Sijuk v Ilvariy Pty Limited, trading as, Craftsman Homes

[2010] NSWSC 793

NEW SOUTH WALES SUPREME COURT

CITATION:
SIJUK v ILVARIY PTY LIMITED, trading as, CRAFTSMAN HOMES [2010] NSWSC 793
This decision has been amended. Please see the end of the judgment for a list of the amendments.

JURISDICTION:
Common Law

FILE NUMBER(S):
09/297729

HEARING DATE(S):
22, 23, 24 and 25 March 2010

JUDGMENT DATE:
12 July 2010

EX TEMPORE DATE:
12 July 2010

PARTIES:
MILAN SIJUK v
ILVARIY PTY LIMITED, t/as, CRAFTSMAN HOMES

JUDGMENT OF:
Hall J     

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
P:  G Bateman
D:  D P O'Dowd

SOLICITORS:
P:  Martin Bell & Co
D:  James Tuite & Associates

CATCHWORDS:
NEGLIGENCE - liability of builder/occupier to employee of sub-contractor - employee to perform brick cleaning work - fell through hole of gap in the scaffolding which had not been present when inspected three days before - sub-contractor was plaintiff's wife - unsophisticated sub-contracting entity - previous contracts with the defendant - defendant knew plaintiff's wife not experienced in safety aspects of bricklaying work - plaintiff's attendance at site on a Saturday when no other employees present was a practice followed with brick cleaning - whether specific notice given by sub-contractor of plaintiff's intention to attend site - application of s.151Z Workers Compensation Act - defendant 90% - plaintiff contributory negligence 15%

LEGISLATION CITED:
Civil Liability Act 2002

CASES CITED:

TEXTS CITED:

DECISION:
1.  Enter judgment in favour of the plaintiff in the amount of $600,615.
2.  Order the defendant to pay the plaintiff's costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

MONDAY 12 JULY 2010

No 09/297729    

MILAN SIJUK v ILVARIY PTY LIMITED, t/as, CRAFTSMAN HOMES

JUDGMENT

1. HIS HONOUR:  In these proceedings I delivered reasons for judgment on 29 April 2010.  In that judgment I requested the parties to check the calculations of damages set out in the reasons for judgment.  The parties have done so.

2. On 20 April 2010 I gave further judgment, referred to as judgment number two, and a further matter was raised with the parties concerning the calculation of future domestic assistance.  The parties have provided to my Associate since then the calculations of damages, which are now agreed.

3. I have been unable prior to this date to deal with this matter as I have been on long leave.  It remains accordingly for me to enter judgment in these proceedings in accordance with the calculations which are agreed and as stated by Mr O’Dowd of counsel.

4. Accordingly I note that the total calculation of damages under the Civil Liability Act 2002 is the amount of $750,722. Damages are adjusted in accordance with the provisions of s.151(Z)(2), producing the amount of $706,605. In accordance with the finding of contributory negligence there is to be a deduction in the amount of 15% for contributory negligence, resulting in a judgment sum of $600,615.

5. Accordingly I enter judgment in favour of the plaintiff against the defendant in the latter amount of $600,615.

6. The plaintiff seeks an order for costs in the proceedings.  In the circumstances the defendant is to pay the plaintiff’s costs.
   
   SIJUK v ILVARIY PTY LIMITED

AMENDED SUMMARY OF DAMAGES

1.	Non-economic loss 31% of a most extreme case	$123,000.00
2.	Past economic loss (1)   Past wage loss at $500 net per week (2)           Interest on wage loss after allowance for workers compensation payments	$157,500.00 $1,000.00	$158,500.00
3.	Fox and Wood component	$7,669.80
4.	Future economic loss 5 years at $650 net per week Multiplier 23.15 less 20% for vicissitudes	$120,380.00
5.	Past and future superannuation 11% on net	$30,676.80
6.	Past out of pocket expenses	$142,791.18
7.	Future out of pocket expenses (1)   General practitioner consultations:    $15 per week (based on Dr Dixon’s assessment of consultations, one a month at $65 per consultation) (2)           Specialist (orthopaedic consultations):    Averaged to $7.50 per week (radiologist – ultrasound $200 and shoulder specialist once a year at $180 totalling $380 per annum or $7.50 per week (3)           Medications:    $18 per week (based on assessment of Dr Dixon of $70 per month) Multiplier 753.6 less 35% for vicissitudes = $30,520 less 35%	$15.00 $7.50 $18.00 $40.50    (per week) $19,838.52	$19.838.52

8.	Past Domestic Assistance	$45,000.00
9.	Future Domestic Assistance 25 years at 6 hours per week at $35 per hour Multiplier 753.6 less 35% for vicissitudes	$102,866.40
Total common law damages	$750,722.00
Adjusted figure taking into account s.151Z(2) reduction	$706,605.00
Final figure taking into account 15%contributory negligence reduction	$600,615.00

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AMENDMENTS:

20/07/2010 - Correction of details - Paragraph(s) Cover sheet

LAST UPDATED:
20 July 2010