Heang v Tran

[2016] NSWDC 188

District Court

New South Wales

Medium Neutral Citation:

Heang v Tran [2016] NSWDC 188

Hearing dates:

25 August 2016

Date of orders:

26 August 2016

Decision date:

26 August 2016

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff in the sum of $660,545;

 

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.

Catchwords:

TORTS – negligence – occupier’s liability; DAMAGES – assessment of claimed heads of damage

Legislation Cited:

Civil Liability Act 2002, s 5B, s 5D, s 15, s 16
Evidence Act 1995, s 60
Uniform Civil Procedure Rules 2005, r 12.7(2)

Cases Cited:

Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25

Category:

Principal judgment

Parties:

Meng Khim Heang (Plaintiff)
Ngoc Son Tran t/as Thien An Fresh Fruit (Defendant)

Representation:

Counsel:
Mr MJ Perry (Plaintiff)
No appearance for the Defendant

  Solicitors:
AC Lawyers (Plaintiff)
No appearance for the Defendant

File Number(s):

2015/71292

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1]
Procedural background	[2] – [3]
Facts	[4] – [11]
Assessment of claimed heads of damage	[12] – [37]
Non-economic loss	[13] – [17]
Past economic loss	[18] – [19]
Past loss of superannuation	[20]
Future economic loss	[21] – [25]
Future loss of superannuation	[26]
Past domestic assistance	[27] – [29]
Future domestic assistance	[30] – [32]
Future treatment expenses	[33] – [35]
Past out-of-pocket expenses	[36]
Summary of damages assessment	[37]
Disposition	[38]
Costs	[39]
Orders	[40]

Nature of case

1. The plaintiff, Mrs Meng Khim Heang, brings these proceedings against the defendant, Ngoc Son Tran (trading as Thien An Fresh Fruit), claiming damages for personal injury which she incurred on 2 February 2014 at the defendant’s fruit shop premises. The plaintiff slipped on a wet and slippery floor at the premises. The plaintiff claims her injuries were caused by the alleged negligence of the defendant. The proceedings are governed by the Civil Liability Act 2002 [the “CL Act”].

Procedural background

2. At a listing call-over on 9 February 2016, the legal representatives of both parties were present when the hearing dates of 25 and 26 August 2016 were allocated. On 9 May 2016 the parties were similarly represented at a further procedural listing. Subsequently, on 6 July 2016, the solicitor for the defendant filed a notice of ceasing to act for his client.

3. When the matter was called on for hearing at the appointed time, there was no appearance for the defendant. The plaintiff then moved for the defence filed on 27 October 2015 to be struck out pursuant to UCPR r 12.7(2). An order was then made in those terms. Default judgment was then entered in favour of the plaintiff. The matter then proceeded to a hearing for the assessment of damages.

Facts

4. The plaintiff, who is aged 36 years, and has two children aged 8 years and 4 years, gave her evidence with the assistance of a Khmer interpreter. There was no issue as to the credibility or the reliability of her testimony.

5. On the afternoon of Sunday 2 February 2014, the plaintiff was in the defendant’s fruit shop when, due to the condition of the floor of those premises, she slipped and fell onto her right side and sustained bodily injury. Consequent upon the entry of judgment in the plaintiff’s favour in the proceedings, it is unnecessary to further evaluate the circumstances of the plaintiff’s fall in the terms that would otherwise be required by s 5B of the CL Act.

6. In the fall, the plaintiff sustained soft tissue injuries to her neck, her right shoulder, her right arm, and to her upper and lower back. She was also considerably shaken by the experience. Since that time, she has had ongoing pain, restriction of movement and discomfort in those areas, as well as experiencing headaches and distressing psychological symptoms. Beforehand, the plaintiff did not have any such physical or emotional problems.

7. Consequent upon her fall, the plaintiff has had extensive medical and allied treatments as has been chronologically catalogued in Exhibit “B”. She has incurred treatment expenses in the sum of $28,070. In my view, the evidence satisfactorily establishes that the plaintiff’s injuries, the treatment she has obtained, and the remaining disabilities that she has been left with, were all incurred and caused by the subject fall. I find that but for the occurrence of her fall, she would not have incurred such problems and accident related needs: s 5D of the CL Act.

8. The extensive medical reports within Exhibit “B” record the histories the plaintiff has given to the various medical and allied examiners. I accept the plaintiff’s evidence that she gave examiners truthful accounts of her problems when questioned by them on those matters. Accordingly, I have drawn upon those reported descriptions in determining the factual consequences of the plaintiff’s fall: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; s 60 of the Evidence Act 1995.

9. In addition to the soft tissue injuries referred to, the radiological evidence suggests the plaintiff also sustained a wedge fracture of the T7 vertebral body: Exhibit “B”, Tab 4.1. Her disabilities have resulted in ongoing neck, right shoulder, right arm and back pain, with a post-traumatic stress condition.

10. These events have left the plaintiff with a chronic post-traumatic stress disorder, as described by the defendant’s expert psychiatrist, Dr Bertucen: Exhibit “B”, Tab 3.3. She remains significantly depressed and anxious due to the effects of her injuries: Exhibit “B”, Tab 3.5.

11. The combined effect of those problems is to adversely impact upon the plaintiff’s ability to work and to carry out her pre-accident domestic activities.

Assessment of the claimed heads of damage

12. In the paragraphs that follow, I assess the heads of damage claimed by the plaintiff.

Non-economic loss

13. The plaintiff’s enjoyment of the amenity of her life is substantially degraded by the effects of the injuries she sustained in the subject fall.

14. The plaintiff continues to suffer ongoing pain and discomfort in the areas of her body that she injured in the subject accident. She remains significantly restricted in her ability to carry out the work of a hairdresser for which she is qualified, as well as being restricted in her ability to carry out her previous work requiring physical strength and dexterity, such as work involving stacking of supermarket shelves.

15. The plaintiff is no longer able to undertake the full range of her pre-accident domestic and household tasks which she was accustomed to managing without difficulty before she was injured. She continues to see health care professionals for necessary treatment, and she needs to take medication in order to manage her disabilities.

16. Those matters, which are amply described within Exhibit “B”, and summarised at paragraphs [6] to [11] above, call for a significant assessment of damages for non-economic loss.

17. On behalf of the plaintiff, it was submitted that those problems justify an award of damages the equivalent of 32 per cent of a most extreme case: s 16 of the CL Act. In my view, having regard to the plaintiff’s evidence and the medical evidence within Exhibit “B”, the appropriate assessment of such damages is 30 per cent. In monetary terms, this equates to $136,500. I therefore assess the plaintiff’s claim for non-economic loss pursuant to s 16 of the CL Act, in the sum of $136,500.

Past economic loss

18. I am satisfied that the plaintiff’s claimed inability to work, between the time of her fall on 2 February 2014, and including until the present time, is due to the effects of her ongoing accident related disabilities.

19. Exhibit “D” set out the earnings the plaintiff would have continued to derive as a shelf stacker in the employ of Coles Supermarkets. Those earnings amount to $34,990 net. I therefore assess the plaintiff’s damages for past economic loss in the sum of $34,990.

Past loss of employer funded superannuation

20. On behalf of the plaintiff it was submitted that past superannuation should be assessed on the conventional basis of 11 per cent of $34,990. I accept that submission and I therefore assess the plaintiff's damages for past loss of superannuation in the amount of $3,848.

Future economic loss

21. The plaintiff makes a claim for future loss of earning capacity in respect of two periods for assessment purposes.

22. The first component of this claim is from the time of this assessment, and continuing for the ensuing 18 weeks until the end of the present calendar year, during which time she continues to lose income at the rate of $280 per week net, based on the earnings she would have derived as a shelf stacker of supermarket shelves, namely $5,040. That component of the claim is reasonable and does not require discounting.

23. The second component of this claim relates to the plaintiff’s future working life, based on the comparable rates for hairdressers’ earnings, as found in Exhibit “C”. That claim proceeds on the basis, which I accept, namely that in 2017, both of the plaintiff’s children would be of school age, and by that time, she would have pursued full-time work as a hairdresser as she had planned.

24. The plaintiff has submitted that this component of her claim should be assessed on a discounted basis at the present rate for such earnings, namely $660 per week net, projected on the 5 per cent discount tables over the next 10 years (x 412.9), less a discount of 33 per cent for a conceded emergent residual earning capacity over time, and then further discounted by a conventional 15 per cent for possible adverse vicissitudes, yielding the discounted sum of $300,000.

25. I consider that both of those calculations, which total $305,040, represent reasonable assessments of this head of damage. I therefore assess the plaintiff’s damages for future economic loss in the sum of $305,040.

Future loss of employer funded superannuation

26. There is no dispute that the appropriate assessment percentage to be applied for identifying the amount of future loss of superannuation is 14.18 per cent of $305,040. I therefore assess the plaintiff’s damages for future loss of superannuation in the amount of $43,254.

Past domestic assistance

27. The plaintiff makes a claim for past domestic assistance from the date of the accident until the present time. The claim is for 16 hours per week for the first 4 weeks, and then for 12 hours per week for the remaining period until the date of assessment. The assessment rate for this head of damage must not exceed the statutory rate: s 15 of the CL Act.

28. I accept the plaintiff’s account that historically, she fulfilled her pre-accident household and domestic tasks without difficulty and without assistance. She did so without the assistance of her husband who is often away due to his work. I also accept that but for the accident, the plaintiff’s described inability to perform those tasks would not have arisen. I also accept that in addition to assistance provided by the plaintiff’s young children in respect of some of those tasks, the plaintiff received the assistance of her sister and also from her friend Lily, each for some 2 to 3 days per week for 2 to 3 hours on each such day. I find this need arose as a consequence of her accident.

29. Taking a broad average view of the claim, and taking the lower end of the range of that estimate of hours of assistance, namely 8 hours per week, as calculated in the Appendix to these reasons, this equates to $30,249. I therefore assess the plaintiff’s damages for accident related past domestic assistance in the sum of $30,249.

Future domestic assistance

30. The plaintiff makes a claim for future domestic assistance for 6 hours per week assessed at the statutory rate for the ensuing 7 years. In addition to the plaintiff’s own evidence on this topic, which I accept, I consider that claim to be supported by the general and specific tenor of the medical evidence within Exhibit “B”.

31. I accept that but for the subject accident, the plaintiff would not have required such assistance. I also consider that the submitted projection period is a reasonable one, which should be accepted.

32. The projection of the value of 6 hours per week of domestic assistance at the present statutory rate of $28.87, over 7 years on the 5 per cent discount tables (x 309.4) yields the amount of $53,594. That sum requires no further discount. I therefore assess the plaintiff’s damages for past economic loss in the sum of $53,594.

Future treatment expenses

33. The plaintiff makes a claim for future treatment expenses in the sum of $41,191.89. That claim is based on the elements of future treatment needs identified by the reporting medical practitioners, and some additional submitted items of expenditure: Exhibit “D”, pages 2 and 3.

34. Those elements include allowances for psychiatric treatment, functional vocational assistance, assistance with selected job seeking, palliative physiotherapy, general practitioner consultations, radiological investigations, gymnasium expenses and anticipated medication costs, as are listed in Exhibit “D”.

35. In my view, rather than projecting those specific items, in view of uncertainties of timing of those expenses, the preferred method of assessment is to identify an appropriate discounted buffer sum, which I assess in the amount of $25,000. I therefore assess the plaintiff’s damages for future treatment expenses in the sum of $25,000.

Past out-of-pocket expenses

36. The plaintiff has satisfactorily proven her claim for past out of pocket expenses in the amount of $28,070: Exhibit “B”, Tab 8.16. I therefore assess the plaintiff’s damages for past out-of-pocket expenses in the sum of $28,070.

Summary of damages assessment

37. My assessment of the plaintiff’s damages is summarised as follows:

(a) Non economic loss	$136,500
(b) Past economic loss	$34,990
(c) Past loss of superannuation	$3,848
(d) Future economic loss	$305,040
(e) Future loss of superannuation	$43,254
(f) Past domestic assistance	$30,249
(g) Future domestic assistance	$53,594
(h) Future treatment expenses	$25,000
(i) Past out-of-pocket expenses	$28,070
Total	$660,545

Disposition

38. For the reasons outlined above, the plaintiff is entitled to a verdict and judgment in her favour in the sum of $660,545.

Costs

39. It follows that the plaintiff should have her costs of the proceedings paid by the defendant on the ordinary basis unless a party can show an entitlement to some other costs order.

Orders

40. I make the following orders:

1. Verdict and judgment for the plaintiff in the sum of $660,545;

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.

APPENDIX

Period	Weeks	Hourly rate	Hours per week	Calculation
1. 03.02.14-16.05.14	14.57	$27.96	8	$3,259.02
2. 17.05.14-21.11.14	26.85	$27.95	8	$6,003.66
3. 22.11.14-15.05.15	25.00	$28.23	8	$5,646.00
4. 16.05.15-25.08.16	66.42	$28.87	8	$15,340.36
TOTAL	$30,249.04

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Decision last updated: 26 August 2016