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

Material Facts

The Plaintiff was injured on 19 February 2019 when she fell on the footpath in front of the Defendant fruit shop. The fall was caused by an uneven footpath where the defendant’s operation of a forklift had worn away and damaged the surface.  Default judgement was entered for the Plaintiff, so assessment of the damages was the only issue in the judgement.

The Plaintiff’s injuries were to her left knee, right knee (aggravation), left shoulder, and she sustained some fractures in her right hand.

Prior to the accident, the Plaintiff had some pre-existing health issues including anxiety, neck and back pain, scoliosis and right knee pain.  She had previously received compensation for a slip and fall in 2013.  Her injuries in that accident were to her head, neck, right shoulder, back and right leg and they impacted upon her ability to perform her domestic tasks.  However, the pain in her shoulder had reduced such that she could cook, shop and do some housework.

Damages Findings

Non-Economic Loss

The court considered that the Plaintiffs injuries could be appropriately assessed at 20% of the most extreme case, giving a non-economic loss award of $24,000.00.

Future Treatment Expenses

The court accepted the treatment required as recommended and valued by Dr Andrew Porteous, Occupational Physician, at $21,507.65.  However, the court considered that the treatment would not necessarily be required on a recurring basis and that the Plaintiff’s pre-existing conditions would continue to impact the requirement for those treatments and so considered that this should be discounted.  The court allowed $5,000.00 for future treatment expenses.

Future Domestic Assistance

The court accepted Dr Porteous’ opinion that the Plaintiff would require domestic assistance into the future, however, it did not accept Dr Porteous’ quantification of this assistance (two hours per week) as it was not well enough explained or supported.  Further, given the Plaintiff’s family arrangement where the Plaintiff received assistance from her children and their partners, and the ad hoc nature of the assistance that the Plaintiff was receiving, the court considered it “improbably that [the Plaintiff] will be engaging paid domestic assistance”.

Past out-of-pocket Expenses

Past out-of-pocket expenses were allowed in the amount of $1,750.36.

Total

Total damages were awarded in the amount of $30,750.36.