintiff's injury.

Default judgment in favour of the plaintiff was entered against the defendant on 17 November 2020.  The defendant had failed to appear.  These proceedings concerned the assessment of the plaintiff's claim for damages pursuant to the Civil Liability Act 2002 (NSW).

There was no appearance by the defendant.

The 2013 injury

On 28 April 2013, the plaintiff sustained a prior injury at a fast-food outlet in a shopping centre, injuring her head, neck, right shoulder, back and right leg.  On 10 October 2014, she was awarded damages in the sum of $128,369 in regard of these prior injuries.

Following the injuries sustained in 2013, the plaintiff struggled to carry out domestic tasks including gardening and house cleaning, notably mopping, vacuuming, and cleaning the bathroom and laundry.  She obtained assistance from her daughter and daughter-in-law for some of those tasks and one of her sons attended to the lawnmowing and washed her car.

Decision

 The plaintiff has not ever been in paid employment and there was no claim for economic loss, so consideration of s 13 of the Act was not required. Accordingly, his Honour Judge Levy assessed the plaintiff's damages as follows:

Non-economic loss

The plaintiff claimed that her damages for non-economic loss should be assessed at 26% of the most extreme case in accordance with s 16 of the Act.

His Honour's judgment was based on the report produced by Dr Andrew Porteous, an occupational physician, who set out a detailed report of the plaintiff's post-accident injuries and condition prior to the 2019 fall.  In consideration of this report, the plaintiff's damages for non-economic loss was assessed at 20% of a most extreme case – equivalent to $24,000.

Future treatment expenses

The plaintiff claimed future out-of-pocket and treatment expenses at $21,507.65, based on Dr Porteous' treatment recommendations. Treatments included steroid injections, physiotherapy, pain relief, mechanical aids, an MRI of the right hand and reviews by orthopaedic surgeons and hand specialists.

His Honour accepted that some of these expenses would most probably be incurred but, he was not persuaded that they would be "regularly recurring expenses over the plaintiff's remaining statistical life time of 33 years".

In consideration of the plaintiff's pre-accident disability, a discounted buffer of $5,000 was awarded for future out-of-pocket and treatment expenses.

Future domestic assistance

The plaintiff claimed damages for future domestic assistance at $76,199.20, being a lump sum for 2 hours assistance per week, at $44 per hour, over 33 years without discount.

This claim was also based on the assessment by Dr Porteous that the plaintiff "reasonably needs a further two hours a week of professional domestic assistance and will do now long term".

While his Honour considered Dr Porteous well qualified to express that opinion, it was an arbitrary claim which was not reliably supported in the evidence.

The undiscounted amount submitted was excessive because it projected the plaintiff's remaining life span, without due account of her significant pre-accident restrictions or the vicissitudes of life.

In particular, note was made of the ad hoc gratuitous assistance provided by family members prior to the 2019 fall.  No award was made for future domestic assistance as paid domestic assistance was considered improbable.

Past out-of-pocket expenses

Past out of pocket expenses were assessed at $1,750.36.

Importance

This case reaffirms that the Court will consider a plaintiff's medical history and the uncertainties raised when calculating an award for future care and treatment stemming from compounding injuries.

This case further illustrates that the Court will examine past gratuitous care as an indicator of whether future paid domestic assistance will ever be required or engaged.

Contributors

William Wade, Law Graduate