Willett v State of Victoria

[2011] VSC 567

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2009 9928

KAREN ADEN WILLETT	Plaintiff
V
STATE OF VICTORIA	Defendant

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 September 2011
DATE OF RULING:	7 November 2011
CASE MAY BE CITED AS:	Willett v State of Victoria
MEDIUM NEUTRAL CITATION:	[2011] VSC 567

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ACCIDENT COMPENSATION – Personal injury – Jury verdict- Judgment given for incorrect sum on plaintiff’s application – Correct amount subsequently agreed – Date of judgment to be date of notification to Court of agreed amount - Vitous v Touhill [1964] VR 624– Rule 59.02 (1) Supreme Court (General Civil Procedure) Rules 2005.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Waugh	Clark Toop & Taylor
For the Defendant	Ms A Ryan	Wisewould Mahoney

HER HONOUR:

1. On 7 July 2011, a jury returned a verdict in favour of the plaintiff, Ms Willett in her negligence action against the State of Victoria.  Senior counsel for Ms Willett sought judgment in the sum of $54,000 in accordance with that verdict.  Judgment was given.  The jury had awarded Ms Willett $108,000 damages and found her guilty of contributory negligence to the extent of 50 per cent. 

1. On 8 July 2011, the Court was notified that the parties agreed that $54,000 was not the correct amount for which judgment should be entered.  Subsequently, on 14 September 2011, the Court received a document headed ‘Consent Orders’ dated 8 July 2011 signed by the parties’ solicitors seeking judgment in the sum of $48,075.

1. The solicitors for Ms Willett have requested that the date of the judgment entered be 14 September 2011 because that was the date upon which agreement had been reached as to the proper amount of the judgment.  Mr Dominic Arvia has sworn an affidavit setting out the chronology of events.  I am satisfied that agreement was not reached as to the correct sum until that date. 

1. The plaintiff has now applied for an order under r 59.02(1) of the Supreme Court (General Civil Procedure) Rules 2005 that the judgment entered should bear that date. 

1. In Vitous v Tuohill[1] the Full Court held that an order under r 59.02(1) can be made prior to the entry of judgment. After that date, an order under the ‘slip rule’ in Rule 36.07 is normally the appropriate means to amend a judgment.[2]  As it was common ground by 8 July 2011 that judgment should not be entered in the sum of $54,000, but rather in an amount to be agreed, it appears to be in the interest of justice that the date for which judgment is entered be the date upon which the amount was agreed as this will preserve the plaintiff’s entitlement to appeal.

   [1][1964] VR 624.

   [2][1964] VR 624, 631 (Herring CJ, Smith and Adam JJ).

1. Although the defendant initially resisted the plaintiff’s argument on the basis that she should have been diligent in exercising her right to appeal despite the error in the agreed amount of the judgment, its solicitors have informed the Court that it no longer opposes judgment being entered on the date agreement as to the correct amount was reached. 

1. In all the circumstances, I will make the order sought by the plaintiff.  The date of the judgment entered will be 14 September 2011.