Hussain Al-Azam v Ahmed Khagany

Facts

5. The plaintiff was born in Iraq. He is presently 62 years old.

6. After his schooling in Iraq, the plaintiff studied petroleum engineering at tertiary level. He was then drafted into National Service during the Iran-Iraq war. He served for about five years and then deserted on account of his views on the war, which led to several periods of imprisonment.

7. Ultimately, the plaintiff became a refugee and was confined to a camp in Saudi Arabia for four years. Eventually, he was offered the opportunity to come to Australia, which he accepted.

8. The plaintiff had a psychiatric injury, namely Post Traumatic Stress Disorder and a depressive illness, arising from his incarceration in Iraq and his time in the refugee camp. By December 2021, however, he was able to play with his young children and undertake domestic tasks, including dishwashing, gardening and lawn mowing.

9. On 2 December 2021, the plaintiff went to the defendant’s house in a suburb of Sydney because he had undertaken to help the defendant clean the roof of a granny flat behind the main house. The plaintiff had borrowed a ladder, which he placed against a wall of the granny flat. He asked the defendant to hold the ladder, and the defendant did. The plaintiff climbed the ladder and, when he reached the top, he placed one foot on the Colorbond roof, intending then to step onto the roof with his other foot. The sheet of Colorbond under the plaintiff’s foot collapsed and the plaintiff fell about 3 metres onto the concrete floor of the granny flat.

10. The plaintiff was significantly injured. It took about an hour for an ambulance to be called and to attend, for various reasons. The ambulance then took the plaintiff to Liverpool Hospital.

11. The plaintiff was an inpatient at Liverpool Hospital until 9 December 2021. It was discovered that his left femur was fractured, and he underwent surgery, being an open reduction and internal fixation involving the use of a plate and screws.

12. On 9 December 2021, the plaintiff was transferred to Bankstown Hospital for rehabilitation. He remained there for between two and three weeks and was discharged in a wheelchair, which he used for the next six months.

13. After using the wheelchair for six months, the plaintiff began using a frame to walk. He also used underarm crutches from time to time. After a further year, he was able to walk short distances using a stick, but resorts to the frame for longer walks.

Injuries

Fractured left femur

14. Dr Geoffrey Rosenberg, an orthopaedic surgeon, provided a report dated 21 October 2025. Dr Rosenberg said that it was discovered at the Liverpool Hospital, shortly after the plaintiff’s accident, that the plaintiff had suffered a subtrochanteric fracture of his left femur in the accident. This was treated operatively, as described above at [11].

15. The plaintiff experiences disability and ongoing pain from the fracture of his left femur. He is unable to walk for other than a short distance without the assistance of a frame. He experiences severe pain (9/10), on average, three days per week on account of his left hip. He is never pain free. The pain in his left hip, particularly at the site of the insertion of the plate and screws, often prevents him from sleeping. He experiences pain and stiffness in his left thigh. The plaintiff’s pain from his hip is worse in cold weather. He has a scar at the site of the insertion of the plate and a further scar on his left thigh at the site of the insertion of one of the screws.

16. Dr Alttahir, an orthopaedic surgeon, was reviewing the plaintiff with respect to his hip, post operatively. After the hip fracture had healed, Dr Alttahir recommended that the plates and screws be removed. The plaintiff has not been able to afford this surgery.

Pubic ramus

17. It was further discovered, at the Liverpool Hospital, that the plaintiff had sustained a fracture to his left inferior pubic ramus.

Shoulders

18. Dr Rosenberg noted that, after his operation, it became apparent that the plaintiff had “significant problems” with his shoulders. He was experiencing bilateral pain and lack of movement. In February 2023, an ultrasound of the plaintiff’s left shoulder showed a supraspinatus tear and subacromial bursitis. These findings were confirmed by an MRI. He was treated with an injection in March 2023, which provided relief from his pain, but the benefit was temporary.

19. Subsequently, the plaintiff had an MRI of his right shoulder, which showed some supraspinatus tendinosis. He saw Dr Dave, an orthopaedic surgeon, in August 2023, and Dr Dave noted bilateral impingement. Dr Dave’s view was that his findings suggested adhesive capsulitis. Dr Dave administered hydraulic dilatation and injection of steroid, first to the left shoulder and subsequently to the right shoulder. The plaintiff experienced some relief of pain in his shoulders on a temporary basis, but minimal improvement with respect to range of movement.

20. Dr Rosenberg said that, as of October 2025, the plaintiff was experiencing his shoulders as “most uncomfortable, with limited elevation”. In the course of his evidence, the plaintiff indicated that he could raise his arms no higher than a level below his shoulders. His range of movement is significantly impaired. He formerly had a full range of movement. He experiences pain in his hands.

21. The plaintiff said, in evidence, that he continues to experience pain in his shoulders. The left side is worse than the right side. His shoulders are never pain free, but the level of pain fluctuates from 8/10 to 2/10. His shoulder pain has a negative impact upon his ability to sleep.

22. The plaintiff was able to carry shopping and other loads prior to the accident. Subsequently, he has been unable to carry anything heavy. He is presently unable to carry a two litre bottle of milk. Attempting to do so causes pain to radiate up his shoulder.

23. The plaintiff is unable to put his arms behind his back, which is one of the reasons he needs help to shower.

Back

24. The plaintiff experiences pain at waist level in the middle of his back. The intensity of the plaintiff’s back pain can vary depending upon the way he moves. Certain movements cause him to experience strong pain. There is always an ache in his back.

25. The plaintiff’s back pain affects him when he prays, which he does five times per day.

26. The combined impact of the injuries sustained in the accident impedes the plaintiff in dressing, toileting and showering. He needs assistance for all of these activities, which is presently provided by his wife or his son. Prior to the accident, the plaintiff would frequently walk to nearby shops several times per day. Now, he is often unable to accompany his wife to the shops. He is unable to garden or mow the lawn. His ability to perform domestic tasks is severely impacted.

Dr Alttahir’s summary

27. In his report of 15 April 2025, Dr Alttahir said:

[Mr Al-Azam] was reviewed in my clinic with multiple ongoing orthopaedic conditions that are chronic, structurally irreversible, and result in significant long-term disability. His injuries affect the hip, pelvis, shoulder and both feet, and, despite sustained conservative management and on-going care, his prognosis remains poor with no expectation of full recovery or return to functional employment. …

The most limiting issue remains his left hip and pelvis, where he has ongoing pain and reduced mobility following a displaced subtrochanteric femur fracture. Imaging confirms bony union, but he has prominent hardware and heterotopic ossification causing mechanical impingement and persistent groin pain. He also has a malunited pelvic ring injury, which has altered his gait mechanics and contributed to chronic deconditioning and early hip arthritis. These structural problems are permanent and, even with further surgery to remove the hardware and debride the ossification, he is unlikely to regain pain-free function. His hip pathology has led to enduring gait abnormalities and reduced weightbearing tolerance, which severely limits his ability to walk, stand or perform physical tasks.

[Mr Al-Azam} also has a severe left shoulder injury, with MRI confirming a complete, retracted, supraspinatus tear, early muscle atrophy, bicipital tenosynovitis, subscapularis tendinosis, and a degenerative SLAP tear. These finding are consistent with chronic and irreparable rotator cuff pathology. He has already trialled corticosteroid injection with no improvement. … the extent of structural damage makes surgical repair complex and the prognosis guarded. His shoulder function is significantly impaired with reduced ability to lift, reach, or use the arm in any overhead or repetitive capacity. …

Lastly, he has bilateral foot and ankle problems, including chronic tibialis posterior tendinopathy, plantar fasciitis, hindfoot valgus deformity, and early Achilles tendinopathy. These conditions are biomechanical and degenerative, confirmed on imaging and clinical examination. Despite the use of offloading strategies and a trial of conservative therapies, his pain persists and affects both feet. …

Taken together, [Mr Al-Azam’s] muscoskeletal problems are chronic, multifocal, and involve both upper and lower limbs. These conditions are not amenable to curative treatment, and his capacity to engage in physical work or independent function is permanently impaired.

Psychiatric impacts

28. Prior to the accident, the plaintiff suffered from Post Traumatic Stress Disorder (‘PTSD’) and Major Depressive Disorder (‘MDD’) which arose from his experiences in prison and in the refugee camp.

29. From 2022 to 2025, the plaintiff consulted with Dr Alhajali, a psychiatrist. Dr Alhajali treated the plaintiff for PTSD and Chronic Pain.

30. Dr Abu-Arab, a Clinical Psychologist, provided a report dated 6 December 2025. Dr Abu-Arab saw the plaintiff for six consultations and referred him to a Cognitive Behavioural Program. Dr Abu-Arab described the plaintiff’s accident and said:

Mr Al-Azam reported pain in the affected areas. His pain is present every day for most of the day and it causes significant distress and impairment in social, occupational and day-to-day areas of functioning. His pain affects his sleep and his ability to practice his hobbies and household chores. He feels sad every day for most of the day. He lost interest in pleasant activities. He feel helpless, hopeless, tired, lazy and unmotivated for most of the time.

As a result of multiple traumatic events, he started experiencing post-traumatic symptoms, including bad dreams, preoccupation with thoughts related to earlier traumas, insomnia, worsening in memory and concentration, being agitated with a low frustration tolerance, being jumpy and easily startled.

Diagnosis: From a psychological perspective, based on information available to me and my clinical observation, I came to the conclusion that Mr Al-Azam qualifies for the diagnosis of Chronic PTSD, Major Depressive Disorder and Chronic Pain according to the Diagnostic and Statistical Manual of Mental Disorders, DSM-V-TR.

31. I accept that the accident has caused an aggravation of the plaintiff’s pre-existing PTSD and MDD and has also caused Chronic Pain.

Damages

Factual matters

32. The plaintiff submitted, and I accept, that the following factors should underlie the award of damages:

| DOB, age | 15 June 1963, 62 | | DOA | 2 December 2021 | | Life expectancy, multiplier | 22.5, 703.8 | | Weeks since accident | 220 | | s 15 rates: As at 2 December 2021 Current Average | $33.43 $39.82 $36.63 |

Non-economic loss

33. Damages are to be assessed in accordance with s 16 of the Civil Liability Act 2002 (NSW).

34. The plaintiff’s physical injuries, the aggravation of his PTSD and MDD and the onset of Chronic Pain are all relevant to an assessment of the severity of his non-economic loss arising from the accident. I accept the plaintiff’s submission that the severity of his non-economic loss, as a proportion of a most extreme case, is 40%.

35. The applicable maximum amount of damages which may be awarded for non-economic loss in this matter under s 16 of the Civil Liability Act 2002 is $804,000.

36. The plaintiff will be awarded damages for non-economic loss in the sum of $321,500, which is 40% of $804,000, rounded to the nearest $500 pursuant to s 16(4) of the Civil Liability Act 2002.

Domestic Assistance

37. In his report, Dr Rosenberg says that the plaintiff needs help with self-care, washing, dressing and undressing for one hour per day. He also requires “domestic assistance”, which I take to include shopping, cooking, cleaning, gardening and laundry for two hours per day.

38. In the plaintiff’s submissions, it is noted that he would have required significantly more care when he required a wheelchair post-operatively.

39. The plaintiff claims $145,055 as compensation for past personal and domestic assistance, calculated for 18 hours per week at $36.63 per hour for 220 weeks. This sum will be awarded.

40. The plaintiff further claims the sum of $464,043 for future personal and domestic assistance, calculated for 18 hours per week at $36.63 per hour for 703.8 weeks. This sum will be awarded.

Out of pocket expenses

41. The plaintiff is not able to prove his out of pocket expenses for past medical expenses related to the accident, though they have been significant.

42. Dr Rosenberg, in his report, says that the plaintiff needs further investigation. At the least, he suggests standing x-rays to the lumber spine and an MRI of the lumbar spine. Further, Dr Rosenberg recommends a Technetium Bone Scan with SPECT views, focussing on the lumbar spine and pelvis. He recommends an x-ray of the plaintiff’s pelvis and left hip. He recommends referral to an orthopaedic surgeon who specialises in shoulders. Dr Rosenberg also recommended that the plaintiff have physiotherapy for his back and shoulders.

43. It was the plaintiff’s evidence, which I accept, that various doctors have suggested that he have further surgery, including the removal of the hardware in his left leg/hip and arthroscopic surgery for both of his shoulders.

44. The plaintiff consults his GP approximately monthly and takes several types of medication, relating to the impact of the accident, evidence of which has been provided.

45. The plaintiff will continue to see Dr Alhajali.

46. The plaintiff claimed the cost of the surgery suggested, and future fees associated with the accident including psychiatric treatment and medication. The figure applicable is not able to be calculated with any precision, as further investigation is needed. The plaintiff has not been able to afford the investigation he needs. In these circumstances, it is appropriate to arrive at a figure which represents a buffer against future medical care and treatment, which will clearly be substantial.

47. It was submitted that the appropriate figure for future out of pocket expenses is $75,000 and I accept that submission. There will be an award of $75,000 on account of future medical, hospital and pharmaceutical expenses.

Orders

48. The following orders will issue:

49. Judgment for the plaintiff against the defendant in the sum of $1,005,598.

50. The defendant is to pay the plaintiff’s costs of the proceedings.

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