Kolomaka v Allied Industrial Services Pty Ltd [2014] NSWSC 1294

Supreme Court New South Wales

Medium Neutral Citation: Kolomaka v Allied Industrial Services Pty Ltd [2014] NSWSC 1294 Hearing dates: 17/09/2014 Decision date: 17 September 2014 Jurisdiction: Common Law Before: Campbell J Decision: See paragraph 21 Catchwords: PROCEDURE - civil - judgments and orders - consent orders - court approval required for settlement - where plaintiffs minors Legislation Cited: Civil Procedure Act 2005 (NSW), ss 76 and 77 Compensation to Relatives Act 1897 (NSW) Legal Profession Act 2004 (NSW) Workers Compensation Act 1987 (NSW Category: Interlocutory applications Parties: Kristy Louise Kolomaka (First Plaintiff) Lyniana Kolomaka (Second Plaintiff) Saane Kolomaka (Third Plaintiff) Taimani Kolomaka (Fourth Plaintiff) Representation: Counsel: D Campbell SC with S Longhurst (Plaintiffs) L King SC with P Khandhar (Defendants) Solicitors: Nikolovski Lawyers (Plaintiffs) HWL Ebsworth (Defendant) File Number(s): 2010/350774

Judgment 1I have before me what are in effect five claims arising out of the tragic death at work on 22nd May 2008 of Mr Setaleki Kolomaka, the husband and father of the plaintiffs. It is unnecessary for me to go into the circumstances that led to his death because the defendant, his employer, has admitted liability for the consequences of it. The five claims relate to a claim for the financial injury to his dependents brought about by his death, and the claims for damages for nervous shock brought on behalf of his widow and three daughters. At the time of his death, the three girls were aged eight, six and five and are now 14, 13 and 11. 2The parties have settled the proceedings and seek the Court's approval of the settlement pursuant to s 76 of the Civil Procedure Act 2005 (NSW) and orders for payment of the entitlements of the girls under s 77 of that Act. parties have settled the proceedings and seek the Court's approval of the settlement. 3Earlier this week, the parties provided me with working copies of the evidence they proposed to rely upon in the action, which was listed for hearing before me. These documents comprised volumes of medical evidence for each party, actuarial evidence in relation to the financial aspects, and other relevant material, including reports assessing the monetary value of Mr Kolomaka's services to his family and family home. 4Because of the procedures adopted by the Court in requiring the medical experts and occupational therapists to confer and produce a joint report, such differences, as there were between the experts in the various specialties, seem to have been resolved. The experts, if not in complete agreement, are at least in agreement to a very large extent. However, that does not necessarily allow the case to decide itself and, as in all matters, there still remains room for differences of opinion as to the effect of the agreement of the experts upon the measure of damages to which each plaintiff may have been entitled by application of the compensatory principle. 5The parties, who are represented by very experienced senior and junior counsel in this field, asked for some time to explore the possibility of settlement, which I was happy to grant. The parties have been successful in those endeavours, and a fund of $XXXXXXX, in addition to amounts paid under the workers compensation legislation, and costs on the usual basis, has been offered by the defendant to the plaintiffs, subject to apportionment. The plaintiffs have expressed a desire, through Mrs Kolomaka, to accept that offer which has been put before me for approval. 6In support of the application for approval, Mr Campbell SC has read an affidavit of Mrs Kolomaka affirmed on 16th September 2014 and of Ms Catherine Young, the solicitor in the office of the plaintiffs' solicitor with responsibility for the carriage of the matter. Ms Young has attached to her affidavit much of the medical evidence, the actuarial report, a joint confidential memorandum of advice by Mr Campbell and Mr Longhurst , and witness statements. I have read all of that material in chambers during the time that the parties took to further their negotiations. 7As I have said, doubtless minds may differ about the measure of damages payable in each case, notwithstanding the substantial agreement as to the condition of the plaintiffs and some of the other consequences for them of the death of their husband and father. 8The total sum, when one takes into account the amount already paid under the Workers Compensation Act 1987 (NSW), is something over $X million gross, plus costs. One of course cannot measure the appropriateness of the sum simply by reference to its magnitude, however everyone would appreciate, for members of the community of ordinary financial circumstance, including judges and lawyers, it is a very substantial sum of money. 9I have had careful regard to the medical evidence. There was no doubt that the condition of each of the plaintiffs is genuine. There is no doubt that Mrs Kolomaka's condition is severe and, I make no criticism by this, entirely understandable, to some extent, the severity of her condition has somewhat fed the condition of the children which makes the question of their prognosis rather difficult for the experts to assess. It is to be hoped, perhaps, that as they gain their majority and become more independent in life, that some of the tragic effects of their father's untimely death will be overcome. It seems, perhaps, the same cannot be said for Mrs Kolomaka. However, I am not concerned with approving that part of the settlement that relates to her in her own right. She is of course is sui juris and entitled to make her own decisions. 10I also fully appreciate that, as a mother, she is very concerned about the condition of her daughters and I have taken fully into account her desires in relation to the apportionment of the settlement moneys payable under the Compensation to Relatives Act 1897 (NSW) to the girls as well as her thinking about how their entitlements should be approached for their nervous shock claims, notwithstanding the possible differences between them in that regard. 11I have also taken into account that there has already been apportionment of the death benefit payable under the workers compensation legislation which is set out in paragraph 11 of Mrs Kolomaka's affidavit which, to some extent, when added back to the figures proposed for settlement before me, appropriately reflects, for my purposes, the differences that should be reflected having regard, basically, to the differences in age between each of the girls. 12I also think that Mrs Kolomaka has taken a very sensible approach in being desirous of settling the case rather than leaving it to the uncertainty of judicial decision. 13I acknowledge that settlement of the case is in the interests of her and the children, given that it may be traumatic to require them to re-live what they have been through in the process of giving evidence and it is appropriate for me, I think, to respect her desire in that regard, to some extent. 14In any event, I have paid careful attention to the confidential memorandum of advice provided by Mr Campbell and Mr Longhurst at the request of Ms Young and have carefully taken into account the approach that those learned practitioners commend to me. It seems to me that the apportionment that they suggest, firstly, under the Compensation to Relatives Act appropriately reflect the approach to apportionment the Court should take in the application of section 4 of that legislation. 15Turning to the claim of each of the girls for damages for nervous shock, I bear in mind that the jurisdiction conferred by s 76 of the Civil Procedure Act is a manifestation of the Court's protective jurisdiction and that my primary concern should be to safeguard the welfare of each of the girls. 16I have had regard to the assessment proposed by learned counsel and it seems to me to be a reasonable approach to the assessment of damages in the case, given the imponderables that the assessment of these cases turn on many imponderables because the girls were all so young and a long way short of being fully formed personalities at the date of their father's death. 17Moreover, as I have said, the prognosis is uncertain and, I would have thought, taking the medical evidence as a whole, there is at least a good prospect that there is reason for optimism in the medium to longer term. 18Accordingly, to the extent to which I am required by s 76 to approve this compromise, I think it an appropriate settlement of the case, so far as it concerns the rights of the children, and in accordance with the provisions of s 76(4) I approve the agreement of the parties for compromise. 19There is one other matter to which I make reference. Application is made for an order under s 77, that the sum of $20,000 may be deducted from the amount apportioned to the nervous shock claim of each of the girls to be held in the trust account of the plaintiffs' solicitor on account of the unrecoverable margin of legal costs on a solicitor and client basis over and above party and party costs payable by the defendant. I have given the matter close consideration and, upon the undertaking of Mr Nikolovski, in terms I will spell out in a moment, I am satisfied that it is appropriate for me to make an order in that regard. 20It has been made emphatically clear to me that the figure of $20,000 sought is a cap on the amount that may be properly charged in respect of the excess of solicitor and client costs over party and party costs. If that excess in fact exceeds the amount recovered for party and party costs, in the best traditions of his honourable profession, Mr Nikolovski will wear that himself. To the extent to which, in the event, the estimate of $20,000 in each case proves generous, he will account to the New South Wales Trustee and Guardian for the balance. 21Upon the undertaking of Mr Nikolovski, the solicitor for the plaintiff to: (1)Promptly comply with his obligations under the Legal Profession Act 2004 (NSW) in relation to the costs payable by or on behalf of Lyniana, Saane, Taimani Kolomaka and to account for the New South Wales Trustee and Guardian for any surplus; and (2)To hold and maintain the money received in his practice trust account until final accounting, (3)I declare that the sum of $20,000 is an authorised deduction for the purpose of clauses 10, 11 and 12 of the form of consent judgment dated today and signed by the legal representatives of the parties; (4)By consent and without admission of liability I make an order in terms of paragraph 1 of the consent judgment; (5)I enter judgment in accordance with paragraph 2; (6)On the basis of the evidence I have read, I make findings in accordance with paragraph 3 pursuant to the provisions of s 4, Compensation for Relatives Act 1898. I apportion the judgment in paragraph 2, in the exercise of my discretion, in accordance with paragraph 4; (7)I pronounce judgment in favour of the first plaintiff in accordance with paragraph 5; (8)For the reasons I have given, I pronounce judgment in favour of the second plaintiff in accordance with paragraph 6; (9)For the reasons I have given I pronounce judgment in favour of the third plaintiff in accordance with paragraph 7; (10)For the reasons I have given I pronounce judgment in favour of the fourth plaintiff in accordance with paragraph 8; (11)I make an order in accordance with paragraphs 9, 10, 11 and 12. I note the matters contained in paragraphs 13, 14 and 16. And I note the agreement of the parties recorded in paragraph 17 that the terms of their settlement are to be kept confidential except as required by law. 22I congratulate the parties on arriving at the settlement. I hope I may be permitted to say, if my reasons did not make it clear enough, Mrs Kolomaka, I think you have approached the matter with great care and in a very sensible fashion. I wish you and your family, all the best for your future.