Al Maz v Al Mousawe t/as Trendy Hair

[2019] NSWDC 930

District Court

New South Wales

Medium Neutral Citation:

Al Maz v Al Mousawe t/as Trendy Hair [2019] NSWDC 930

Hearing dates:

22 August 2019
26 August 2019

Date of orders:

26 August 2019

Decision date:

26 August 2019

Jurisdiction:

Civil

Before:

Montgomery DCJ

Decision:

1. Judgment for the plaintiff against the defendant in the sum of $629,421.07.

2. The defendant to pay the plaintiff's costs of the proceedings.

Catchwords:

Torts – Negligence – Public Liability – Ex Parte Assessment of Damages

Legislation Cited:

N/A

Cases Cited:

Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139

Penrith City Council v Parks [2004] NSWCA 201

Texts Cited:

N/A

Category:

Principal judgment

Parties:

Suzie Al Maz (Plaintiff)

Ali Al Mousawe t/as Tredy Hair (Defendant)

Representation:

Counsel:

Mr Greg Hickey & Ms K Balendra (Plaintiff)

Solicitors:

AJB Stevens Lawyers (Plaintiff)

File Number(s):

2018/00311238

Publication restriction:

N/A

Judgment (EX TEMPORE)

1. Judgment in the matter of Suzie Al Maz v Ali Al Mousawe, Trading As Trendy Hair.  These proceedings are before the Court today for assessment of damages only.  I have delivered a short interlocutory judgment in which I was satisfied of the defendant's absence for the purposes of UCPR 29(7), and the matter has proceeded on that basis.

2. At the outset, the Court expresses its appreciation for the assistance received from experienced and expert Counsel, who opened with an acknowledgment of his duty, being his first duty to the Court in the circumstances of there being no opponent, not to take advantage of that situation. He presented the case in a plausible and reasonable manner based upon the evidence available.

3. In regard to the evidence, I would firstly acknowledge that the plaintiff presented as a frank and open witness.  Indeed her description, as a young mother of three young children, of the time taken to clean things such as bathrooms, was in my view evidence which plainly painted her as a witness of credit. There was no attempt at exaggeration. Having considered the expert medical evidence, to which I will come, the same might be observed of her attempts to regain employment, and indeed this in the continuing world of being a young mother of three young children in circumstances of her significant injury to her ankle region and lower or distal right leg.

4. On first flush, the matter might have appeared as a straightforward assessment involving a low leg fracture. It is an injury which has involved both the tibia and the fibula, as well as the bones of the ankle. Most importantly, it involves the articulating surfaces of the joint. I will come to that in detail.

5. The plaintiff was born in January 2016 and attended a College to year 10. Between 2001 and 2006, she pursued her chosen trade of hairdresser. In that period, she completed with one employer her apprenticeship of trade and thereafter followed the best work conditions and remuneration she could whilst employed.

6. She married in 2007, but that relationship lasted only about three years.  It was, as she describes it, a physically abusive relationship; however, it produced her three children, to whom she is plainly devoted and appropriately directed as their mother. The fortunate circumstance for the plaintiff following the break‑up of that marital relationship in 2010, has been the support received from her mother. Her mother works as a financial advisor and has provided ongoing financial support, but also motherly support.  There is no evidence that the plaintiff has re‑partnered.  She fends for herself in the support of her children with that assistance from her mother.

7. Her children are now aged as follows: Mohammed 12 years; Aisha 10 years and Ali 8 years. The oldest and youngest, being boys, each are challenged psychologically.  Mohammed suffers from anxiety and depression, ADHD, Oppositional Defiant Disorder and High Risk Asthma. He is presently educated in a special school. Ali suffers from ADHD and Oppositional Defiant Disorder, as well as anxiety. He is presently in mainstream school, but that is a situation which is being reassessed as he matures.

8. I return to the assistance provided by the plaintiff's mother. This included the payment of a bond, and to the extent that the plaintiff is unable to pay it, rent over the duplex three bedroom, three bathroom premises, which also has a small garden. This is the home of the plaintiff and her children.  This home acquired following the breakup of the marriage and before the injury, remains their home.  The plaintiff receives social security, and I will come to her attempts to work since the time of her injury, but her mother maintains the roof over the head of her family and has provided security of residence.

9. Mohammed was diagnosed with High Risk Asthma at three months. He requires ongoing treatment in regard to it. As now recognised in our community and understood, if not serviced by proper and swift treatment, this condition has most serious and indeed potentially lethal sequelae. Mohammed has received transport to and from school, in addition to weekly psychological counselling from the age of five years, other medical assistance through Medicare; however, the plaintiff has requested, and her mother has provided, to the extent that the plaintiff, has been unable to do so, the cost of his medical attention.

10. The extent of his needs are such that the plaintiff receives Social Security as a Carer, as well as a Supporting Parents' Pension. In addition, the plaintiff has recently made an application for assistance under the National Disability Insurance Scheme and expects to receive her first response to that application within about a month.  In my view, this is relevant, because it may assist her in the future in regard to the significant interruption that she has on occasion experienced in her attempts to regain her place in the workforce over the period since February 2018 when, as these facts will come to, she was first weight bearing.

11. I say this not in diminution of her claim or entitlement for economic loss damages, but rather to the opposite. There is indeed the possibility that but for her injury, and attending to her son Mohammed's needs, she might have been permitted greater opportunity to have continued earning in her trade as a hairdresser to date. It should be acknowledged that, in addition to her trade as a hairdresser, the plaintiff worked for her mother in her mother's financial industry business four hours a day on computer based activities, four days per week between 2010 and the time of the injury.

12. In court, the plaintiff presented with flat effect and was yet concise, cooperative and frank. Having read the expert psychiatric evidence, her state of ongoing depression as described by the doctors is reflected in her presentation of flat effect. Indeed, orthopaedic specialists commented on their observation of her depressed effect. They do so of course without it composing an element of their orthopaedic assessment, but rather in the precise description of the plaintiff's presentation of symptomatology.

13. Moving firstly to the plaintiff's pre‑existing and continuing psychiatric state, it is apparent from the report of Dr Jeff Bertucen dated 22 November 2018 (Exhibit B), particularly at p 38 in answer to question 9, that the plaintiff's psychology does not prevent her from returning to fulltime work forthwith in an occupation which is less likely to aggravate her physical symptomatology. Dr Bertucen wrote, "I consider that she would be capable of fulltime employment, as long as this was in an environment where she was able to vary her position at will and sit comfortably".

14. The plaintiff's entitlement for damages consequent of this physical injury is not to be diminished on the basis of a pre‑existing psychological impairment. I further add that this is consistent with the plaintiff's pre‑injury history of working, which I have already described.  The plaintiff describes herself as healthy pre‑injury, but overweight and able to run. She used the words "had an energy", and further that she, "wasn't in pain".

15. On the presentation of the plaintiff before me and having considered the medical literature contained in Exhibit C, as well as the plaintiff's chronology, which her Counsel assured me she had adopted, Exhibit A, I accept those descriptions as accurate.

16. The plaintiff impressed as a compelling witness and, to the very limited extent that a court has the opportunity to make this assessment, she gave the impression of a dedicated person who is, despite her psychology, of great energy. and lives a life with ongoing pain albeit with that pain being well medically supported.

17. This case, considered in the absence of the presentation of the defendant, has further hallmarks of being legitimately presented, if I may use the word "legitimate" in that way. It includes, for instance, records of long‑term attendance with GPs, before and after the injury.  It includes the clinical notes of hospitals and of general practitioner surgeries.  It includes the notes of the surgeon contained in exhibit C.  That doctor was orthopaedist Dr Jacob Kaplan.  On 27 July 2017, the plaintiff was at the defendant's premises.  She attended there to get her son's hair cut.  She paid for that service.  On stepping out of the shop, she slipped off the step and heard her foot snap.  It was her right ankle.  She was conveyed by ambulance to St George Hospital, where she came under the care of Dr Kaplan.  Following transfer to St George Private Hospital, she underwent significant surgery.  The surgical report by Dr Kaplan within Exhibit C is dated 2 August 2017.  Noting the whole of that report, I include in these reasons the following description of procedure, which even to a lay person indicates the significance of the injury.

"The fibula was reduced and fixed with a lag screw one‑third, semi tubular plate.  This reduced the posterior malleolar fragment, and anterior approach to the distal tibia and ankle was performed.  Intra‑articular fracture was reduced, and fixed with a synthes anterolateral locking plate.  Separate lag screws were used to compress the large medial fragment and reduced the articular surface."

18. These procedures, as I have said, involved both the fibular and the tibia. Exhibit D in the proceedings comprises of photographs at pp 24 to 32 of the plaintiff court bundle, which show the post‑operative swollen right foot and the large surgical scar secured by staples, extending from what would appear to be about ski boot height up the tibia, down to the dorsum of the foot, and then laterally a scar of about 12 centimetres around the outside of the ankle, generally understood to be in the region of perineal tendon.

19. The chronology, Exhibit A, was tendered with the support of a lever arch folder of clinical notes. As I have said, Counsel for the plaintiff presented the plaintiff's case on the basis of taking the Court to that which might assist it, whilst also representing the plaintiff's interest to the fullest and satisfying his obligation of candour to the Court in the circumstances of there being no opponent.

20. On that basis, MFI 3, being the plaintiff tender bundle, contains within it each of the clinical notes from which counsel has collected the references contained in the chronology, Exhibit A.  Those clinical notes are admitted as included in Exhibit A.

21. The plaintiff remained in St George Hospital after the open surgical reduction of her fractures until discharge on 5 August 2017.  On discharge, she was borne by a wheelchair, with her right leg in a cast.  The cast remained for about three months.  Thereafter, she was non‑weight bearing with crutches, partially and then a boot with crutches, and partial weight bearing up until February 2018. I have taken this summary from the plaintiff's Exhibit A chronology and I have observed it to be entirely consistent with the analysis of the clinical notes by the expert orthopaedists in their medico‑legal reports.

22. On 29 September 2017, two months post injury, the plaintiff was sufficiently recovered to commence physiotherapy.  Her physiotherapy continues.  The expert medico‑legal report evidence puts beyond doubt her need for physiotherapy undertaken to date, and her future need.

23. In October or November 2017, the plaintiff attempted to return to work at her mother's business, as a credit analyst; but it was difficult because the job also required walking. Since her injury, as she put it today in Court, she has hated herself because of her inability to engage life with the energy with which she had before and to achieve things in her life, such as being a good mother, as she had done. Because of these things, but in particular, noting Dr Bertucen's assessment of her physical disability consequent of the injury, she was unable to continue in the work.  Indeed, her mother had to employ somebody else. The position, on the evidence of the plaintiff today, has been filled.

24. On 16 December 2017, the plaintiff injured her left shoulder in a motor vehicle accident. Prior to this injury, she had problems with her left shoulder.  Indeed, it would dislocate on occasion. She has always received treatment for it. It is not an impairment which, on the evidence before me, causes any affectation of damages for the subject injury. Her injuries from the motor vehicle accident resolved to the extent to which I have already recounted; i.e. the plaintiff was able to work fulltime before her injury, despite having a pre‑existing condition in her left shoulder. I would add to this that, in her evidence describing her attempts to regain employment since this injury, she made no complaint of her left shoulder impairment.

25. As the frank witness she is, willing to volunteer things not precisely in her interests in her pursuit of damages, I accept that she did not experience left shoulder disability in that work. This is particularly important given that she attempted, so far as her employers permitted to conduct her hairdressing whilst sitting on a stool. This means, of course, that to the extent that she sat on a stool, she elevated her arm. In addition to this, she was able to stand when required and cut hair, and it is the worldly experience of all of us to observe hairdressers, moving their arms as they do, when we have our own hair cut.

26. I am satisfied that the left shoulder injury pre‑existing the subject injury, and the further injury to the left shoulder suffered on 16 December 2015 is not a basis for diminishing damages in this case.  In her evidence, she said that after several months of treatment, she had recovered completely from the motor vehicle collision.

27. The plaintiff generally attends the Miranda Medical Centre, because there she can receive treatment from general practitioners for herself and for her children. It is convenient because her son can be treated there. It is also convenient because of the chiropractic treatment which she has received from Mr Mikulic, Chiropractor, whose report is Exhibit E, and ongoing physiotherapy which is located there as well. She continues to attend Miranda Medical Centre for those services.

28. Lest there be some concern as to the involvement of a chiropractor; he treats her for back pain predominantly described as lower back pain. That treatment is a supported course consequent of the subject injury because of unevenness of gait and limp found by medico‑legal reporters: Occupational Physician Dr Andrew Porteous, whose report is dated 12 December 2018 and Orthopaedic Surgeon Dr James Bodel, whose report is dated 11 December 2018. Reference to those reports completes identification of the expert opinion evidence contained within Exhibit B.

29. The plaintiff continues to receive physiotherapy monthly because she cannot afford to go weekly as she did before. She does receive a benefit from that treatment. It is supported by the medico‑legal experts, Dr Porteous and Dr Bodel.

30. The plaintiff says that her right foot symptoms are worse in summer when it is hot but persist also when it is really cold. By this, I assume she meant predominantly in winter. Her description of restrictions given in the courtroom is generally consistent with the findings on examination of Drs Porteous and Bodel, including standing limited to only up to 30 minutes, after which time she requires rest. She is limited in walking; however, she does it every day with pain. As she walks, the pain becomes more severe. At the end of the week, because of activity, her pain is again more severe, indeed then causing her discomfort to perform her own daily personal care. She describes her pain level as severe after 25 minutes of walking.

31. When the weather is hot, her ankle swells. When the weather is cold, she senses what she described as a severe, ugly pain, "felt in my bones". Among the medications which she takes, the constants are now Mobic, which is acknowledged as an anti‑inflammatory medication, and Endone for pain relief. She takes one Endone tablet in the morning, and half a tablet in the evening. The Mobic she takes only about once per week, because she is concerned not to take more medication than is necessary. She is concerned for her ongoing health and she receives advice in this regard by her treating GP. Her sleep is disturbed and Dr Porteous indeed reported that from time to time she has taken medication in order to maintain sleep. Sleep disturbance comes from pain.  She sleeps with a pillow under her foot.

32. The plaintiff described her pre‑injury self as living in the two storey duplex, which is their home, and which has a slope, or a hill, from the garage to the entry. The property, as I have said, has three bedrooms, three bathrooms and with a garden and a lawn. She lives alone with her three children.

33. Pre‑injury, she did all of her domestic tasks, including vacuuming every day. In this regard, her maintenance of home is to be considered in the context of the high risk asthma of her son, Mohammed. Because of the need to maintain a dust free environment, the home has no carpet. When asked how long she took to vacuum the home of three bedrooms and three bathrooms which did not have carpet, she answered 15 minutes. Of course this is a very reasonable estimate for someone who is energetic and fit vacuuming a three bedroom and three bathroom premises; but it is also an example of that which I referred to as her giving evidence without taking the opportunity to exaggerate. The opportunity to exaggerate must have been obvious to her, there being no counsel or legal representative for the defendant at the bar table.  She knew that she would not be cross‑examined. An estimate of 15 minutes in worldly knowledge of any of us should be accepted as accurate but in addition, as I have said, she presented as a person giving acceptably measured evidence.

34. Indeed this continued. To cook for herself and three children pre‑injury, she estimated about one hour per day.  To do the laundry, she said about one hour, over several hours, while she was doing other activities.  When asked about ironing, again, she took no advantage to exaggerate.  Her answer was, "Minimal.  Usually the dryer gets out the creases of the clothing".

35. The two boys share a bathroom, which she mopped every day.  She also mopped the kitchen, the lounge, the dining room and Mohammed's room. She estimated that mopping the rest of the house from the bathroom had to be done perhaps two days a week, and took only 15 minutes. In addition to mopping it, she cleaned the boys' bathroom two to three times a week, and this took 40 minutes to one hour per week. When it came to the bathroom she shares with her daughter, she estimated that it was cleaned only once a week and took only five minutes to clean.

36. Pre‑injury, she shopped every Sunday and gave the very realistic estimate of shopping taking only about two hours. When it came to gardening, she simply answered that, prior to her injury, gardening was her hobby and from this it can be accepted that she performed all of her own gardening duties.

18. The plaintiff frankly said, and the medical evidence supports it; she never recovered to her pre‑injury physical state. Since injury, her mother has provided cleaners. The plaintiff has not vacuumed or cleaned the bathrooms. She has done the laundry only if her mother could not come to assist her. She has not performed the mopping. She has not performed the shopping. The shopping is either performed by her mother or her ex‑partner, who is not her ex‑husband.

19. Her mother provides paid assistance, which started the day she was discharged from hospital in a wheelchair. Indeed, her mother paid for a fulltime carer for three months after that discharge. She understands the mother paid the carer $100 per day. Post‑injury, her mother has also paid for cleaners to attend every week. When three cleaners attend, they take about two hours to perform their duties around the whole house. If only one or two come, they may take up to four hours. For this service, her mother pays $150 per week. A gardener has been retained, who comes once per month for approximately one hour and that includes mowing the lawn. Over time, his fee has risen from $25 to $45. His fee can be averaged at $35 for the purposes of this damages assessment.

20. Benefits from Centrelink, to which I have referred, including the Supporting Parents’ Pension and the Carer Benefit total $1,750 per fortnight. However, doing the best she can to pay her own rent, when she can afford it, that cost is $1,200 per fortnight leaving only $550.  I do not need to repeat that her mother provides significant financial support.

21. In terms of economic loss, the plaintiff presented as somebody who was interested in and loved her work. Indeed, her evidence was, and I accept, that she loves working; and when she did work post‑injury, she tried to ignore her pain but found that she was really not able to maintain fulltime work. I repeat that this incapacity to be the person that she was and more precisely, as she put it, "I cannot be the mother I used to be", causes the plaintiff to “hate” herself, as she describes it.

22. The plaintiff said that she would definitely pay for the services which her mother has been providing if she was able to do so and she realistically noted that her mother is not getting any younger and still comes to the house most days, but as the future arrives, is likely to be less able to keep up that level of assistance.

23. The children are at school between 9am and 3pm, and the plaintiff would prefer to work in duties which she is able to do in that time.  The jobs which she has tried to date are all as a hairdresser.  She does not limit her future options to that.

24. In 2018, she tried various hairdressing salons, and her evidence describes her attempting to locate a work environment in which she was able to perform and maintain employment, given her significant physical restrictions.  She worked first at Blondes and Brunettes at Lidcombe, Bankstown, Miranda and Campbelltown.  She managed in that employment to work four months, up to eight hours per day; however, the eight hours per day occurred when she had good days from her symptoms, and she would only average about three of those full days per week.

25. In that work, she was able to sit down when performing her duties, but eventually her employer informed her that she was "unreliable" in the sense that, because of her pain, she did not work full days all of the time. The plaintiff freely conceded that she had medical appointments for her two boys as well; however, from her evidence it was fair to gauge that her need to attend doctors for her own ongoing medical care which, as I say, is supported by the expert medico‑legal evidence, was the cause of interruption for her work. I gained the impression that the medical requirements of care of her children were not such that, but for her own injury, she would have been "unreliable" as an employee.

26. She then worked at Ooh‑La‑La at Bankstown for two weeks fulltime, but the salon was too big, and the employer could not accept the plaintiff sitting down.  She thought it was unprofessional and the plaintiff conceded that a hairdresser cannot do the job properly sitting down the whole time. By mutual agreement, that employment ended.

27. Next, she worked at the Colosseum at Miranda four days per week, but only lasted about a week. Following that, she worked with Madam Beauty at Balmain for six or weeks as a receptionist. Obviously, this job meant that she was not on her feet so much; however, because she was not moving around enough, her back pain and hip pain was worse. Those symptoms again caused her to be seeing doctors and she was in pain. Accordingly, albeit she had a sympathetic boss, she realised that the boss needed to have an employee who was not uncomfortable and complaining. That employment ceased.

28. In 2019, she worked at Hair in the Square at Bankstown for two months. This was six hours per day, three hours per week. She could sit to work. The job got too busy, which meant she did not sit enough on the stool, and had to stand too much for her ankle. She also suffered back symptoms from the difficulty of gait which the injury imposed upon her and which is described in the expert medico‑legal literature. Her employer expressed the unsympathetic and disappointing observation that the plaintiff cannot work anymore.

29. Presently, she has given work a break for a while because emotionally she does not want to get sacked anymore. She does not want to go to the workplace and fail anymore. This is, from my above description of the plaintiff, a self‑perception which I consider reasonable given her attempts. In this context, she wants to go on working in a job which she can find that provides an environment permitting her to be useful and maintain fulltime employment.

30. Against self‑interest, she freely volunteered that, because she is a carer to the understanding of Centrelink, she is not compelled to seek employment. This was, when I say "volunteered against self‑interest", an answer to a question from her Counsel that she was forced because she was in receipt of Centrelink payments to seek employment. Overall, her evidence is consistent with a person who has attempted to regain a place in the workforce.

31. When I asked her about her future work prospects, she answered that she hopes that with treatment her symptoms decrease over time and that her leg, in particular, will improve. She made the very real comment that she would love to get back to routine and a stable lifestyle. She said that she has not given up on achieving that. She has only known hairdressing and her mother's line of financial work, where she performed computer financial assessments and engaged with clients. She does not know what other work is available to her, but if something suitable could be found, she would try it.

32. In my assessment, it is patently obvious that the plaintiff will not remain unemployed. I note that in the Schedule of Damages prepared by her Counsel, her future economic loss is properly put on a lump sum buffer basis. It is difficult to assess more accurately, for the purposes of s 13 of the Civil Liability Act, the plaintiff's future economic loss.

33. I will proceed according to the principles set out in Penrith City Council v Parks [2004] NSWCA 201. Taking into account that the plaintiff is a qualified hairdresser with a pre‑injury history of employment, a post‑injury history of attempts to achieve employment and also her love of work; it is apparent that she will work within her restrictions when she is able to find suitable work. Quite obviously her restriction is significant because ambulatory capacity is such an important feature of so many job placements. For instance, the plaintiff would not be able to work in a location of uneven ground, in a location of sloping ground, in a location requiring her to engage with steps, such as in an office, where she was required to move frequently between floors. She is only 33 years of age and her symptomatology, according to the expert medico‑legal opinion, has the possibility of becoming worse because of the onset of arthritis given the fracture of the articular surfaces of the joints.

34. In his report of 12 December 2018, Dr Porteous described the plaintiff's then condition as involving chronic right ankle and full leg pain, which is four out of ten on a pain scale after about 20 minutes of walking or standing. He stated:

"With sitting, the ankle pain is generally two out of two to three out of ten.  At the end of a long day, doing lots of intermittent standing and walking, it can be eight out of ten or nine out of ten.  She has to avoid lifting, carrying, crouching and kneeling, and walking up and downstairs, as these increase her symptoms in the ankle significantly."

54. He recorded that in the lumbar region she gets pain rated between one out of ten and seven out of ten, increasing with standing, bending, lifting or sitting for more than 30 minutes. For pain relief, she was taking Mobic once per day, Endone; 5 milligrams in the morning and 2.5 milligrams at night, and Nurofen or Panadeine Forte, once or twice most days. The plaintiff reported constantly disturbed sleep with pain.  He observed her to have ongoing depression and general anxiety, anxiety about steps or ramps and that she suffered nightmares about those things.

55. On examination, he observed her significant scarring. I have described the photographs of her post‑injury scarring and the medico‑legal reports support significant, permanent scarring. The scarring is on the right anterior and the lateral ankle areas. Laterally, there was a 12 centimetre scar, which had keloid and was distinctly a different colour. In the anterior ankle and foreleg, she had a 19 centimetre linear scar with an area at the junction of the proximal four‑fifths and distal fifth, which was 3 x 3 centimetres and very dark colour. She stated, "I hate scars". Quite obviously this is accepted.

56. The plaintiff is a woman who has undergone the gastric surgery such that she has lost 55 kilograms in weight after the date of this injury. She went through this procedure in the hope that reduction of weight would relieve her symptoms. Unfortunately, she has not received a reduction of symptoms, but as an individual who takes pride in their appearance, that she hates her scars is to be accepted. Indeed, any person interested in their appearance would hate to have scars of such significance.

57. Dr Porteous’ examination also found in the lumbar spine; 33% of expected extension, 25% of expected flexion and 25% to 24% of left lateral movement with 30%, 31% and 31% of right lateral movement measured with a goniometer. He observed guarding and loss of curvature, but there was no spasm.

58. In relation to her ankle, he found a range of motion of 10 degrees of planter flexion, six out of 15. He also found 10 degrees of dorsal flexion, three of seven.  She had inversion of 10 degrees, while there was eversion of 10 degrees. There was dysaesthesia in the entire right foot, slightly more prominent in the dorsal aspect than the plantar aspect. He observed her to be limping with right ankle pain.

59. For future treatment, Dr Porteous assessed and supported a need for treatment from a multidisciplinary chronic pain clinic for a course of treatment estimated at $4,500 to $12,000 after assessment by a chronic pain specialist, estimated at a cost of $2,500. He considered her to have a reasonable need to see an orthopaedic surgeon every 6‑12 months at $850 a visit to monitor progress and to address any setbacks. He considered it reasonable that the plaintiff have further surgery within the short to medium term due to increasing pain on the right ankle up to and including an ankle replacement or fusion at a cost of $20,000 to $35,000. He supported regular physiotherapy to maintain as good a function and strength in the right ankle and foreleg as possible with weekly treatments at $90 a visit.

60. In regard to her chronic back pain, he supported ongoing treatment from her chiropractor and exercise physiologist. Dr Porteous supported the plaintiff’s need for exercise, which he described as "probably in a pool with a brace on the right ankle and not weight bearing on it", attending twice a week over 10 weeks at a cost of $10,000 to improve function and core strength. Dr Porteous also supported her need to take pain relief long‑term at $45 per month. He estimated that she would need to see a general practitioner two to four times per year in the long‑term at $110 a visit. He supported an ergonomic assessment at home, which would cost $2,500.

61. In his assessment, the plaintiff was restricted from frequent or constant standing or walking with regard to the right ankle and I have already described the other disabilities to which he has gone. He considered that she requires a situation where she is able to regularly get up and stretch and exercise her spine. He found her to be incapacitated from working as a hairdresser and incapacitated from undertaking the regular visiting of clients as was required in her job in the provision of financial services assisting her mother. In his description, the hairdressing employment she was undertaking at the time of the assessment was sheltered, and he stated that in reality the plaintiff:

"Will, as a result of the injuries from the accident, have significant difficulty securing any 'non‑sheltered' work in jobs.  She has training, experience and qualifications, as a result of the injuries from this accident, because of her substantially reduced capacity and restrictions, and this will remain the case for the foreseeable future."

62. In relation to domestic assistance, he said that the plaintiff cannot do domestic work without aggravating her conditions.  She will be restricted in cleaning, some of the vacuuming and mopping, some of the cooking, some of the making of beds, some of the spring cleaning, such as washing the windows, carrying some of the heavy shopping, hanging up some of the washing, carrying heavy washing, moving heavy furniture, and she is restricted from outdoor home maintenance, including from gardening and from doing the lawns.

63. These observations are at p 9 of his report and in para 17 on that page. I refer to these observations whilst bearing in mind what was said by the New South Wales Court of Appeal in Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139 acknowledging that domestic assistance is a specialist area for occupational therapists and not for orthopaedic surgeons; however, I do not take that opinion on its own as more than corroborative of the evidence given by the plaintiff in the witness box, which I have accepted.

64. I turn to the report of Dr Bodel of 11 December 2018, but do not need to go to it with the detail to which I have done in relation to Dr Porteous' report because I find no significant inconsistency between the reports. Dr Bodel noted tenderness on palpation during examination of the lumbosacral junction on the left side, guarding in that area and that she reaches forward with hands to knees only, with increasing back and left buttock pain at that point, and also on extension. He found reduced lateral bending on the right. He commented on the extensive scarring and also found, on examination, restriction of the ankle limited on the right‑hand side to zero degrees of ankle dorsiflexion, 20 degrees on the plantar flexion, 20 degrees on inversion and 10 degrees on eversion. The plaintiff's movement of her left ankle was normal.

65. At the bottom of p 5 at number 4, Dr Bodel says:

"Her prognosis for the ankle in particular is guarded.  Her fracture is intra articular, and there is an increased risk of posttraumatic osteoarthritis.  She will develop increasing pain and stiffness in the ankle over time.  She also has mechanical back ache, and greater trochanteric bursitis, and I do hope that the greater trochanteric bursitis will settle over time.  She will need ongoing treatment to manage her pain."

66. On p 6 at number 6, he found a direct causal link between the episode of injury that occurred and the ongoing disability which he has reported.  At number 8 on that page, he found the plaintiff fit to return to work on a part‑time basis.  She has also managed to reduce her weight significantly to improve her physical fitness and will enhance her long‑term outcome.

67. At number 11 on p 8, his expression of assessment of future operative treatment, has omitted the word "not". The paragraph should read:

"She does [not] require further operative treatment for any of the injured areas at this time, and hopefully that can be avoided in the future. There is a possibility that she will need to have the plate and screws removed from the ankle, and the approximate cost of that would be in the order of $6,000. In the distant future, there is also an increased risk of posttraumatic osteoarthritis in the right ankle, which may lead to the need for a fusion. The approximate cost would be $18,000 to $20,000."

68. Dr Bodel, like Dr Porteous, supported ongoing domestic assistance.  This appears at p 7 and number 17 of his report.

69. I turn now to the Schedule of Damages to which I earlier quickly referred as prepared by Counsel for the plaintiff. He is satisfied on the basis of instructions received, and I accept on that basis, that out of pocket expenses in the sum of $7,947.07 have been incurred to date which are directly attributable to treatment of the subject injury.

70. Counsel for the plaintiff has estimated non‑economic loss at 30% of a most extreme case. Given the plaintiff's ongoing pain, possible need for future surgical treatment and taking into account her relatively youthful age as a young mother of 33 years of age, I consider the plaintiff's assessment of 30% of a most extreme case to be reasonable.

71. Total future out of pocket expenses are claimed in the plaintiff's Schedule of Damages in the sum of $109,052. These include four visits to her general practitioner at $110 per consultation, which I accept, a review by an orthopaedic surgeon once per year at $850 per annum, which I accept, and also ongoing physiotherapy on a weekly basis at a cost of $65 per visit. That last amount is taken from Dr Porteous. I allow ongoing physiotherapy on a fortnightly basis. Medication at $540 per annum accords with the opinions of Dr Bodel and Porteous, which I accept. Ten sessions with a psychologist at a cost of $250 per session is also supported by the opinion of Dr Bertucen, which I accept.

72. Regarding the recommendation for antidepressant medication of $100 per month for nine months; I do not accept this as a future expense, given the plaintiff's pre‑existing history of treatment for depression. I do, however, accept and assessment by a chronic pain specialist and also treatment at a multidisciplinary pain clinic, as supported by Dr Porteous of between $4,500 and $12,000, which I allow at $8,000. Removal of the plaintiff's screws as commented by Dr Bodel at $6,000, which I accept. Further surgery to the right ankle, including ankle replacement or fusion is estimated by Dr Bodel at a cost of $20,000. Having taken the whole of the reports into account, I allow that at 50%, it being a strongly indicated possibility but not something to be taken as a fact proved on the balance of probabilities.

73. Provision of a home based exercise program with an exercise physiologist was supported by Dr Porteous at $2,000. I accept it as reasonable. Ergonomic assessment of the home by an occupational therapist, was supported by Dr Porteous, at an estimate of $2,500. I accept it as reasonable. Occupational therapy aides, supported by Dr Porteous at a cost of $400, I also accept it as reasonable.

74. In regard to past domestic assistance, I have already referred to my acceptance of the plaintiff's needs and that it is a reasonable claim. The plaintiff's Schedule of Damages estimates it as ten hours per week for the whole 108 weeks since her injury, at the modest sum of $27 per hour. The plaintiff, however, has been able to return to work in that period for approximately 34 weeks. Of course that does not mean that she was physically fit and therefore not entitled to domestic assistance. Doing the best I can with the evidence, I allow six hours per week until February 2018 when the plaintiff was weight bearing. From that date to the present, I allow four hours per week. I allow the claim in the Schedule of Damages for reimbursement for a commercial cleaner at $150 a week over 102 weeks.  In relation to the claim for reimbursement of a commercial gardener, it is stated at $27.69 per week for 108 weeks, but the plaintiff's evidence equated to approximately $35 per month; I allow it on that basis.

68. Then we get to future domestic assistance. In my opinion, given the evidence to which I have noted in these reasons, the claim of four hours at $47 per week is reasonable and I accept it. In doing that, I accept that Counsel for the plaintiff has investigated the hourly rate in the absence of a specialist occupational therapy report. Counsel confirms that the figure of $47 per week is taken from Home Care Service New South Wales’ Schedule of Rates. I accept that rate.

69. In regard to past economic loss, after allowing for approximately 34 weeks of work, albeit it was not fulltime, five days per week, I allow the hairdresser's award rate as claimed in the plaintiff's Schedule at $797.81 per week for 74 weeks.

70. From that, Counsel will recalculate past superannuation loss.  In regard to future economic loss, I have referred to applying the principles of Penrith City Council v Parks and I have stated the grounds upon which I will allow a buffer. It is presented in the plaintiff's claim Schedule at $120,000. In my opinion, that is an acceptable and reasonable claim on the evidence which I have recounted.  Future superannuation loss has been calculated at 14%.

71. I order the defendant pay the plaintiff's costs of the proceedings.

Judgment coNTINUED (EX TEMPORE)

79. On Thursday 22 August 2019, the plaintiff proceeded ex parte in a hearing on assessment only. There was no attendance by the defendant; again today. The matter has, again, been called outside.

80. In an ex tempore judgment, I delivered findings and invited Counsel for the plaintiff to perform the calculations. In the interim, Counsel for the plaintiff has delivered those calculations and this judgment will be in accordance with those calculations.

81. I have retitled the Schedule of Calculations delivered by Counsel. I have added words to the title so that it now reads, "Plaintiff's Schedule of Damages Calculated to Accord to Judgment Findings". That document will be included in the papers as Exhibit F.

82. For convenience, I will now read onto the record those calculations; and as I do, in accordance with the observations made in my ex tempore reasons, I observe that the future domestic assistance and future economic loss claims are matters in particular in which consideration was given to the common expert medical opinion of future worsening of the ankle impairment and requirement for ongoing treatment with possibilities, and may I say in the experience of the Court, and as I read those medical reports, significant possibilities of arthritis and future surgery, including the possibility of fusion of the ankle.

83. The heads of damage and calculations are as follows:

1. Non‑economic loss, 30% of the most extreme case, being $146,000.

2. Past out of pocket expenses of $7,947.07.

3. Future out of pocket expenses:

1. General practitioner consultations at $100 per consultation, calculated to $8.46 per week, totalling $8,430;

2. Review by orthopaedic surgeon once per year at $850 per annum, calculating to $16.35 per seek, totalling $16,291;

3. Ongoing physiotherapy on a fortnightly basis at a cost of $65 per visit, calculating to $32.50 per week, totalling $13,419;

4. Medication at $540 per annum, calculating to $10.23 per week, totalling $10,193;

5. Ten sessions with a psychologist at a cost of $250 per session, as recommended by Psychiatrist Dr Bertucen, $2,500;

6. A consultation with psychiatrist $500;

7. Assessment by a chronic pain specialist as recommended by rehabilitation specialist, Dr Porteous, $2,500;

8. Treatment at a multidisciplinary chronic pain clinic as recommended by Dr Porteous, $8,000;

9. Removal of plate and screws from ankle, Dr Bodel, $6,000;

10. Further surgery of right ankle, including ankle replacement or fusion by Dr Bodel and Dr Porteous, $10,000;

11. Home based exercise program with an exercise physiologist, $2,000;

12. Ergonomic assessment of her home by an occupational therapist as recommended by Dr Porteous, $2,500; and

13. Occupational therapy aides by Dr Porteous, $400.

The total for future out of pocket expenses is therefore $82,733.

4. Past domestic assistance:

1. Six hours per week from the date of injury to February 2018, being an estimate of 28 weeks at $27 per hour, totalling $4,536;

2. Reimbursement for commercial cleaner at $150 per week for 102 weeks, totalling $16,200; and

3. Reimbursement for a commercial gardener, $35 per month by 25 months, totalling $875.

84. The total for past domestic assistance is therefore $21,611.

1. Future domestic assistance at four hours per week at a cost of $47 per week, totalling $187,323.

2. Past economic loss at the Hair and Beauty Industry Award 2010 rate of $797.81 for 76 weeks, totalling $60,633.

3. Past superannuation loss on that sum at 11%, $6,670.

4. Future economic loss after a 15% reduction for vicissitudes, $102,000.

5. Future superannuation loss on $102,000 at 14.22% based on retirement at 67 years of age, according to Furzer and Crestani tables, $14,504.

85. The total award for damages is therefore $629,421.07.

ORDERS

86. I made orders as follows:

1. Judgment for the plaintiff against the defendant in the sum of $629,421.07.

2. The defendant to pay the plaintiff's costs of the proceedings.

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Decision last updated: 24 August 2020