SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
Smith v Pangallo
Citation:
[2017] ACTCA 61
Hearing Date:
8 November 2016
DecisionDate:
15 December 2017
Before:
Penfold, Burns and Perry JJ
Decision:
See [103] – [107]
Catchwords:
APPEAL – PERSONAL INJURY – Pedestrian and motor vehicle accident – second defendant appealed assessment of general damages, assessment of contributory negligence, assessment of plaintiff’s creditworthiness, failure to admit evidence – cross-appeal on contributory negligence – consideration of evidence of plaintiff’s creditworthiness – admissibility of pleadings, judgments and orders in other proceedings – Evidence Act 2011 (ACT) ss 69, 91 – apportionment of liability – primary judge’s consideration of all the relevant circumstances – Civil Law (Wrongs) Act 2002 (ACT) s 102(1) – consideration of previous awards of damages in other cases – long history of medical complaints in present case as well as serious non-accident related conditions
I have had the benefit of reading the judgment of Burns…
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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Smith v Pangallo [2017] ACTCA 61
Case
[2017] ACTCA 61
Decision Date
CaseChat Overview and Summary
The appeal concerned a personal injury claim arising from a motor vehicle accident involving a pedestrian and a vehicle driven by the second defendant. The second defendant appealed the primary judge's assessment of general damages, the finding of contributory negligence, the assessment of the plaintiff's creditworthiness, and the exclusion of certain evidence. The plaintiff cross-appealed on the issue of contributory negligence. The appeal was heard by Penfold, Burns, and Perry JJ.
The court was required to determine several legal issues. These included the admissibility of pleadings, judgments, and orders from other proceedings under sections 69 and 91 of the *Evidence Act 2011* (ACT). The court also had to consider whether the primary judge had properly assessed the plaintiff's creditworthiness, particularly in light of a long history of medical complaints and serious non-accident related conditions. Furthermore, the court needed to review the apportionment of liability for contributory negligence under section 102(1) of the *Civil Law (Wrongs) Act 2002* (ACT), considering all relevant circumstances. Finally, the court was asked to consider whether the primary judge had adequately taken into account previous awards of damages in comparable cases when assessing the plaintiff's general damages.
The court reasoned that the primary judge had erred in admitting certain evidence relating to the plaintiff's creditworthiness, specifically pleadings and judgments from prior proceedings, as these were inadmissible under section 91 of the *Evidence Act 2011* (ACT). The court found that the primary judge had also failed to properly consider the plaintiff's extensive medical history and pre-existing conditions when assessing general damages, and had not adequately taken into account previous awards. Regarding contributory negligence, the court determined that the primary judge had not given sufficient weight to the plaintiff's conduct in the circumstances.
The court allowed the appeal in part, setting aside the primary judge's orders regarding general damages and contributory negligence. The matter was remitted to the primary judge for redetermination of these issues.