El-Mohamad v Celenk

Case [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…

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AGLC
El-Mohamad v Celenk [2017] NSWCA 242
Case
[2017] NSWCA 242
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute arising from a motor vehicle accident. The appellant, El-Mohamad, sought to appeal a judgment of the District Court of New South Wales, which had been delivered on 26 April 2016. The respondent was Celenk.

The primary legal issues before the Court of Appeal were whether the District Court had given appropriate weight to the insurer's earlier admission of liability, which had included the payment of the claimant's treatment expenses, in circumstances where the insurer later denied liability. Further, the court had to determine whether the claimant had established further injuries in a second accident, considering the credibility of the claimant's evidence and the adequacy of the reasons provided for the findings. The relevance of a certificate of whole person impairment to the assessment of economic loss was also a consideration.

The Court of Appeal dismissed the appeal, upholding the judgment of the District Court. The court found that the District Court had adequately considered the evidence before it, including the insurer's conduct and the claimant's evidence regarding the injuries sustained in the second accident. The reasoning applied involved an assessment of the weight to be given to various pieces of evidence in determining causation and the extent of damages.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs in the Court of Appeal.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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