Wayne Kozak v Kylie Tricia Kaufman

[2014] HCASL 94

WAYNE KOZAK

v

KYLIE TRICIA KAUFMAN

[2014] HCASL 94
C16/2013

1. In June 2007 the respondent was injured when a vehicle negligently driven by the applicant collided with the rear of her vehicle.  The respondent commenced proceedings in the Supreme Court of the Australian Capital Territory claiming damages for her injuries. 

2. It was the respondent's case that she had sustained injury to her lumbosacral spine and that pre-existing conditions, including injury to her sacroiliac joint, had been aggravated as the result of the accident.  None of the authors of the medical reports tendered at the trial were required for cross-examination. 

3. The trial judge (Sidis AJ) did not accept that the respondent suffered any ongoing symptoms in her lumbosacral spine as a consequence of the accident.  She considered the respondent had suffered a short-term exacerbation of a pre-existing low back condition.  Her Honour observed that "[t]here was no doubt that the [respondent's] claim bore the hallmarks of deceit and exaggeration[1].  She assessed damages in the amount of $40,600.00. 

   [1]Kaufman v Kozak [2012] ACTSC 78 at [87].

4. The respondent appealed to the Court of Appeal of the Supreme Court of the Australian Capital Territory (Penfold, Burns and Cowdroy JJ).  The Court of Appeal identified a number of errors in Sidis AJ's assessment of the medical evidence[2].  The Court of Appeal was satisfied that the respondent suffered the injuries that she identified by reason of the accident[3].  The Court of Appeal remitted the proceeding to the Master for assessment of damages in accordance with its reasons[4].

   [2]Kaufman v Kozak [2013] ACTCA 30 at [132].

   [3]Kaufman v Kozak [2013] ACTCA 30 at [133].

   [4]Kaufman v Kozak [2013] ACTCA 30 at [134].

5. The applicant applies for special leave to appeal.  He submits that the Court of Appeal failed to apply the principles stated in Fox v Percy[5] respecting appellate review of findings that are dependent upon assessment of credibility.  He identifies as the special leave question whether an appellate court should, as a matter of principle, order a new trial rather than a remitter subject to the appellate court's factual determinations.

   [5](2003) 214 CLR 118; [2003] HCA 22.

6. Sidis AJ did not make particular credibility findings concerning the respondent's evidence.  Her Honour's conclusion that the claim "bore the hallmarks of deceit and exaggeration" was based on the respondent's claim that her back pain was the result of the accident "in the face of clear medical evidence to the contrary"[6].  The Court of Appeal reviewing the same body of evidence found that the respondent's case had been supported by strong medical opinion.  Given that liability was admitted, and the medical evidence on causation and extent of injury was documentary, the application does not present a suitable vehicle in which to consider the suggested special leave question. 

   [6]Kaufman v Kozak [2012] ACTSC 78 at [87].

7. The application is dismissed.

8. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs. 

V.M. Bell
13 May 2014 S.J. Gageler