Salim v Canterbury-Bankstown Council [2021] NSWDC 169 | no award where damages haven't been particularised

Material Facts

The Plaintiff was injured while she was watching her children play in a council pool.  She was sitting on the edge of the pool and was struck from behind (across her head, neck and shoulders) by a falling umbrella.  The force of the umbrella caused her to fall into the pool.  She was able to return to her work as a Physical Education teacher three days a week, two weeks after the accident.

The plaintiff had pre-existing degenerative changes to her spine, but she was not experiencing symptoms due to this prior to the accident, nor was there evidence to say she would long term.  The court accepted medical evidence that the plaintiff’s shoulder injury would improve over time and that the neck would cause intermittent pain but would not interfere with her earning capacity.

Medical evidence was accepted, that stated there would be a permanent restriction in the plaintiff’s ability to perform repetitious domestic chores, although it was acknowledged that this ability would improve as her shoulder symptoms improve.

Damages Findings

Non-Economic Loss

The court found that the plaintiff’s injuries were to be assessed as 25% of the most extreme case, giving a non-economic loss of $44,500.00.

Past Out-of-Pocket Expenses

It was agreed between the parties that the past out-of-pocket expenses were $3,952.35.

Future Out-of-Pocket Expenses

Given the plaintiff’s ongoing need for analgesic medication and attendance upon a GP, the court awarded $1,000.00 for future out-of-pocket expenses.  Notably, the plaintiff’s evidence was that the physiotherapy that she had undertaken had not provided her with benefit, so there was no allowance made for continuing appointments in this regard.

Past Economic Loss

The parties agreed that the appropriate award here was for the two weeks which the plaintiff required off work following her injuries, totaling $1,515.15.

Future Economic Loss

The court here noted that:

1.       on one hand, the medical evidence suggests that there will be ongoing flare ups of symptoms from time to time; and

2.       on the other hand, the plaintiff had not required a day off work since returning to work two weeks after the accident.

The court said, “this is an appropriate case for a modest cushion or buffer, to reflect the fact that the plaintiff is relatively young, has had a good work history, and may need some time away from work in the future, being a day here and a day there”.

The court considered this modest cushion or buffer should be quantified at $5,000.00.

Past Care

It was interesting in this case that evidence (in the form of an Occupational Therapist report) points towards the need for care exceeding the NSW statutory threshold (6 hours for 6 weeks).  However, a claim for past care had not been particularised in the Statement of Particulars. 

While the plaintiff’s counsel claimed that disclosure of an OT report should have been sufficient to put the defendant on notice that a claim for past care would be made, the court said that such disclosure did not replace the requirement to particularise the case which the defendants are required to meet.

Therefore, no amount was allowed for past domestic assistance.

Future Care

While there was no evidence led by the plaintiff that she would avail herself of paid care if the funds were available to her, the court considered the evidence of her gratuitous care providers in this regard.  The plaintiff’s mother assisted with preparation of meals but was also the full-time carer to her disabled son with significant care requirements.  Although she wanted to continue helping her daughter (the plaintiff) it was become difficult to care for both her son and her daughter.

The plaintiff’s husband was capable of performing the tasks which the plaintiff had previously perform, however, he worked full time in a role that was physically demanding and would prefer to not do as much work around the home as he does.

For these reasons, the court awarded future care as paid care and followed the evidence of the OT report as to the number of hours of care and assistance required by the plaintiff at $45.00 per hour (as there were no submission that this figure was incorrect).  The court only allowed this care component for the time until the plaintiff’s retirement stating that when she is under less time pressure, she would be able to complete the chores at a pace more suitable to her injuries.  A discount of 15% for vicissitudes was applied.

The court awarded $113,124.37 for this head of damage.

Total

In total, the court awarded damages of $169,091.87 to the plaintiff.