Wilson v Collingwood Store Pty Ltd - [2014] VSCA 20

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0089

NATASHA WILSON	Appellant
	v
COLLINGWOOD STORE PTY LTD	Respondent

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JUDGES	OSBORN and BEACH JJA and McMILLAN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 February 2014
DATE OF JUDGMENT	25 February 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 20
JUDGMENT APPEALED FROM	Wilson v Collingwood Store Pty Ltd (Unreported, County Court of Victoria, Judge O'Neill, 20 June 2013 (date of verdict))

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ACCIDENT COMPENSATION – Jury trial Assessment of damages – Pain and suffering damages only – Relevant pre-existing condition – Pre-existing risk of further injury – Vicissitudes – Jury's assessment of damages not manifestly inadequate.

LEGAL PRACTITIONERS – Conduct of counsel – Final address – Inappropriate personal observations – Inappropriate references to awards of damages in other cases.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A D Clements SC with Mr J J Fitzpatrick	Slater & Gordon
For the Respondent	Mr J P Gorton SC with Mr R Kumar	Wisewould Mahony

OSBORN JA
BEACH JA
McMILLAN AJA:

Introduction

On 3 July 2002 the appellant, Ms Wilson, was working as a sales assistant at Collingwood Cash Converters. As a co-worker unravelled power cords attached to a number of television sets displayed upon a set of shelves, the shelving collapsed and one of the television sets fell towards the appellant. She instinctively tried to catch it and in so doing twisted and wrenched her right knee.

Ms Wilson suffered a dislocation of the right patella and chondral (cartilaginous) damage to the anterior surface of the knee below.

Her evidence was that when she wrenched her knee she felt excruciating pain and that she continued to feel such pain thereafter.

Ms Wilson consulted Dr Duong, her general practitioner, who had treated her over the previous 10 years or so. She was given medication and had some physiotherapy.

Dr Duong referred Ms Wilson to Mr Howells, an orthopaedic surgeon, whom she first saw in August 2002. On 3 February 2003 Mr Howells performed an arthroscopy of the right knee at the Mercy Hospital. She then received patello femoral stabilisation surgery on 13 October 2003. This did not improve her pain.

On 20 July 2004 Ms Wilson underwent a third operation to remove the staples in her knee which she said were causing more pain.

In 2012 (some 10 years after the incident in which she was injured) Ms Wilson issued proceedings in the County Court claiming damages for personal injury.

When the matter came on for trial before his Honour Judge O’Neill and a jury negligence was admitted and it proceeded as an assessment for damages. The main issues at trial were:

(a) the extent of the injury suffered by Ms Wilson in the incident on 3 July 2002;

(b) the relevance of the condition of Ms Wilson’s knee prior to the injury to the assessment of damages; and

(c) the sum in which damages for pain and suffering ought to be assessed.

On 20 June 2013 the jury assessed damages…

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 20
Decision Date: 25 February 2014

CaseChat Overview and Summary

The case of Wilson v Collingwood Store Pty Ltd involved a dispute over the assessment of damages for pain and suffering following an accident. The plaintiff, Wilson, sought compensation from Collingwood Store Pty Ltd after sustaining injuries in an incident that occurred on the defendant’s premises. The case was heard in the Supreme Court of Victoria, which was tasked with evaluating the appropriate level of damages given Wilson's pre-existing medical condition and the nature of his injuries.

The primary legal issues that the court needed to address were whether the jury’s assessment of damages for pain and suffering was manifestly inadequate and whether any inappropriate conduct by counsel during the final address impacted the trial’s fairness. The court also needed to consider the implications of Wilson's pre-existing condition and the risk of further injury on the damages awarded. These issues required careful scrutiny to ensure that the compensation awarded was fair and commensurate with the injuries sustained, while also taking into account the pre-existing condition and the broader context of the incident.

The court concluded that the jury's assessment of damages was not manifestly inadequate, despite Wilson's pre-existing condition and the inherent risks associated with it. The court acknowledged the complexities of evaluating pain and suffering in such cases but found that the jury had considered all relevant factors. Additionally, the court found that the conduct of counsel during the final address, including inappropriate personal observations and references to other cases, did not significantly prejudice the trial's outcome. The court determined that the final award of damages was appropriate and that the trial had been conducted fairly.

The final orders of the court confirmed the jury's assessment of damages for pain and suffering, while also noting the importance of considering the pre-existing condition in the context of the incident. The court's decision underscored the need for careful evaluation of all relevant factors in assessing damages and highlighted the necessity for counsel to adhere to appropriate standards of conduct during legal proceedings.

Orders