Cai v Zheng

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.