Nikolovski v Swaidan

[2018] NSWDC 494

District Court

New South Wales

Medium Neutral Citation:	Nikolovski v Swaidan [2018] NSWDC 494
Hearing dates:	5 December 2018
Date of orders:	05 December 2018
Decision date:	05 December 2018
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Note that the defendant was called outside court and there was no appearance. (2)   Order that Paul Anthony Curtis be appointed as the tutor of Barry Nikolovski. (3)   Judgment for the plaintiff in the sum of $338,000. (4)   Order the defendant pay the plaintiff's costs. (5)   Order that any funds recovered after payment of appropriate legal costs and costs of recovery either be held by the plaintiff's solicitor in trust for the plaintiff, or be paid into court to await further order.
Catchwords:	TORTS – intentional tort – damages – assessment – left eye
Legislation Cited:	Civil Liability Act 2002, s 3B
Cases Cited:	Croucher v Cachia [2016] NSWCA 132 Droga v Coluzzi [2000] NSWSC 1081 Hassan v Southern Meats Pty Ltd [2004] NSWSC 72 P v NSW Trustee and Guardian [2015] NSWSC 579
Category:	Principal judgment
Parties:	Barry Nikolovski – plaintiff Ali Swaidan trading as King of the Pack Rockdale - defendant
Representation:	Counsel: Mr M McAuley - plaintiff   Solicitors: Paul A. Curtis & Co. Solicitors – plaintiff
File Number(s):	2017/186672
Publication restriction:	None

Judgment

A. Introduction

1. Barry Nikolovski lost the use of his left eye when he was hit with a wooden implement by Ali Swaidan.  He sued for damages and obtained default judgment.  This judgment concerns his ex parte application for assessment of damages.

B. Procedural matters

2. Through his counsel, Mr Nikolovski submitted that he was under a legal incapacity.  No tutor had been appointed in the proceedings but during the course of the hearing his solicitor, Paul Curtis, consented to be his tutor and Mr Nikolovski also expressed his consent to that course.  I will order the appointment of Mr Curtis as tutor.

C. The incident

3. On 18 July 2014 Mr Nikolovski visited the tobacco shop operated by Mr Swaidan.  Mr Swaidan had extended credit to Mr Nikolovski.  Mr Nikolovski gave evidence that he was visiting the shop to pay his credit account.  He became suspicious when he entered.  He was grabbed by Mr Swaidan and struck with what he called a bat of some type, but what appears from other evidence to have been the wooden leg of a chair or table.  He walked out bleeding profusely from his left eye.  He then drove home to where he lived with his father and mother.

4. Initially Mr Nikolovski resisted his parents’ involvement but later that day he was taken to hospital in an ambulance and the next day submitted to an operation.  He had facial fractures, including a fracture of the floor of the left orbit and medial wall and the interior wall of the maxillary sinus.  His left eye had lost its normal spherical configuration and the damage to it suggested "complete global disruption".  The eye did not recover and while it is still in place, it is shrunken and Mr Nikolovski remains blind in that eye.

D. Ongoing disability

5. Mr Nikolovski's left eye can barely be seen.  He has resisted and continues to resist getting a prosthetic eye as he says it would only be for an improvement in appearance and he is not interested in that.  He did give evidence that he might have treatment if treatment assisted his comfort. 

6. By reason of his damaged eye, Mr Nikolovski feels frustration.  He runs into things and knocks things over.  His eye bleeds and discharges moisture, especially at night, and in the morning he has excessive discharge or sleep in that eye on awakening. He suffers pain and headaches, especially from lying on that side of his face and he also experiences flashbacks, repeatedly asking himself why this has happened to his eye.  He still does not understand precisely why it occurred.  He is troubled by not being able to do things he previously had been able to do, knocking over a glass of water or cup of coffee on occasion because he cannot readily judge distances.

7. Mr Nikolovski wears prescription glasses for myopia and those glasses tend to hide his damaged eye somewhat.  He does not associate so much with his family as he previously did.  That family includes his sister, her husband, and their children, so he no longer has so much involvement with his nieces and nephews.  His mother attributes this to him being nervous and embarrassed about his condition. Mr Nikolovski no longer mows the lawn as he once did.  He receives assistance from his parents, particularly his mother, who carries out the greater load of the domestic tasks in their shared home.

E. Claim

8. Through his counsel, Mr Nikolovski sought an amount of $350,000 for non-economic loss and $15,000 for future treatment.  As to the latter, it was claimed as a buffer to cover the cost of approximately $3,250 for the assessment of fitting and supplying a prosthetic eye, which would, if undertaken, require replacing every three years. But as I mentioned, Mr Nikolovski has resisted obtaining a prosthetic eye to date, and his evidence in the witness box did not indicate that that expense would likely be incurred. There was no satisfactory evidence about whether a prosthetic eye would improve his level of comfort.  

9. The present day value of a prosthetic eye is a little less than $20,000, and I would allow an amount of $8,000 based on a 40% likelihood of Mr Nikolovski deciding in the future to get that treatment.

10. As to the claim for non-economic loss, Mr Nikolovski, through his counsel, submitted that a range of $250,000 to $350,000 was appropriate for the injury and disabilities, and that an award at the upper end was appropriate given the aggravation to his damages resulting from the deliberate act. 

11. Mr Nikolovski has longstanding and ongoing psychiatric problems which continue. Whilst that condition does not assist him to come to terms with his injury, he has nevertheless shown some degree of stoicism in his response to what was undoubtedly an extremely painful and debilitating attack on him.  As indicated by his evidence, he still suffers from discomfort and pain from fluid discharge, headaches, frustration, and embarrassment of not just the blindness in his eye with no light perception at all, but also from the effective loss of the eye itself.

12. I accept the submissions that Mr Nikolovski's damages have been aggravated by the circumstance that they resulted from a deliberate, intentional, criminal act. The inexplicable nature of the attack tends to exacerbate the damage to Mr Nikolovski. He regularly questions himself about why this event has happened and why he has lost his eye.

13. In Hassan v Southern Meats Pty Ltd,[1] Adams J stated that he "would have awarded an amount in the order of $300,000 under this head as fairly reflecting the plaintiff’s pain and suffering in monetary terms". In that case, the plaintiff had suffered damage to his left eye as a result of an industrial accident, resulting in his right eye giving only limited sight for a period of uncertain duration. The judgment does not indicate whether the blindness in the left eye was accompanied by the loss of the eye.

    1. [2004] NSWSC 72 at [38].

14. In this case, damages are not confined by the Civil Liability Act 2002 since under s 3B(1)(a) of that Act, the liability has resulted from an intentional act done with intent to cause injury. [2]  

    2. Croucher v Cachia [2016] NSWCA 132, P v NSW Trustee and Guardian [2015] NSWSC 579, Droga v Coluzzi [2000] NSWSC 1081.

15. Mr Nikolovski wears glasses for his vision in his right eye so his vision in even his good eye is less than ideal.  He is 56 years of age with a life expectancy of more than 27 years, and I find that the injury to his left eye continues to bother him on an almost daily basis.

16. In all these circumstances, I propose to award the sum of $330,000 as damages for non-economic loss, including interest, as well as a buffer for a future prosthetic eye. Thus a total of $338,000 is the amount of damages assessed.

F. Orders

17. Therefore, the orders of the Court are:

1. Note that the defendant was called outside court and there was no appearance.

2. Order that Paul Anthony Curtis be appointed as the tutor of Barry Nikolovski.

3. Judgment for the plaintiff in the sum of $338,000.

4. Order the defendant pay the plaintiff's costs.

5. Order that any funds recovered after payment of appropriate legal costs and costs of recovery either be held by the plaintiff's solicitor in trust for the plaintiff, or be paid into court to await further order.

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Endnotes

Decision last updated: 01 April 2019