Christodoulakis v Aly - [2009] WASCA 136

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CHRISTODOULAKIS -v- ALY [2009] WASCA 136

CORAM: PULLIN JA
MILLER JA
NEWNES JA

HEARD: 7 MAY 2009

DELIVERED : 7 MAY 2009

PUBLISHED : 6 AUGUST 2009

FILE NO/S: CACV 81 of 2008

BETWEEN: NAPOLEON CHRISTODOULAKIS
Appellant
AND
MAHMOUD HASAN ABBAS ALY
First Respondent
MAREE-CARMEL MESTICHELLI
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :EATON DCJ
Citation  :CHRISTODOULAKIS -v- ALY & ANOR [2008] WADC 107
File No  :CIV 428 of 2006

Catchwords:

Appeal - Assessment of damages for personal injuries - Extent to which injuries caused or aggravated by two motor vehicle accidents - Whether removal of portion of meniscus in knee would aggravate degeneration in knee joint - Whether trial judge gave adequate reasons for preferring one medical opinion over another

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C(3)

Result:

Appeal allowed on grounds 1 and 2
Cross-appeal dismissed
Judgment set aside
Order for retrial before a different judge

Category: B

Representation:

Counsel:

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

Solicitors:

Appellant:     Bradford & Co
First Respondent           :     Williams Handcock
Second Respondent      :     Williams Handcock

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

Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Christodoulakis v Aly [2008] WADC 107
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273

JUDGMENT OF THE COURT: At the hearing of this appeal, the court allowed the appeal on grounds 1 and 2 of the grounds of appeal, dismissed the cross‑appeal, set aside the judgment below and ordered a retrial before a different judge of the District Court.
The court undertook to give brief reasons if required. Those reasons have been required and these are the reasons.

Nature of the proceedings

The appellant brought an action for personal injuries sustained in two motor vehicle accidents which occurred on 8 August 2001 and 12 August 2004. The first and second respondents were, respectively, the driver of a vehicle which collided with a bus in which the appellant was travelling on 8 August 2001, and the driver of a vehicle which collided with the Daihatsu sedan which the appellant was driving on 12 August 2004. Each of the first and second respondents admitted at trial that they had driven negligently. Each denied that the appellant had sustained any injury, loss or damage in the motor vehicle accidents. The first respondent denied absolutely that the appellant had suffered any injury, loss or damage as a result of the first motor vehicle accident. The second respondent made the same denial and pleaded that there was neither any injury sustained by the appellant in the second motor vehicle accident, nor any aggravation of an underlying injury, with the consequence that the appellant was not entitled to the relief claimed, or…

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.

Continue reading Christodoulakis v Aly

Details

AGLC: Christodoulakis v Aly [2009] WASCA 136
Case: [2009] WASCA 136
Decision Date: 7 MAY 2009

CaseChat Overview and Summary

The appellant, in this case, sought damages for injuries sustained in two separate motor vehicle accidents that occurred on 8 August 2001 and 12 August 2004. The first respondent was the driver of a vehicle that collided with a bus in which the appellant was travelling on 8 August 2001, while the second respondent was the driver of a vehicle that collided with the Daihatsu sedan which the appellant was driving on 12 August 2004. Both respondents admitted to negligent driving but denied that the appellant had suffered any injury, loss, or damage in the accidents. The appellant's actions against both respondents were tried in the District Court at Perth, between 10 and 13 March 2008, and the trial judge concluded that the appellant had established an entitlement to damages against each of the respondents.

The legal issues before the court were whether the trial judge gave adequate reasons for preferring one medical opinion over another, and whether the injuries caused or aggravated by the two motor vehicle accidents warranted the awards of damages. Specifically, the court had to consider the extent to which the removal of a portion of the meniscus in the knee would aggravate degeneration in the knee joint. The appellant argued that the trial judge's assessment of damages was inadequate and that the awards for general damages and economic loss were substantially below the limits of sound discretionary judgment.

The court found that the trial judge had not given adequate reasons for preferring one medical opinion over another, particularly in relation to the extent of the appellant's injuries and the causal relationship between the injuries and the motor vehicle accidents. The court held that the trial judge's findings on these matters were erroneous and amounted to a misapprehension of the evidence. The court also found that the awards for general damages and economic loss were manifestly inadequate and substantially below the limits of sound discretionary judgment. The court allowed the appeal on grounds 1 and 2, dismissed the cross-appeal, set aside the judgment below, and ordered a retrial before a different judge of the District Court.

Orders

Orders of the court

Appeal allowed on grounds 1 and 2

Cross-appeal dismissed

Judgment set aside

Order for retrial before a different judge

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: At the hearing of this appeal, the court allowed the appeal on grounds 1 and 2 of the grounds of appeal, dismissed the cross‑appeal, set aside the judgment below and ordered a retrial before a different judge of the District Court. The court undertook to give brief reasons if required. Those reasons have been required and these are the reasons. The appellant brought an action for personal injuries sustained in two motor vehicle accidents which occurred on 8 August 2001 and 12 August 2004. The first and second respondents were, respectively, the driver of a vehicle which collided with a bus in which the appellant was travelling on 8 August 2001, and the driver of a vehicle which collided with the Daihatsu sedan which the appellant was driving on 12 August 2004. Each of the first and second respondents admitted at trial that they had driven negligently. Each denied that the appellant had sustained any injury, loss or damage in the motor vehicle accidents. The first respondent denied absolutely that the appellant had suffered any injury, loss or damage as a result of the first motor vehicle accident. The second respondent made the same denial and pleaded that there was neither any injury sustained by the appellant in the second motor vehicle accident, nor any aggravation of an underlying injury, with the consequence that the appellant was not entitled to the relief claimed, or any relief. The appellant's actions against both respondents were tried in the District Court at Perth, between 10 and 13 March 2008. The trial judge concluded in his reasons (Christodoulakis v Aly [2008] WADC 107), delivered on 23 July 2008, that the appellant had established an entitlement to damages against each of the respondents, and awarded him $35,080 by way of damages against the first respondent and $22,310 by way of damages against the second respondent. The appellant appeals against the adequacy of the awards of damages against each of the respondents. The respondents cross‑appeal in relation to the awards for general damages and economic loss. There are seven grounds of appeal, six of which are particularised in considerable detail. Without particulars, the grounds are in the following terms:1.The Learned Trial Judge erred in fact and in law in concluding that in the bus accident of 8 August 2001, the Appellant suffered a soft tissue injury to the left knee which resolved in months rather than years....2.The finding by the Learned Trial Judge that there was no causal relationship between existing left knee symptoms and either accident was erroneous and amounted to a misapprehension of Mr Kagi's evidence which had been accepted by the Learned Trial Judge....3.The Learned Trial Judge having correctly found that the Appellant had suffered a soft tissue injury to the neck and right shoulder and an aggravation of a pre‑existing right shoulder injury in the bus accident (R64), erroneously concluded (R91) that such injuries resolved over a 'fairly short period of time'. Such conclusion was against the weight of the evidence....4.The Learned Trial Judge, having found that the Appellant had aggravated a pre‑existing right shoulder injury in the bus accident erred in failing to find both the extent and duration of such aggravation and the extent to which it deprived the Appellant of the chance of recovery from the pre‑existing shoulder injury. (R86)...5.The Learned Trial Judge erred in fact and law in finding that the pre‑existing should injury was the principle [sic principal], if not the only cause of the Appellant's loss of earning capacity....6.The awards for past economic loss of earning capacity were manifestly inadequate and substantially below the limits of sound discretionary judgment....7.The award for general damages for the bus accident caused injuries (12%) was manifestly inadequate and substantially below the limit of sound discretionary judgment....

Ratio Decidendi

Legal Principle Established

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