El-Mohamad v Celenk

[2017] NSWCA 242

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

El-Mohamad v Celenk [2017] NSWCA 242

Hearing dates:

14 September 2017

Decision date:

22 September 2017

Before:

McColl JA at [1];
Basten JA at [2];
N Adams J at [77]

Decision:

(1)   Dismiss the appeal from the judgment of the District Court dated 26 April 2016.

 (2)   Order that the appellant pay the respondent’s costs in this Court.

Catchwords:

EVIDENCE – assessment of damages – certificate of whole person impairment – relevance to assessment of economic loss

 

PERSONAL INJURY – motor vehicle accident – Motor Accidents Compensation Act 1999 (NSW), s 83 – whether insurer had admitted causation of injury – payment of claimant’s treatment expenses – admission of liability – whether given appropriate weight – later denial of liability

  PERSONAL INJURY – motor vehicle accident – damages claimed for injuries sustained as a result of second of two accidents – whether claimant established further injuries in second accident –credibility of claimant’s evidence – whether reasons adequate

Legislation Cited:

Civil Liability Act 2002 (NSW), Pt 3
Motor Accidents Compensation Act 1999 (NSW), ss 61, 72, 80, 81, 83, 131

Cases Cited:

Brown v Lewis (2006) 65 NSWLR 587; [2006] NSWCA 87
Heuston v Yore Contractors Pty Ltd (unrep, 9 March 1992, Hunt CJ at CL).
Lustre Hosiery Ltd v York (1935) 54 CLR 134; [1935] HCA 71
Motor Accidents Authority of NSW v Mills (2010) 78 NSWLR 125; [2010] NSWCA 82
Pham v Shui [2006] NSWCA 373; 47 MVR 231
Smalley v Motor Accident Authority of New South Wales (2013) 85 NSWLR 580; [2013] NSWCA 318
Tchen v Nominal Defendant [2010] NSWCA 245

Category:

Principal judgment

Parties:

Abir El-Mohamad (Appellant)
Aydan Celenk (Respondent)

Representation:

Counsel:
Mr D Hooke SC/Mr L D Robison (Appellant)
Mr L King SC/Mr J J Ryan (Respondent)

  Solicitors:
Sanford Legal (Appellant)
McInnes Wilson Lawyers (Respondent)

File Number(s):

2016/151211

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Citation:

[2016] NSWDC 335

Date of Decision:

26 April 2016

Before:

P T Taylor SC DCJ

File Number(s):

2013/62800

Judgment

1. McCOLL JA: I agree with Basten JA.

2. BASTEN JA: On 23 August 2010 the appellant, Ms Abir El-Mohamad, was involved in a motor vehicle accident. She made a claim in damages against the driver of the car which ran into her from the rear, Ms Aydan Celenk. Her statement of claim alleged that she had suffered injury to her (i) cervical spine, (ii) lumbar spine and (iii) stomach, together with (iv) psychological and psychiatric injuries. The claim listed 19 separate continuing disabilities. A schedule of damages provided at trial claimed an amount in excess of $900,000.

3. On 16 May 2009, the appellant had been involved in an earlier car accident, again involving another vehicle colliding with her car. Although she brought proceedings in relation to that accident, those proceedings were dismissed by consent on 2 November 2012. On 23 February 2013 she commenced proceedings in the District Court in relation…