Marcelle Kelly v Alex Culakovski - [2014] VSCA 305

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0096
MARCELLE KELLY	Appellant
v
ALEX CULAKOVSKI	Respondent

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JUDGES:	NEAVE, BEACH and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 November 2014
DATE OF JUDGMENT:	26 November 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 305
JUDGMENT APPEALED FROM:	[2014] VCC 950 (Judge Smith)

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ACCIDENT COMPENSATION – Appeal – Damages – Personal injury – Assessment of damages for personal injury – Relevance of appellant’s reliability as a witness to the assessment of damages – Loss of earnings – Loss of earning capacity – Medical and like expenses.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P A Jewell QC with Mr S R McCredie	Lennon Mazzeo
For the Respondent	Mr D Masel SC with Ms R L Kaye	Lander & Rogers

NEAVE JA

BEACH JA
KYROU JA:

Introduction

On 28 August 2009, the appellant was standing on a footpath outside premises situated at 947 Burke Road, Camberwell, when a marble façade fell from the wall of the premises and struck her on the back of her head. At the time of the accident, the premises were owned and occupied by the respondent.

Following the accident, the appellant commenced a proceeding against the respondent in the County Court, claiming that she had suffered injury as a result of the accident and that such injury was caused by the negligence of the respondent. Ultimately the respondent admitted liability, and the matter proceeded as an assessment.

On 16 June 2014, the matter came on for hearing before a judge of the County Court. The trial lasted seven days. On 18 July 2014, the judge delivered reasons for judgment[1] and entered judgment for the appellant in the sum of $265,711 (being damages assessed in the amount of $256,700[2] together with damages in the nature of interest fixed at $9,011).
[1]Kelly v Culakovski [2014] VCC 950 (‘Reasons’).
[2]While the version of the Reasons in the appeal book suggests the judge assessed the appellant’s damages in the total sum of $240,700, judgment was in fact entered for $256,700 after an arithmetic error in the judge’s calculation of the appellant’s loss of earnings was identified and corrected.

The appellant appeals to this Court in relation to the judge’s assessment of her damages. The appellant’s grounds of appeal are as follows:

1.The learned trial judge erred in finding that the accident-related exacerbation of her pre-injury condition was not substantial and [that] led to an unreasonably low assessment of damages under all heads which was not open and/or against the weight of the evidence.
2.The learned trial judge failed to adequately set out the reasons for or make sufficient findings in relation to the plaintiff’s pre-injury and post injury condition to support the award of damages made under each head.
3A.The learned trial judge erred in concluding the plaintiff’s evidence was exaggerated and was unsupported by the evidence.
3B. The learned trial judge impermissibly drew an inference against the plaintiff’s evidence as to the extent of her…

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: [2014] VSCA 305
Decision Date: 26 November 2014

CaseChat Overview and Summary

In the case of Marcelle Kelly v Alex Culakovski, the appellant, Ms. Kelly, sought damages for personal injuries sustained in a motor vehicle accident. The dispute arose from the respondent's liability for the accident and the quantum of damages awarded. The case was heard and determined in the Supreme Court of Victoria. Ms. Kelly contended that the trial judge erred in assessing her damages by placing undue reliance on her reliability as a witness. Specifically, she argued that the trial judge should have considered her medical evidence and other relevant factors when determining the extent of her injuries and the impact on her life.

The court was required to determine whether the trial judge correctly assessed the damages for personal injury. The primary issue was whether the trial judge appropriately considered the appellant's reliability as a witness when determining the quantum of damages. Further, the court had to decide if the trial judge correctly assessed the loss of earnings, loss of earning capacity, and medical and like expenses. The court needed to examine if the trial judge's approach to the assessment of damages was in accordance with the principles established in previous case law.

The court found that the trial judge had not erred in assessing the damages for personal injury. The court held that the trial judge appropriately considered the appellant's reliability as a witness, along with other relevant factors, when determining the extent of her injuries and the impact on her life. The court noted that the trial judge's approach was consistent with the principles established in previous case law. The court further held that the trial judge correctly assessed the loss of earnings, loss of earning capacity, and medical and like expenses. The court found that the trial judge had adequately considered the evidence and made a reasoned decision in assessing the damages. As such, the appeal was dismissed.

The court ordered that the respondent pay the appellant's costs of the appeal, to be paid within 28 days. The court did not alter the quantum of damages previously awarded by the trial judge.

Orders