Kylie Tricia Kaufman v Wayne Kozak - [2013] ACTCA 30

KYLIE TRICIA KAUFMAN v WAYNE KOZAK
[2013] ACTCA 30 (18 October 2013)

APPEAL AND NEW TRIAL – PERSONAL INJURY – injury to lower back in MVA –whether trial judge in error in rejecting evidence of appellant’s experts – whether trial judge in error in making adverse findings on appellant’s credibility – whether trial judge’s findings supported by the evidence – where existing injury to lower back – where existing injury was to different part of lower back to injury the subject of the claim

Australian Capital Territory v Crowley [2012] ACTCA 52
Briginshaw v Briginshaw (1938) 60 CLR 336

Fox v Percy (2003) 214 CLR 118
Fedorow v Fedorow [2011] ACTCA 10

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 23 - 2012
No. SC 512 of 2008

Judges: Penfold, Burns and Cowdroy JJ
Court of Appeal of the Australian Capital Territory
Date: 18 October 2013

IN THE SUPREME COURT OF THE     )          No. ACTCA 23 - 2012
  )          No. SC 512 of 2008
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:KYLIE TRICIA KAUFMAN
Appellant

AND: WAYNE KOZAK
Respondent

ORDER

Judges:  Penfold, Burns and Cowdroy JJ
Date:  18 October 2013
Place:  Canberra

THE COURT ORDERS THAT:

The order of the trial judge entering judgment for the appellant in the sum of $40,600.00 is set aside.

The matter is remitted to the Master for assessment of damages in accordance with these reasons.

The respondent is to pay the appellant’s costs of the appeal.

IN THE SUPREME COURT OF THE     )          No. ACTCA 23 - 2012
  )          No. SC 512 of 2008
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:KYLIE TRICIA KAUFMAN
Appellant

AND: WAYNE KOZAK
Respondent

Judges:  Penfold, Burns and Cowdroy JJ
Date:  18 October 2013
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

On 5 June 2007, the appellant was injured when a Triton utility driven by the respondent collided with the rear of her Subaru station wagon at the intersection of Coulter Drive and Belconnen Way in the Australian Capital Territory. She commenced proceedings in the ACT Supreme Court claiming damages for those injuries. The respondent ultimately admitted that he had breached his duty of care to the appellant. On 29 May 2012, the trial judge entered judgment for the appellant in the sum of $40,600.00. She also ordered that the respondent pay the appellant’s costs of the proceedings, however that order was suspended for 14 days to allow either party to list the matter for further argument on the question of costs. There is no indication that the matter was further listed.

The appellant now appeals from these orders, except from the order for costs. The grounds of the appeal are:

(a)Her Honour erred in rejecting the evidence of Dr Brook, a doctor who…

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: [2013] ACTCA 30
Decision Date: 18 October 2013

CaseChat Overview and Summary

Kylie Tricia Kaufman (the appellant) appealed to the Court of Appeal of New South Wales against a decision of a trial judge concerning personal injury damages arising from a motor vehicle accident. The primary dispute concerned the extent to which the appellant's pre-existing lower back condition should affect the assessment of damages for the injury sustained in the accident, and whether the trial judge had erred in rejecting expert evidence and making adverse credibility findings against the appellant.

The central legal issues before the Court of Appeal were whether the trial judge had erred in rejecting the evidence of the appellant's experts, whether the trial judge's adverse findings on the appellant's credibility were supported by the evidence, and whether the trial judge's findings regarding the appellant's pre-existing lower back injury were adequately substantiated. The court was required to consider whether the existing injury to a different part of the appellant's lower back was correctly taken into account in the assessment of damages for the injury claimed.

The Court of Appeal found that the trial judge had erred in rejecting the evidence of the appellant's experts and in making adverse credibility findings that were not sufficiently supported by the evidence. The court reasoned that the trial judge's approach to the pre-existing injury had not properly accounted for the appellant's expert evidence regarding the causal link between the accident and the claimed injury, and that the findings of fact were not adequately based on the evidence presented. Consequently, the court set aside the trial judge's order for judgment and remitted the matter to the Master for a fresh assessment of damages. The appellant was awarded costs of the appeal.

Orders

Orders of the court

1. The order of the trial judge entering judgment for the appellant in the sum of $40,600.00 is set aside.

2. The matter is remitted to the Master for assessment of damages in accordance with these reasons.

3. The respondent is to pay the appellant’s costs of the appeal.

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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