Giamarelos v Motor Accident Commission - [2015] SASC 114

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
GIAMARELOS v MOTOR ACCIDENT COMMISSION
[2015] SASC 114
Judgment of The Honourable Justice Bampton
7 August 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - REMISSION FOR REHEARING
A Magistrate awarded damages to the appellant for personal injuries sustained in a motor vehicle collision on 26 March 2007 – no allowance was made for loss of future earning capacity – that decision was appealed – the appeal was allowed – the Court found that the proper assessment should increase the figure for non-economic loss and include an allowance for loss of future earning capacity – judgment was set aside and the appeal Court ordered on 12 September 2013 that the matter be referred to a different Magistrate for assessment of damages based solely on the transcript of evidence and the exhibits taken in the previous hearing together with the appeal Court’s reasons.
After discussion regarding the nature of the rehearing the Magistrate proceeded to rehear the matter based solely on the transcript of evidence and the exhibits taken in the previous hearing together with the reasons of the appeal Court and the submissions of the parties – the Magistrate awarded damages in the sum of $8,400 to the appellant for non-economic loss but made no allowance for loss of future earning capacity.
The appellant appeals this decision on the grounds that the parameters of the rehearing had been clearly established by the 12 September 2013 order and the Magistrate misconceived the nature and scope of the rehearing and did not assess damages as directed by the appeal Court.
Held:
1. The parties agreed to a rehearing limited to two heads of damages but did not agree credit findings could be made on the rehearing. As such the matter should have proceeded to a full rehearing with respect to the assessment of non-economic loss and loss of future earning capacity.
2. Appeal allowed, judgment of the Magistrate set aside, matter remitted for retrial before a different Magistrate.
Civil Liability Act 1936 (SA) s 5; Magistrates Court Act 1991 (SA) s 40; Motor Vehicles Act 1959 (SA) s 113(1); Supreme Court Civil Rules 2006 (SA) r 286, referred to.
CSR Ltd v Della Maddalena (2006) 224 ALR 1; Fox v Percy (2003) 214 CLR 118; Khneiger v Cookson [2009] SASC 203; Waterways Authority v Fitzgibbon (2005) 221 ALR 402; Giamarelos v Motor Accident Commission [2013] SASC 138, considered.

GIAMARELOS v MOTOR ACCIDENT COMMISSION
[2015] SASC 114
Magistrates Appeal: Civil
BAMPTON J.

On 26 March 2007, Mr Giamarelos was the passenger in the front seat of a motor vehicle, driven by Mr Ferlas, which was stationary in traffic on North East Road, Windsor Gardens when another vehicle collided with the rear of the vehicle (the collision).
The proceedings
Mr Giamarelos issued proceedings in the District Court on 18 November 2008 for damages for the injuries he suffered in the collision.

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: [2015] SASC 114
Decision Date: 7 August 2015

CaseChat Overview and Summary

In the case of Giamarelos v Motor Accident Commission, the appellant sought damages for personal injuries sustained in a motor vehicle collision. The dispute arose from the assessment of damages by a Magistrate, which was subsequently appealed. The Supreme Court was required to review the Magistrate’s reassessment of damages and determine whether the reassessment was conducted correctly in accordance with the appeal court's directions.

The legal issues before the court involved the interpretation of the appeal court's order for a rehearing of the damages assessment and whether the Magistrate correctly followed the order in conducting the reassessment. Specifically, the court had to consider whether the reassessment was properly conducted based on the evidence and submissions presented, and whether there was any bias or procedural error that affected the fairness of the reassessment.

The court concluded that the Magistrate did not adequately follow the appeal court's order, which required a rehearing on the question of damages. The Magistrate's refusal to conduct a full rehearing and instead rely on the previous evidence and submissions was found to be contrary to the appeal court's direction. The court held that the reassessment did not properly consider the issues in dispute, and the Magistrate's decision was set aside. The matter was remitted for a rehearing on the question of damages before a different Magistrate.

The Supreme Court allowed the appeal, set aside the judgment of the Magistrate, and remitted the case for a rehearing on the question of damages before a different Magistrate, ensuring the parties were restored to their position before the original reassessment.

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

BAMPTON J

After an adjournment, Mr Saies made an application that Magistrate Milazzo disqualify himself on the basis of perception of bias. Magistrate Milazzo refused and the hearing of the reassessment proceeded. Conclusion What transpired in the Magistrates Court before Magistrate Milazzo was brought about by the 12 September 2013 order. Magistrate Milazzo, upon being handed the 12 September 2013 sealed order, understandably considered with significant disquiet that he was bound by it. Prior to this it would appear he was going to, as the parties were not in agreement, convene a full rehearing with respect to the assessment of non‑economic and future loss of earning capacity. Regrettably, the matter did not proceed to a full rehearing on these heads of damages. I am obliged on an appeal to determine this matter myself if I can and only order a retrial if I cannot do so.[23] [23] Fox v Percy (2003) 214 CLR 118. I have concluded that, despite the cost and further delay in finality, fairness dictates that there be must be a rehearing. Consequent upon Magistrate Gumpl’s, Anderson J’s and Magistrate Milazzo’s judgments, there needs to be a re‑evaluation of Mr Giamarelos’ evidence and that of his witnesses. I am not satisfied I can safely arrive at the correct judgment by drawing my own inferences of fact and attempting to resolve the issues in dispute on an examination of the record. [24][24] Khneiger v Cookson [2009] SASC 203. The parties must be restored to the position they were in when Anderson J allowed the appeal, set aside the award of damages and remitted the matter for rehearing on 5 September 2013. I allow the appeal, set aside the judgment of Magistrate Milazzo and remit the case for rehearing on the question of damages before a different Magistrate.

Ratio Decidendi

Legal Principle Established

Established by: BAMPTON J

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