Celenza v Stockdale - [2007] WASCA 77

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CELENZA -v- STOCKDALE [2007] WASCA 77

CORAM: STEYTLER P
WHEELER JA
PULLIN JA

HEARD: 15 FEBRUARY 2007

DELIVERED : 10 APRIL 2007

FILE NO/S: CACV 21 of 2006

BETWEEN: ANTHONY UMBERTO CELENZA
Appellant
AND
STUART STOCKDALE
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :EATON DCJ
Citation  :CELENZA -v- STOCKDALE [2006] WADC 3
File No  :CIV 3011 of 2002

Catchwords:

Damages - Traffic accident - Extent of injuries - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr K J Bradford
Respondent: Mr J R Brooksby

Solicitors:

Appellant: Bradford & Co
Respondent: Greenland Brooksby

Case(s) referred to in judgment(s):

Nil

JUDGMENT OF THE COURT: This is an appeal against the judgment of Eaton DCJ who awarded damages to the appellant for injuries arising out of a motor vehicle accident. The respondent admitted negligence, but denied that the appellant suffered the loss, injury or damage pleaded. The trial was conducted between 3 and 7 October 2005. Earlier in that year, the respondent gave notice of intention to amend his defence to plead that the accident was of "such a minor nature as to be unlikely to have caused any or any significant injury to the Plaintiff". Leave to amend in those terms was granted on 14 July 2005.

The evidence relating to the accident

The accident happened on the Narrows Bridge. The appellant was driving a Toyota Dyna truck which weighed about four tonnes. He gave evidence that he was travelling at a speed of about 35 to 40 kilometres. It was raining and the road was wet. He saw that there was an accident ahead and he had to bring his truck to a stop.
The respondent was driving behind him in a Toyota Town Ace van which weighed about one tonne. The respondent applied the brakes but he "skidded slowly into [the back of the appellant's truck], just slow motion". The respondent gave evidence‑in‑chief that he was travelling at about 15 kilometres per hour before applying the brakes, and in cross‑examination said he might have been doing 20 kilometres per hour ([32]). He gave evidence that, at the point of impact, he thought he had slowed to a speed of about 5 or 6 kilometres per hour. The plastic bumper on the respondent's truck was smashed upon impact and his windscreen cracked on the right‑hand side. The cost of repairing damage to his vehicle was approximately $3000. The damage to the appellant's truck was slight. It involved a "piercing dent in the rear steel step" [12]. The dent was about "half the length of a fingernail or about 5 or 6 millimetres" deep.
The appellant was concentrating on the traffic ahead and watching the accident scene just before the impact, so he did not see the respondent's vehicle in the rear‑vision mirror before it made impact with the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] WASCA 77
Decision Date: 10 APRIL 2007

CaseChat Overview and Summary

Celenza v Stockdale is an appeal brought by the appellant against a decision of the respondent to award damages for injuries arising from a motor vehicle accident. The respondent admitted negligence but denied that the appellant suffered any loss, injury or damage as a result of the accident. The case was heard at first instance between 3 and 7 October 2005, and the respondent had leave to amend his defence to include a claim that the accident was of such a minor nature as to be unlikely to have caused any significant injury to the plaintiff. The accident occurred on the Narrows Bridge, when the appellant's truck was struck by the respondent's van. The appellant claimed to have suffered pain and injury as a result of the impact, while the respondent denied that his vehicle had caused the appellant's truck to move or that the appellant had suffered any injury. The legal issues in the case were whether the respondent's vehicle had caused the appellant's truck to move or lift, and if the appellant had suffered any injury as a result of the impact. The court found that the evidence did not support the conclusion that the appellant's truck had moved or lifted as a result of the impact, and that the appellant had not suffered any significant injury. The court found that the appellant had suffered some pain as a result of the impact, but that this was not significant enough to warrant an award of damages. The court found in favour of the respondent and dismissed the appellant's claim for damages. The court's decision was based on the evidence presented at trial, which did not support the appellant's claim for significant injury or damage. The court found that the appellant had suffered some pain as a result of the impact, but that this was not significant enough to warrant an award of damages. The court dismissed the appellant's claim and awarded costs to the respondent.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: This is an appeal against the judgment of Eaton DCJ who awarded damages to the appellant for injuries arising out of a motor vehicle accident. The respondent admitted negligence, but denied that the appellant suffered the loss, injury or damage pleaded. The trial was conducted between 3 and 7 October 2005. Earlier in that year, the respondent gave notice of intention to amend his defence to plead that the accident was of "such a minor nature as to be unlikely to have caused any or any significant injury to the Plaintiff". Leave to amend in those terms was granted on 14 July 2005. The accident happened on the Narrows Bridge. The appellant was driving a Toyota Dyna truck which weighed about four tonnes. He gave evidence that he was travelling at a speed of about 35 to 40 kilometres. It was raining and the road was wet. He saw that there was an accident ahead and he had to bring his truck to a stop. The respondent was driving behind him in a Toyota Town Ace van which weighed about one tonne. The respondent applied the brakes but he "skidded slowly into [the back of the appellant's truck], just slow motion". The respondent gave evidence‑in‑chief that he was travelling at about 15 kilometres per hour before applying the brakes, and in cross‑examination said he might have been doing 20 kilometres per hour ([32]). He gave evidence that, at the point of impact, he thought he had slowed to a speed of about 5 or 6 kilometres per hour. The plastic bumper on the respondent's truck was smashed upon impact and his windscreen cracked on the right‑hand side. The cost of repairing damage to his vehicle was approximately $3000. The damage to the appellant's truck was slight. It involved a "piercing dent in the rear steel step" [12]. The dent was about "half the length of a fingernail or about 5 or 6 millimetres" deep. The appellant was concentrating on the traffic ahead and watching the accident scene just before the impact, so he did not see the respondent's vehicle in the rear‑vision mirror before it made impact with the appellant's truck. The appellant said that he "felt someone hit me at the back and I lifted up in the seat and the truck lurched forward and I lurched back into the seat" ([9]). He gave evidence that because the brakes were on, his vehicle rocked forward on its suspension without the tyres rotating. He said that he felt a "completely strange new pain" [10]. The respondent was also asked if his vehicle caused the appellant's truck to lift or move in any direction. He replied "Absolutely not. It did not. I sustained the actual force of the - the pushing of my vehicle in was the force of the - I doubt if the actual truck actually moved" [15]. Counsel for the appellant conceded that the trial Judge was bound to conclude on the evidence that the wheels on the appellant's vehicle did not move. The appellant alighted from his vehicle and went to inspect the respondent's vehicle. The respondent was still seated in the driver's seat of his truck.

Ratio Decidendi

Legal Principle Established

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