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…