Vella v Cardona - [2015] VSCA 306

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0051

MARCELLE VELLA	Applicant
v
DAVID CARDONA	Respondent

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JUDGES:	BEACH and KYROU JJA, CAVANOUGH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 November 2015
DATE OF JUDGMENT:	17 November 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 306
JUDGMENT APPEALED FROM:	Vella v Cardona (County Court of Victoria, Judge Dyer, 22 May 2015)

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ACCIDENT COMPENSATION – Appeal – Application for leave to appeal – Jury trial – Transport accident – Damages – Pain and suffering damages – Whether jury's assessment of pain and suffering damages manifestly inadequate – Causation – Whether jury bound to find that accident was a cause of one of the injuries for which claim was made – Jury not bound to accept applicant's case on causation – Damages not manifestly inadequate – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R W McGarvie QC with Mr E Makowski	Arnold Thomas & Becker
For the Respondent	Mr S A O’Meara QC with Ms M Britbart	Solicitor to the Transport Accident Commission

BEACH JA

KYROU JA
CAVANOUGH AJA:

Introduction

On 8 January 2009, the applicant was injured in a transport accident. It occurred on the concrete apron outside the front gate of her mother’s house where the applicant also lived. The applicant was placing her eight-month old son in the rear seat of a stationary motor vehicle, when the respondent (the applicant’s partner, Mr David Cardona) unintentionally pressed the start button of the vehicle causing it to move forward two or three times in a ‘bunny hop’ motion. At the time the vehicle moved forward, the applicant had her right foot out of the car on the ground, and her left knee on the rear driver’s side seat. As a result of the vehicle moving forward, the applicant’s right foot was trapped under the wheel and was rolled over, and the upper portion of her right foot was dragged along the ground.

In May 2013, the applicant commenced a proceeding in the County Court against the respondent claiming damages for personal injury in respect of the injuries she sustained as a result of the accident. By his defence, the respondent admitted negligence and the matter then proceeded as an assessment of damages.

The applicant’s proceeding was heard by a judge and jury of six over eight days between 12 and 22 May 2015. At trial, the applicant claimed both pain and suffering damages and pecuniary loss damages.[1] There was no dispute at trial that the applicant had suffered a de-gloving injury to her right foot with associated tendon damage as a result of the accident. However, a central matter in dispute between the parties was whether the accident was a cause of a subsequently diagnosed hip injury that was treated by arthroscopic surgery in May 2013.
[1]See the definitions of ‘pain and suffering damages’ and ‘pecuniary loss damages’ in s 93(17) of the Transport Accident Act 1986.

On 22 May 2015,…

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 Vella v Cardona

Details

AGLC: Vella v Cardona [2015] VSCA 306
Case: [2015] VSCA 306
Decision Date: 17 November 2015

CaseChat Overview and Summary

Vella v Cardona involved the applicant, Vella, appealing against a decision of the District Court of Western Australia, which dismissed his application for leave to appeal against a judgment awarding damages for injuries sustained in a transport accident. The core dispute was the adequacy of the jury's assessment of pain and suffering damages and whether the jury was bound to find that the accident was a cause of one of the injuries claimed. The applicant argued that the jury's assessment of pain and suffering damages was manifestly inadequate and that the jury was bound to find that the accident caused one of his injuries.

The court was required to determine whether the jury's assessment of pain and suffering damages was manifestly inadequate and whether the jury was bound to find that the accident was a cause of one of the injuries claimed by the applicant. The applicant contended that the jury should have awarded more damages for pain and suffering and that the jury was bound to accept his case on causation. The court needed to examine the evidence and the jury's reasoning to ascertain if the jury's decision was manifestly unjust or if there was a legal error in the jury's consideration of causation.

The court found that the jury's assessment of pain and suffering damages was not manifestly inadequate, as the jury had considered the evidence and the appropriate factors in making their decision. The court also determined that the jury was not bound to accept the applicant's case on causation, as there was evidence that the applicant's injuries could have other causes, and the jury was entitled to reject the applicant's evidence on causation. The court concluded that the jury's decision was not manifestly unjust and that there was no legal error in the jury's consideration of causation. The application for leave to appeal was refused.

Orders