Insurance Update – December 2017

The Court of Appeal of Victoria rejects a plaintiff’s application for leave to appeal a jury’s small award of damages


Collins v Staminirovitch [2017] VSCA 342

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First instance

The plaintiff was injured in a motor vehicle collision on 30 January 2010. The defendant admitted liability. The plaintiff’s entitlement to damages went to trial. The plaintiff claimed the collision caused her a range of injuries including:

‘…a head injury, facial injury, reduced sense of smell, hearing loss, headaches, visual impairment of the right eye, dental injury, altered sensation in the face, scarring, and injuries to the right shoulder, spine, neck and right knee.  In addition, she claimed that she sustained psychological injuries, including a post-traumatic stress disorder (‘PTSD’), anxiety and depression, impaired memory and concentration, and an adjustment disorder.’

The trial lasted 3 weeks, 15 witnesses gave evidence, including numerous specialist health practitioners and a further 8 medical reports were read into evidence. After the trial, the jury awarded the plaintiff $100,000 for pain and suffering and $70,000 for pecuniary loss.

Court of Appeal

The plaintiff sought leave to appeal to the Court of Appeal on the basis that the jury’s award was manifestly inadequate.

The Court said that to succeed, the plaintiff must show that ‘…the jury, acting reasonably, could not, on the available evidence, have arrived at the conclusions that it did in relation to each head of damages claimed by the applicant.

The Court further said that:

‘…in determining that question, the appeal court is required to assume that the jury took the view of the evidence that was most favourable to the verdict.  As such, the threshold for an appellant to succeed, on such a ground, is a formidable one, particularly where (as in this case) the appellant is the party who carried the burden of proof on the issues raised on appeal.  In a case in which the jury verdict necessarily involved elements of assessment or evaluation, such as in a challenge to an award of general damages, the task confronting an appellant is particularly difficult.’

The Court further noted the importance of being mindful of the advantages the jury had in assessing the evidence compared to the Court which is limited to the transcript and documents.

The Court then undertook a detailed analysis of the evidence and concluded that it could not be maintained that the jury’s verdicts were not reasonably open to it on the evidence. Accordingly, the Court dismissed the plaintiff’s application for leave to appeal.

Implications

The decision shows the difficulty in attempting to predict the outcome of a jury award, particularly in highly contested factual circumstances. It could also support the view that juries are not quite as friendly to plaintiffs as some suggest. The decision further demonstrates the immense challenge in successfully appealing a jury’s decision.

If you have any queries or would like further information regarding this update, please contact:

Scott Shelly
Senior Associate
M: 0409 805 517
E: sshelly@pageseager.com.au

Mat Wilkins
Joint Managing Partner
M: 0419 106 417
E: mwilkins@pageseager.com.au

Published: 6 December 2017

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