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Case Study: Hodgson v Sydney Water Corporation [2016] NSWDC 361 (15 December 2016)

This case note highlights how damages are calculated by a Judge in a public liability claim.

In 2015 Mrs Hodgson commenced proceedings in the District Court in negligence claiming damages for personal injuries (in a fractured wrist, severe bruising and shoulder injuries) suffered by her in a fall at Rose Bay beach on 30 November 2013 while she was crossing a drain owned by Sydney Water Corporation (“Sydney Water”).

Evidence:

Mrs Hodgson relied on medical evidence being consultation notes from her GP including a medical certificate, a referral for physiotherapy, an ultrasound report and reports from an osteopath, a physiotherapist, an occupational physician and an orthopaedic surgeon.

As to the above evidence, the Judge found Mrs Hodgson had continued problems with her right shoulder and right wrist including reduced grip strength and reduced range of motion in her shoulder. Given the problems had persisted for nearly 3 years after the accident, Mrs Hodgson’s restrictions were “probably permanent or will improve only slowly”.

Judge Dicker found in favour of Mrs Hodgson for the following reasons:

  1. The risk to the plaintiff was foreseeable by the Council being a risk of which the Council knew or ought to have known
  2. The risk was not insignificant
  3. In the circumstances a reasonable person in the position of the Council would have taken precautions to prevent the risk of harm
  4. There was no contributory negligence by Mrs Hodgson
  5. That the Council breached its duty of care owed to Mrs Hodgson
  6. That if the Council had taken precautions to prevent the risk of harm, Mrs Hodgson would not have slipped

Damages:

Mrs Hodgson and the Council had opposing views on what damages should be awarded as follows:

Head of Damage Mrs Hodgson The Council
1. Non-economic loss 28% $84,500.00 15% $6,000.00
2. Past economic loss $3,600.00 Nil
3. Future economic loss Buffer $50,000.00 Nil
4. Out of pocket expenses $7,961.00 Less than $4,500.00
5. Future out of pocket expenses $21,066.00 Nil
6. Past domestic assistance Nil Nil
7. Future commercial assistance $61,806.00 Nil
Total $228,933.00 About $10,500.00

A summary of the award by the judge is as follows with an explanation below:

Head of damage Amount awarded
Non-economic loss $21,000.00
Past economic loss Nil
Future economic loss $15,000.00
Past out of pocket expenses $6,000.00
Future out of pocket expenses $12,000.00
Past domestic assistance Nil
Future commercial assistance $60,412.00
Total $114,412.00

1. Non-economic loss (pain and suffering)

The Judge found Mrs Hodgson had “continuing physical limitations that affect her daily living but they are not of the serious kind” and taking into account “all the facts … including the nature of the injury, the medical evidence and … evidence of her restrictions” assessed Mrs Hodgson’s entitlement to 20% of a most extreme case being $21,000.

2. Past economic loss

The Judge made no award for past economic loss as Mrs Hodgson did “not appear to have suffered any loss of salary or past economic loss as a result of the accident”.

3. Future economic loss

Mrs Hodgson claimed a buffer of $50,000 as she works for herself and finds it difficult due to her right shoulder to perform the physical work required when she undertakes marketing events will result in a potential limitation in her earning capacity.

The Judge found that there was a real possibility that Mrs Hodgson’s “future earning capacity will be diminished to some extent having regard to her restrictions and she may well be unable to take on certain jobs that require more physical work … Alternatively, she may well need to pay for an assistant in some cases” and allowed $15,000.

4. Past out of pocket expenses

The Judge allowed $6,000 including a reduction for treatment of the plaintiff’s left shoulder which was not related to the accident and other unrelated problems.

5. Future out of pocket expenses

The Judge noted the evidence of the orthopaedic surgeon and allowed “a buffer… for future likely out of pocket medical and related expenses” in the sum of $12,000.

6. Past domestic assistance

The claim for domestic assistance was discontinued by Mrs Hodgson as she did not require 6 hours of assistance per week for the first 6 months following her injury.

7. Future commercial assistance

Mrs Hodgson claimed future commercial assistance of 2.5 hours per week at $25 per hour for the rest of her life (53 years). The Judge found that Mrs Hodgson needed assistance and “the number of hours sought at the rate sought are appropriate…However, in my view providing commercial assistance for … life… is excessive” and allowed “commercial assistance for 48 years” being $60,412.

If you have been injured by someone else’s negligence and as a result are unable to work or require assistance with personal care or medical expenses, we can help.

Hodgson v Sydney Water Corporation [2016] NSWDC 361 (15 December 2016)

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