El-Mohamad v Celenk - [2016] NSWDC 335

District Court

New South Wales

Medium Neutral Citation: El-Mohamad v Celenk [2016] NSWDC 335
Hearing dates: 9, 10, 11 March; 20 and 21 April 2016
Date of orders: 26 April 2016
Decision date: 26 April 2016
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1) Judgment for the defendant.
(2) Question of costs to be reserved to a date to be fixed.

Catchwords: DAMAGES – negligence – assessment – motor vehicle accident – hit from behind – earlier motor vehicle accident – pre-existing neck and back problems
Legislation Cited: Civil Liability Act 2002, s 5D
Motor Accidents Compensation Act 1999, s 83
Category: Principal judgment
Parties: Abir El-Mohamad (plaintiff)
Aydan Celenk (defendant)
Representation:
Counsel:
Mr L D Robison (plaintiff)
Mr J J Ryan (defendant)
Solicitors:
Sanford Legal (plaintiff)
McInnes Wilson (defendant)

File Number(s): 2013/62800
Publication restriction: None

Judgment

INTRODUCTION

Aydan Celenk was driving her car in August 2010 near Parramatta when it collided with the rear of a stationery car being driven by Abir El-Mohamad. Ms El-Mohamad claims she suffered neck and back problems and sues for damages for negligence. Breach of duty of care is admitted by Ms Celenk, the defendant. The issue is the extent of any damages suffered by Ms El-Mohamad.

BACKGROUND

Ms El-Mohamad was involved in an earlier serious car accident on 16 May 2009. She took a number of months off work and complained of neck and back problems. She commenced proceedings for damages arising out of that accident. The extent to which she had recovered from the 2009 accident was central to an attack on her credit by Ms Celenk in the present proceedings.
Another area of challenge to Ms El-Mohamad's credit focused on the seriousness of the 2010 collision.

THE 2010 COLLISION

The collision occurred on Church Street just off Parramatta Road at about 8.15am on Monday, 23 August 2010. Ms Celenk said the traffic was “heavy”, “bumper to bumper” and a “stop/start situation”. Her car was behind Ms El‑Mohamad's which was behind another car or cars as she turned into Church Street from Parramatta Road. Traffic would edge forward and stop. On one of those occasions, Ms Celenk was about half a car length behind Ms El-Mohamad's vehicle. Her car moved forward but as Ms El-Mohamad's car had stopped, her car hit Ms El-Mohamad's car. Ms Celenk put her car into park, got out of her car and said to Ms El-Mohamad, "I'm sorry I hit your car." "Are you okay?" Ms El-Mohamad responded, "Yes." They both inspected the cars and found there was no significant damage, some minor scratches. Ms Celenk subsequently received a traffic infringement notice.
This account of Ms Celenk was not challenged in cross-examination. Photographs of Ms Celenk's car were in evidence indicating some minor scratches and no panel damage.
Ms El-Mohamad gave no details of the accident in her examination-in-chief. In cross-examination she could not recall whether the traffic was heavy or "bumper to…

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 El-Mohamad v Celenk

Details

AGLC: El-Mohamad v Celenk [2016] NSWDC 335
Case: [2016] NSWDC 335
Decision Date: 26 April 2016

CaseChat Overview and Summary

The case of El-Mohamad v Celenk involved a claim for damages arising from a motor vehicle accident where the plaintiff, El-Mohamad, was struck from behind by the defendant, Celenk. The dispute centred on whether Celenk's negligence had caused or contributed to El-Mohamad's alleged injuries and damages. The matter was heard in the Supreme Court of Victoria.

The central legal issues revolved around the causation and assessment of damages. Specifically, the court needed to determine whether Celenk's negligent driving caused El-Mohamad's alleged injuries and whether those injuries were exacerbated by pre-existing conditions resulting from a prior motor vehicle accident. Additionally, the court had to assess the extent of any damages attributable to Celenk's actions.

The court held that Celenk was not negligent in causing or contributing to El-Mohamad's injuries. It was determined that El-Mohamad's pre-existing neck and back problems, stemming from an earlier motor vehicle accident, were the primary cause of his claimed injuries and that Celenk's actions did not aggravate these conditions. Consequently, the court dismissed El-Mohamad's claim, finding in favour of Celenk. The matter of costs was reserved for a later date to be determined.

Orders

Orders of the court

(1) Judgment for the defendant.

(2) Question of costs to be reserved to a date to be fixed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	El-Mohamad v Celenk [2016] NSWDC 335
Hearing dates:	9, 10, 11 March; 20 and 21 April 2016
Date of orders:	26 April 2016
Decision date:	26 April 2016
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Judgment for the defendant. (2) Question of costs to be reserved to a date to be fixed.
Catchwords:	DAMAGES – negligence – assessment – motor vehicle accident – hit from behind – earlier motor vehicle accident – pre-existing neck and back problems
Legislation Cited:	Civil Liability Act 2002, s 5D Motor Accidents Compensation Act 1999, s 83
Category:	Principal judgment
Parties:	Abir El-Mohamad (plaintiff) Aydan Celenk (defendant)
Representation:	Counsel: Mr L D Robison (plaintiff) Mr J J Ryan (defendant) Solicitors: Sanford Legal (plaintiff) McInnes Wilson (defendant)
File Number(s):	2013/62800
Publication restriction:	None