Faruk v Sydney Airport [2021] NSWDC 206

Material Facts

The Plaintiff, Mr Faruk, was injured on 19 June 2016, in a slip and fall accident in a public toilet at Sydney Airport.  He was turning from the basin when he fell, fracturing the neck of his left femur (hip).  His injury was treated by surgery the following day.

Mr Faruk, at the time was employed full time at a takeaway food provider in Sydney Airport, and worked 20 hours per week as a taxi driver.  He used the toilet in question when working in both these roles.

Damages Findings

Non-Economic Loss

The court considered that the plaintiff had made a good recovery and any concerns that were held regarding the onset of arthritis or consequential disparity in leg length due to the injury, had been dispelled.  The court allowed an award for economic loss at 23% of the most extreme case.

Past Out-of-Pocket Expenses

The parties agreed that past out-of-pocket expenses were $6,870.33.

Future Out-of-Pocket Expenses

The court allowed for $20.00 per month for purchase of pain medication (including Panadol), totaling $3,072.10.  The Defendant claimed that this should not be allowed because there is not medical evidence to support the claim and there were no receipts for the purchases in the past.  The court rejected these submissions, stating that is it “reasonable to assume that [the plaintiff] should be able to claim for over-the-counter medication” for pain that he described experiencing when sitting down for long periods.

An amount of $7,000.00 deferred for 12 months totaling $6,664.00 was allowed for a procedure to remove internal fixations.

The court did not allow the cost of the hip replacement to be included in this assessment as the medical evidence did not support its occurrence.  Similarly, claims for hydrotherapy and exercise physiology were not allowed as the plaintiff did not give evidence that he intended to engage with these treatment options.

The court rounded the allowable claims under this head of damage to be $10,000.00.

Past Economic Loss

The plaintiff took 13 weeks off work due to the injuries.  The plaintiff then returned to his usual work (across the two jobs) although the court found that he was working 15 hours per week in his taxi driving role, whereas he was working 20 hours per week in this role prior to his injuries.

The court allowed the plaintiff’s pre-injury weekly wage ($820.00) to be claimed for the 13 weeks that the plaintiff did not work, totaling $10,660.00.

A further $10,000 was awarded for the following financial year, in which the plaintiff’s tax records showed a loss of income, which the court accepted reflected his convalescence from the injury.

Future Economic Loss

Given that the plaintiff has been able to maintain “steady employment in his two previous jobs over the past four years, his future can be predicted with some certainty”.  The court said that he will likely continue to work until retirement and so no loss for the future was allowed.

The court did note, though, that defendant’s submissions that “the usual age of 65 should be adopted” for the projected retirement of the plaintiff, was a “surprising error”.  The court considered it likely that the plaintiff would continue working as a taxi driver until 70 and in his currently capacity until 67.

Past and Future Homecare

No allowance was made for past homecare as the plaintiff did not meet the threshold.  A claim was made for care if the plaintiff require surgery in the future, however, the court’s previous finding that a hip replacement would not be required, meant this claim was not allowed.