El Dehaibi v Hanzoul Pty Ltd t/as Mr Fresh Punchbowl

District Court of NSW|2021-05-20

Introduction and factual background

On 19 February 2019, the plaintiff, Mrs Raba El Dehaibi, then aged 52 years, was injured in a fall on a footpath outside fruit shop premises known as Mr Fresh Fruit and Vegies located at 132 - 138 Dudley Street, Punchbowl, NSW. Those premises were owned and occupied by the defendant, Hanzoul Pty Ltd, trading as Mr Fresh Punchbowl.
The plaintiff's injuries occurred due to the defendant's operation of a forklift on the footpath outside the premises. Over time, this resulted in damage and unevenness to the surface of the footpath. The damaged condition of the footpath constituted a hazard that caused the plaintiff's injury.
Default judgment in favour of the plaintiff was entered against the defendant on 17 November 2020. The only remaining issues to be determined in the proceedings concern the assessment of the plaintiff's claim for damages. The proceedings are governed by the provisions of the Civil Liability Act 2002 (NSW), ("CL Act").

Evidence

At the hearing, oral evidence was given by the plaintiff and one of her sons, Abdul El Dehaibi, who took photographs of the accident site. The plaintiff relied upon a tender bundle comprising 84 pages of relevant documentary material, including medical reports relating to her damages claim: Exhibit "A". I have drawn upon that material in arriving at my findings, which now follow.

Facts

The plaintiff is presently aged 54 years. She arrived in Australia from Lebanon in 1987 and married in that year. She has five children. She and her husband became estranged and separated in 2002. They have recently become reconciled. She has not ever been in paid employment. Before the subject fall she was fully engaged in domestic activities. She gave her evidence with the assistance of an Arabic interpreter.
The plaintiff had some pre-accident health issues. These comprised a history of anxiety attacks with episodes of hyperventilation, neck and low back pain, scoliosis of the thoraco-lumbar spine, and right knee pain.
On 28 April 2013, unrelated to the present proceedings, the plaintiff was injured in a slip and fall incident at a fast food outlet in a shopping centre. In that fall she injured her head, neck, right shoulder, back and her right leg. She sought legal redress in respect of those injuries, and in that regard, on 10 October 2014, she was awarded damages in the sum of $128,369 in District Court proceedings numbered 2013/247589.
Following the injuries sustained in 2013, her ability to carry out domestic tasks including gardening and house cleaning was impaired to a degree. She found difficulty with mopping floors, vacuuming, cleaning the bathroom and laundry. She obtained assistance from her daughter and a daughter-in-law for some of those tasks.
The plaintiff said that prior to the 2019 fall which is the subject of these proceedings, the pain she experienced in her right shoulder had gradually reduced, and she found that she was able to cook, and do the shopping, and despite some residual back pain she did some of her housework. One of her sons attended to the lawnmowing and washing her car.
In the events of the 19 February 2019 fall, the plaintiff had taken a load of green grocery shopping to her car and as she returned to walk on the footpath near the defendant's premises to proceed to another nearby shop, she fell on her outstretched hands which had extended in different directions.
In that fall the plaintiff injured her face, her left knee, her left shoulder, and she fractured a number of bones in the fingers of her right hand. In the fall she also injured her right knee, and aggravated the pre-existing problems she had in her back. She was also considerably shaken by that fall.
Someone came to the plaintiff's assistance. One of her sons was then called to come and assist her. At that time she had difficulty standing. An ambulance attended. She was taken to a hospital where her face and her right hand were x-rayed. She remained in hospital for one day.
On discharge from hospital the plaintiff saw her general practitioner who arranged x-rays of her left shoulder, left hip and left knee. She reported that she had sustained bruises on that knee and she had pains in her entire body.
No contemporaneous assessment and treatment reports were tendered from the plaintiff's treating general practitioner or in relation to the hospital or any other treatment she received, apart from reports describing the results of imaging.
The plaintiff underwent physiotherapy treatment and wore a plaster and a plastic sleeve splint on her right hand. After three weeks this was removed and she used a protective sling for her right hand. The plaintiff continued to receive physiotherapy treatment. She was advised to avoid using her right hand for heavier tasks. She is naturally right-handed. She said that her children did all the domestic tasks and shopping for about a year following the 2019 fall.
On 4 February 2020, at the request of her solicitor, the plaintiff was examined by Dr Andrew Porteous, an occupational physician: Exhibit "A", pp 1 - 8. In his report which followed that examination, Dr Porteous set out a detailed history of the plaintiff's post-accident problems and he reviewed an extensive series of medical reports that related to her previous fall and her condition of health that pre-dated the 2019 fall. He also reviewed a series of medical imaging reports which post-dated that fall.
In differentiating between those two sets of injuries, Dr Porteous concluded that in the subject fall, the plaintiff sustained a soft tissue musculo-ligamentous sprain and aggravation of underlying degenerative changes in her left shoulder, the left knee, the right wrist and a fracture of the right fifth or little finger. He also concluded that she had aggravated a pre-existing chronic condition in the lumbar spine. He concluded that the prognosis for her condition, as aggravated in the subject fall, was guarded.
On my reading of the plaintiff's pre-accident medical records, such as have been tendered, the plaintiff had significant underlying conditions that would most likely have continued to adversely affect her day-to-day capacity to enjoy the amenity of her life. In my view, the burden from the additional injuries sustained in the 2019 fall was of a relatively modest impact.
That said, the plaintiff described, and I accept, that since the subject fall, she has had difficulties carrying out her pre-fall domestic tasks which were in any event limited. She has obtained the assistance of her family members with those tasks. There is no claim for the past value of that gratuitous domestic assistance.
There is no suggestion that the plaintiff has in any way failed to take reasonable steps to mitigate her damages. She has sought out appropriate medical assessment and treatment. As there is no claim for economic loss there is no need to identify the plaintiff's most probable future circumstances but for her injury: s 13 of the CL Act.

Assessment of damages

In the paragraphs that follow I set out my assessment of the plaintiff's entitlement to damages.

Non-economic loss

The plaintiff submitted that her damages for non-economic loss should be assessed in accordance with s 16 of the CL Act at 26 per cent of a most extreme case.
The disabilities described by Dr Porteous do not warrant an amount of non-economic loss at 26 per cent of a most extreme case. I consider the plaintiff's submission on s 16 damages to be overstated. I assess the plaintiff's damages for non-economic loss at 20 per cent of a most extreme case. The monetary equivalent of that assessment is $24,000.

Future treatment expenses

The plaintiff claims future out-of-pocket and treatment expenses in the total amount of $21,507.65. That claim was based on a series of treatment recommendations made by Dr Porteous.
The plaintiff's claim is for steroid injections, physiotherapy, a left knee MRI, an orthopaedic review, a right hand MRI, review by a hand specialist, general practitioner visits, an occupational therapy assessment, mechanical aids, pain relief and a supervised exercise programme, as quantified according to the suggestions of Dr Porteous: MFI "1". Those expenses are related to the 2019 fall.
Some of those expenses will most probably be incurred over a period of uncertain duration. I am not persuaded that they will be regularly recurring expenses over the plaintiff's remaining statistical life time of 33 years, particularly in relation to the elements of her claim for the cost of services from a general practitioner, pain relieving medication, and supervised exercise.
In those circumstances, and taking into account the plaintiff's pre-accident disabilities and restrictions which would have inevitably continued to adversely affect her to some degree, I consider a lesser and discounted buffer sum of $5,000 would represent fair compensation for this head of damage. I therefore assess the plaintiff's damages for future out-of-pocket and treatment expenses in the buffer sum of $5,000.

Future domestic assistance

The plaintiff claims damages for future domestic assistance in the sum of $76,199.20, being for 2 hours per week at $44 per hour projected over her statistical life expectancy of 33 years (x 865.9) without discount.
Dr Porteous considered the plaintiff's need for future domestic assistance in the following terms: "In my opinion, she was restricted from stretching and reaching out with the right hand and now is restricted from stretching and reaching out with the left arm. She was restricted with regard to a previous right knee injury from kneeling and crouching. This is further compounded by now subject accident related left knee injury and also an increase in the lumbar back pain. She has now had difficulty with her right dominant hand with more forceful repetitive activity and restricted from that. All of the above subject accident related new injuries has even further reduced her capacity for domestic activity and as a result of the subject accident clearly her family is doing more and she is also getting some garden and lawn support. In my opinion, as a result of the subject accident further reducing her capacity that was already present reduced from the prior slip, trip and fall injury in April 2013, she reasonably needs a further two hours a week of professional domestic assistance and will do now long term." [Exhibit "A", pp 7 - 8]
I consider that as an occupational physician, Dr Porteous is well qualified to express an opinion on the extent to which the plaintiff's accident-related restrictions would adversely impact upon her ability to carry out household tasks in the terms cited above, save for the matter of quantification. In that latter regard, I consider the submission that the plaintiff needs a further two hours per week of professional domestic assistance is arbitrary and not reliably explained or supported in the evidence: Sampco Pty Ltd v Wurth [2015] NSWCA 117.
Furthermore, I also consider that the undiscounted amount submitted on the plaintiff's behalf is excessive because it is projected over the plaintiff's remaining life span, without discount and without due account of the plaintiff's significant pre-accident restrictions. Several elements of discount must therefore be applied in assessing this head of damage.
Potential adverse vicissitudes must be taken into account. The long-term treatment predictions made by Dr Porteous do not necessarily equate to a lifelong need for injury-related domestic assistance. The underlying condition which affects the plaintiff may well have progressed even further so as to restrict her ability to carry out domestic tasks in any event. The time taken by the plaintiff to carry out various domestic tasks is likely to vary over time. Those matters preclude the projection of a precisely formulated weekly amount for this head of damage as was submitted.
Given the plaintiff's family arrangements and given the ad hoc nature of the tasks involved in assisting her, noting that the plaintiff would be receiving gratuitous assistance from family members, I consider it improbable that she will be engaging paid domestic assistance for those tasks. I therefore make no award of damages for future domestic assistance.

Past out-of-pocket expenses

I assess the plaintiff's past out-of-pocket expenses in the amount set out in Exhibit "D", namely $1,750.36.

Summary of damages assessment

My assessment of the plaintiff's damages is summarised as follows: (a) Non-economic loss $24,000 (b) Future treatment expenses $5,000 (c) Future domestic assistance $Nil (d) Past out-of-pocket expenses $1,750.36 Total $30,750.36

Disposition

The plaintiff has established her entitlement to a damages award for $30,750.36 and she should have a judgment for that amount.

Costs

As the plaintiff has succeeded in obtaining a judgment in her favour, she should have an order that the defendant should pay her costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

I make the following orders: 1. Verdict and judgment for the plaintiff against the defendant in the sum of $30,750.36; 2. The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered 3. The exhibits may be returned; 4. Liberty to apply on 7 days' notice if further or other orders are required.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 June 2021

At a glance

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Judgment (13 paragraphs)

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