Appeal Outcome: Appeal allowed by the High Court, 9 December 2009 [2009] HCA 52
New South Wales
Court of Appeal
CITATION: Cai v Zheng [2009] NSWCA 13 HEARING DATE(S): 04/02/2009
JUDGMENT DATE:
25 February 2009JUDGMENT OF: Giles JA at 1; Basten JA at 4; Hoeben J at 5 DECISION: The appeal is allowed.
The judgment in favour of the respondent in the amount of $300,681 is set side and in substitution thereof judgment is entered for the respondent in the sum of $17,447.91.
The appellant is to pay the respondent’s costs of the trial before Garling DCJ calculated as if judgment had been entered in favour of the respondent in the amount of $173,243.
The respondent is to pay fifty percent of the appellant’s costs of the appeal.
The respondent’s application for leave to rely upon her cross-appeal is refused with costs.CATCHWORDS: APPEAL – applicable law – change in general law after trial – point not taken at trial – subsequent change in statute law – Motor Accidents Compensation Act 1999 (NSW), s 128(3) - COSTS – issue not raised at trial - DAMAGES – assessment of gratuitous care – application of Motor Accidents Compensation Act 1999 (NSW), s 128(3) - DAMAGES – indemnity – compensation payment to be brought into account – Workers Compensation Act 1987 (NSW), s 151Z(1)(e) - TORTS – motor vehicle accident – assessment of damages – economic loss – whether payments received from church after injury should be taken into account when calculating damages – Motor Accidents Compensation Act 1999 (NSW), s 128(3) as amended by Civil Liability Legislation Amendment Act 2008 (NSW) –"proceedings determined before that commencement" - WORDS AND PHRASES – “determined” – “proceedings determined” before commencement of amendment – completed trial – error on basis other than non-application of amended legislation LEGISLATION CITED: Civil Liability Legislation Amendment Act 2008
Judiciary Act (1903) (Cth)
Motor Accident Compensation Act 1999
Supreme Court Act 1970 (NSW)
Workers Compensation Act 1987CATEGORY: Principal judgment CASES CITED: Attorney-General for NSW v Perpetual Trustee Co Ltd (1952) 85 CLR 237
Calin v The Greater Union Organisation Pty Limited [1991] HCA 23; (1991) 173 CLR 33 at 39
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Eggins v Brooms Head Bowling and Recreational Club Ltd (1986) 5 NSWLR 521 at 524
Geaghan v D’Aubert [2002] NSWCA 260; (2002) 36 MVR 542
Graham v Baker (1961) 106 CLR 340
Harrison v Melhem [2008] NSWCA 67
I & J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSWCCR 486
Malec v JC Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638
Marinko v Masri [1999] NSWCA 364
Mercantile Mutual Insurance (Aust) Ltd v Moulding & Anor (No 3) [1997] NSWCA 201
Morawski v State Rail Authority (1988) 14 NSWLR 374
Norris v Blake (No 2) (1997) 41 NSWLR 49
NSW Insurance Ministerial Corporation v Willis (1995) 35 NSWLR 668 at 677-78
Proust v Blake (1989) 17 NSWLR 267
Redding v Lee…
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- AGLC
- Cai v Zheng [2009] NSWCA 13
- Case
- [2009] NSWCA 13
- Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute arising from a motor vehicle accident. The appellant, Cai, sought to appeal a decision of Garling DCJ in favour of the respondent, Zheng, who had been awarded damages. A key issue on appeal related to the application of statutory provisions concerning the assessment of damages, particularly in light of legislative amendments that occurred after the trial.
The court was required to determine whether a subsequent amendment to section 128(3) of the *Motor Accidents Compensation Act 1999* (NSW) applied to proceedings that had been determined before the amendment's commencement. This involved interpreting the meaning of "proceedings determined" in the context of the *Civil Liability Legislation Amendment Act 2008* (NSW). The court also had to consider the assessment of damages for gratuitous care and whether payments received by the respondent from a church after her injury should be brought into account when calculating economic loss, in light of section 151Z(1)(e) of the *Workers Compensation Act 1987* (NSW).
The court held that the amendment to section 128(3) of the *Motor Accidents Compensation Act 1999* (NSW) did not apply to proceedings that had already been determined before its commencement. The trial judge's error was not based on the non-application of the amended legislation, but rather on an incorrect application of the law as it stood at the time. The court found that the trial judge had erred in failing to bring into account certain payments received by the respondent, which reduced the quantum of damages recoverable.
Consequently, the appeal was allowed. The original judgment in favour of the respondent was set aside, and judgment was entered for a significantly reduced sum. The court made specific orders regarding the costs of both the trial and the appeal, reflecting the outcome of the litigation.
The court was required to determine whether a subsequent amendment to section 128(3) of the *Motor Accidents Compensation Act 1999* (NSW) applied to proceedings that had been determined before the amendment's commencement. This involved interpreting the meaning of "proceedings determined" in the context of the *Civil Liability Legislation Amendment Act 2008* (NSW). The court also had to consider the assessment of damages for gratuitous care and whether payments received by the respondent from a church after her injury should be brought into account when calculating economic loss, in light of section 151Z(1)(e) of the *Workers Compensation Act 1987* (NSW).
The court held that the amendment to section 128(3) of the *Motor Accidents Compensation Act 1999* (NSW) did not apply to proceedings that had already been determined before its commencement. The trial judge's error was not based on the non-application of the amended legislation, but rather on an incorrect application of the law as it stood at the time. The court found that the trial judge had erred in failing to bring into account certain payments received by the respondent, which reduced the quantum of damages recoverable.
Consequently, the appeal was allowed. The original judgment in favour of the respondent was set aside, and judgment was entered for a significantly reduced sum. The court made specific orders regarding the costs of both the trial and the appeal, reflecting the outcome of the litigation.
Orders
Orders of the court
The appeal is allowed. The judgment in favour of the respondent in the amount of $300,681 is set side and in substitution thereof judgment is entered for the respondent in the sum of $17,447.91. The appellant is to pay the respondent's costs of the trial before Garling DCJ calculated as if judgment had been entered in favour of the respondent in the amount of $173,243. The respondent is to pay fifty percent of the appellant's costs of the appeal. The respondent's application for leave to rely upon her cross-appeal is refused with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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