DIMKOVSKI v KEN'S PAINTING & DECORATING SERVICES PTY LTD & ANOR [1999] NSWSC 795 | Case summary

1 HIS HONOUR: The plaintiff was seriously and tragically injured whilst at work on 6 December 1996. His services were obtained by the first defendant for the purpose of painting work on a building site. The second defendant was generally in charge of the building site. Whether the plaintiff was employed or he was a subcontractor of the first defendant is a matter which, in the circumstances, is not a relevant issue. 2 An elevating work platform was provided to the plaintiff for the purpose of undertaking the painting. It was fully extended when it fell taking the plaintiff with it. It seems virtually certain that the platform collapsed because it was placed on sloping ground with timber used as chocks or supports. There is expert evidence on the point but to the lay mind this is self-evidently unsafe. Indeed, it was not seriously submitted in this Court on behalf of the first defendant that, assuming the first defendant to be otherwise responsible, it was not negligent in this respect. 3 I have no doubt that if the action brought by the plaintiff against the first defendant proceeded to trial he would obtain judgment for substantial damages against it. 4 The evidence linking any employee of the second defendant with the circumstances of the use of the platform is exiguous in the extreme. I do not go so far as to say that the second defendant would escape liability were the matter to proceed to trial but I am not satisfied that the plaintiff would obtain judgment against that defendant. 5 This is an application under sections 76E, 76F, and 76G of the Supreme Court Act 1970 for interim damages. It is evident from the conclusions which I have set out above that I consider that the Court can make an order for interim damages against the first but not against the second defendant. 6 Dr Yeo, whose report has been tendered on the plaintiff's behalf, describes his position succinctly but sufficiently as follows - "Mr Dimkovski has suffered serious head and trunk injuries with evidence of permanent brain damage. He has permanent disturbance of cognitive function and a severe loss of memory. He requires assistance for all activities of daily living. I would not expect any further significant improvement to occur. Since his discharge from hospital Mr Dimkovski has been cared for in large measure by his wife and children and wider family. They have been assisted by care paid for by the first defendant under its worker's compensation obligations presently amounting to assistance for 32 hours a week." 7 At present it is expected that, unless expedited, the plaintiff's trial will take place some time towards the end of the year 2000. It may be that some further delay might be occasioned by virtue of problems with the Court's list in the latter half of next year. Were it not that the Court has jurisdiction to make orders of the kind which I propose in this case expedition of this case would and could be achieved. 8 The plaintiff claims the cost of further nursing and attendant care to the expected date of trial and loss of earnings for this period. I consider that he should have both (which is not contested by the first defendant) upon the assumption that the trial will occur in about 18 months or so. The defendant disputes the extent of the claim under both these heads. 9 For present purposes I do not think it is necessary to analyse the evidence in detail. There is no evidence that substantially controverts the assessment by Dr Middleton, whose specialty is rehabilitative medicine, and Miss Anna Castle-Burton, an occupational therapist, both of whom have provided extensive and convincing reports, the substantial conclusion of which is that having regard to the plaintiff's ongoing extensive care needs he requires care for 24 hours a day, seven days a week. 10 I have mentioned that Mrs Dimkovska and the plaintiff's family are presently providing a significant portion of the plaintiff's care needs. The stresses of this are obvious to commonsense but are succinctly set out in Miss Castle-Burton's report. I do not propose to set out those passages in this judgment. They cannot continue care for him at the same level in the medium to long-term as they are presently doing, though perforce they must continue for the short term. 11 Mrs Dimkovska undertakes some aspects of her husband's care but cannot manage anything requiring significant physical strength. Whilst Miss Castle-Burton says she is "unable to manage any of Mr Dimkovski's physical care" this I think is somewhat of an overstatement. Even so, her continuing assistance for the plaintiff does not diminish the need in my view for the two carers which Miss Castle-Burton says are necessary, one required 24 hours a day with a second needing to be available to provide additional assistance during key times during the day such as during the morning, lunch time, afternoon rest routine and in the evening for two or so hours. Objectively, a live-in house couple is needed and this is Miss Castle-Burton's recommendation. It is not sought to be substantially controverted by the defendant. At present, however, there is no accommodation for such a couple since the premises presently occupied by Mr Dimkovski and his family are too small. 12 Before making an assessment of the appropriate sum to be allowed under this head I need to deal with the other claim for the cost of acquisition of land for the construction of a home and the cost of construction of that home which will be suitable for occupation by the plaintiff having regard to his disabilities. It is not submitted by the defendant that ultimately ordinary accommodation will be adequate for the plaintiff's purposes. Some appropriately adjusted premises will need to be provided. There may be a debate about the extent of the adjustment. 13 The home proposed on the plaintiff's behalf and designed by Mr John Watts is in accordance with what might reasonably be required in cases of this kind except that a third bedroom is specified for Mr Dimkovski's daughter and a fourth and fifth for another daughter, son-in-law and grandson. The basis for the provision of these bedrooms is that these members of the family provide a significant level of assistance to the plaintiff and his wife. The design, however, also provides for a two bedroom flat for live-in carers. Having regard to the medical and other evidence it is clear that both are unnecessary although one can easily appreciate the ties of affection, sympathy and family feeling which animate the desire of the plaintiff and his wife on the one hand to have their children with them in this time of calamity and on the other the desire of those members of the family to help as much as they can. Even so, the expense of that undertaking cannot, as the law presently stands, be placed at the first defendant's door. 14 It is clear, as I have said, that eventually the plaintiff must have appropriate accommodation. It is unlikely that this could be provided much before the expiration of 12 months. For that period therefore live-in care is not a reasonable option. After that period such care obviously would be available. 15 The cost of live-out attendant care does not vary significantly from live-in care when the additional assistance required during weekends and the like is borne in mind, although the two sums do not exactly coincide. However, giving the plaintiff compensation for that level of care upon the assumption that it will suffice and hence that the care of the family with the exception of Mrs Dimkovska is not strictly necessary however much the family may wish to help, means that the provision of a home at the level specified by the architect would result in a degree of double dipping. 16 Having regard to the purposes of the present application, it is inappropriate for me to attempt to deal, as entirely independent heads of compensation, with the cost of further nursing and attendant care and the cost of acquisition of land and the construction of an appropriate house. The latter aspect is complicated by the fact that the first defendant would be entitled to have a credit for the cost of accommodation for the plaintiff which he would have at all events expended had he not been injured. There is no material before me that enables me to do any more than make a somewhat speculative estimate of what this credit might be but it is not an insubstantial sum. Doing the best I can, it would be, I think, in the order of about $150,000. 17 I am of the view that the appropriate sum to allow as interim damages for further nursing and attendant care is $375,000. 18 In respect of the acquisition of land and the construction of a home I do not accept that the defendant should pay for a five bedroom house together with an independent flat which is the building requiring what amounts to a double block of land. Under this head I allow for land $290,000 and, making the best adjustment that I can, (which is a difficult one because no alternative expert evidence is available) I allow $400,000 for the cost of construction of a home. 19 I referred to the credit to which the defendant would be entitled to reflect the plaintiff's probable expenditure on housing and accommodation if he were not injured. That is a sum which would be calculated by reference to his lifetime. I am presently dealing only with the period between now and the trial and it is accordingly inappropriate to allow the whole of that sum. That being the principle, however, one must accept that there might be in respect of this head of damage a significant overpayment. Bearing in mind that judgment will be for a global sum and that past and future economic loss, together with general damages and future care, will need to be reflected in it I consider that even so I should not make more than a relatively slight allowance in the defendant's favour. Doing the best I can I deduct the sum of $30,000. To do otherwise may have the ironic effect of providing a sum designed to permit appropriate accommodation for the plaintiff and yet insufficient having regard to his apparent means to permit this to be done. I consider that the interim character of the present proceedings justifies a somewhat rough and ready approach to the calculation of an appropriate sum under section 76E. 20 It is not controversial that the plaintiff's loss of earnings from 13 August 1999 to 12 February 2001 is $43,680. The defendant submits that a net sum representing this amount, less the workers' compensation presently being paid, is the material amount. However, I am persuaded by Mr Neil SC, for the plaintiff, that the appropriate calculation is to give the full amount and specify the dates to enable appropriate abatement to be made of the workers' compensation sums paid for loss of income. The basis for this is clear. Even if this be a mistaken view appropriate adjustment can be made at the hearing. Accordingly, I order the first defendant to pay to the plaintiff part of the damages sought to be recovered in the proceedings, the sum of $1,078,680. I regard this sum as being a reasonable proportion of the damages which are likely to be recovered by the plaintiff in the action. 21 The extent of any contributory negligence or cognate allowance is uncertain at this stage. I am of the view, however, that it would not be of such an extent as should affect the amount which I order to be paid at this time. 22 I will reserve the question of costs in relation to both defendants. 23 I make clear that the present orders ought not to preclude the first defendant taking such action as it may be advised in respect of any contribution from the second defendant. 24 I grant a stay to the first defendant of 28 days subject to the payment within 14 days to the Protective Commissioner of $350,000 on the plaintiff's behalf. *************

DIMKOVSKI v KEN'S PAINTING & DECORATING SERVICES PTY LTD & ANOR

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