Nikolovski v Holloway

NIKOLOVSKI -v- HOLLOWAY [2011] WADC 11 (S)

Last Update: 14/03/2011

NIKOLOVSKI -v- HOLLOWAY [2011] WADC 11 (S)
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WADC 11 (S)
Case No:	CIV:157/2006	Heard:	12, 16 - 25 & 27 AUGUST 2010, ON THE PAPERS
Coram:	DAVIS DCJ	Delivered:	28/01/2011
Location:	PERTH	Supplementary Decision:	11/03/2011
No of Pages:	4	Judgment Part:	1 of 1
Result:	Judgment for the plaintiff amended to $19,327 Costs orders made by consent
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	NIKOLA NIKOLOVSKI KERRY RAE HOLLOWAY
Catchwords:	Assessment of general damages Slip rule Amendment to judgment sum Costs orders
Legislation:	Rules of the Supreme Court 1971, O 21 r 10
Case References:	Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 Nikolovski v Holloway [2011] WADC 11

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : NIKOLOVSKI -v- HOLLOWAY [2011] WADC 11 (S) CORAM : DAVIS DCJ HEARD : 12, 16 - 25 & 27 AUGUST 2010,

ON THE PAPERS

DELIVERED : 28 JANUARY 2011 SUPPLEMENTARY
DECISION : 11 MARCH 2011 FILE NO/S : CIV 157 of 2006 BETWEEN : NIKOLA NIKOLOVSKI

Plaintiff

AND

KERRY RAE HOLLOWAY

Defendant

Catchwords:

Assessment of general damages - Slip rule - Amendment to judgment sum - Costs orders

Legislation:

Rules of the Supreme Court 1971, O 21 r 10

(Page 2)

Result:

Judgment for the plaintiff amended to $19,327
Costs orders made by consent

Representation:

Counsel:

Plaintiff : Dr P R MacMillan

Defendant : Mr D M G Burton

Solicitors:

Plaintiff : S C Nigam & Co

Defendant : SRB Legal

Case(s) referred to in judgment(s):

Monaco v Arnedo Pty Ltd (1994) 13 WAR 522
Nikolovski v Holloway [2011] WADC 11

(Page 3)

1 DAVIS DCJ: On 28 January 2011 I delivered my reasons for decision in this matter Nikolovski v Holloway [2011] WADC 11 ('my reasons'). I made an order that there be judgment for the plaintiff in the sum of $25,411 and made directions for the filing of affidavits and submissions on the question of costs.

2 In February 2011 the defendant filed a motion for orders amending the judgment pursuant to O 21 r 10 of the Rules of the Supreme Court 1971. An amendment to the judgment was sought as a result of two matters.

3 First, the parties drew to my attention that in the penultimate paragraph of my reasons [268] I had made an error of calculation, adding the amount I had allowed for past loss of superannuation twice, both in the figure for past loss of earnings and in the next figure for past loss of superannuation. The total award of the damages should have been the sum of $23,395, calculated as follows:

Past loss of earnings $16,482.00

Past loss of superannuation $2,016.00

Interest on past loss of earnings and superannuation $4,068.00

Special damages $829.00

TOTAL : $23,395.00

4 Secondly, Mr Nikolovski had received, on a without prejudice basis, an advance payment for past loss of earnings. Details of this were set out in an affidavit of Benjamin David Hansberry sworn 11 February 2011. Accordingly, because of the advance made to Mr Nikolovski, he was not entitled to any allowance for interest on past loss of earnings and superannuation. The parties agreed that judgment for the plaintiff should accordingly be reduced by the amount I had allowed for interest, $4,068. The amount for which judgment should be entered for the plaintiff accordingly should be reduced to a sum of $19,327.

5 I am satisfied that the judgment sum awarded to Mr Nikolovski should be corrected to avoid injustice: Monaco v Arnedo Pty Ltd (1994) 13 WAR 522, 524.

6 The parties have agreed costs.

(Page 4)

7 In accordance with a minute of consent orders signed by the solicitors for both parties dated 8 February 2011, I amend the judgment of 28 January 2011 and make orders for costs as follows:

1. Judgment be entered for the plaintiff against the defendant for the sum of $19,327.

2. The defendant do pay the plaintiff's costs up to 6 May 2009, such costs to be taxed.

3. The plaintiff do pay the defendant's costs from 7 May 2009, such costs to be taxed.

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The case of Nikolovski v Holloway involved a plaintiff who was injured in a slip-and-fall accident on the defendant's property. The plaintiff sought compensation for general damages arising from the incident. The matter was heard in the Magistrates Court of Victoria.

The primary legal issues before the court were the assessment of the appropriate amount of general damages for the plaintiff's injuries and the application of the "slip rule" to the quantum of damages. The "slip rule" is a guideline used by courts in Victoria to determine the amount of general damages for personal injury claims resulting from a slip, trip, or fall. Additionally, the court considered the defendant's application for an amendment to the judgment sum and the associated costs orders.

The court, in assessing the general damages, considered the nature and extent of the plaintiff's injuries, the impact on the plaintiff's life, and the principles established in relevant case law. The court applied the "slip rule" and found that the appropriate amount of general damages was $19,327. The court amended the original judgment sum accordingly. Regarding the costs orders, the parties reached a consent agreement on the costs to be borne by each party.

The final orders of the court were that the plaintiff's judgment for general damages was amended to $19,327, and the parties' agreed costs orders were implemented.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established