Chau v Danh - [2009] NSWDC 287

CITATION: Chau v Danh & Anor [2009] NSWDC 287

HEARING DATE(S): 22 and 23 June 2009

JUDGMENT DATE:
10 November 2009

JURISDICTION: Civil

JUDGMENT OF: Levy SC DCJ

DECISION: 1. Verdict and judgment for the plaintiff in the sum of $582,579.
2. Defendant to pay the plaintiff’s costs.

CATCHWORDS: DAMAGES – personal injury – motor vehicle collision – assessment of multiple heads of damage - EVIDENCE – considerations where medical expert makes an allegation of exaggeration and fabrication of symptoms by plaintiff - PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005, Schedule 7 clause 5(c) – obligation of expert witness to give reasons for opinion to comply with requirements of expert witness code

LEGISLATION CITED: Motor Accidents Compensation Act 1999
Uniform Civil Procedure Rules 2005, Schedule 7 clause 5(c)

CASES CITED: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 29
Mason v Demasi [2009] NSWCA 227
State of NSW v Moss [2000] NSWCA 13
Stretenovic v Reed [2009] NSWCA 280
Strinich v Singh [2009] NSWCA 15

PARTIES: Thi Ngoc Chau (Plaintiff)
Khuong Danh (First Defendant)
Thi Loan Danh (Second Defendant)

FILE NUMBER(S): 580 of 2009

COUNSEL: Mr AJ Lidden SC with Mr M Daley (Plaintiff)
Mr P Nolan (Defendants)

SOLICITORS: Brydens (Plaintiff)
Sparke Helmore Lawyers (Defendants)

JUDGMENT

A. INTRODUCTION

Nature of case

1. The plaintiff has brought these proceedings claiming damages for serious injuries she received in a high impact motor vehicle collision that occurred on 23 March 2005 when, due to momentary driver inattention, the northbound vehicle being driven by the plaintiff’s husband, in which she was a passenger, left the roadway and collided with a tree on the western side of the Pacific Highway at Halfway Creek near Grafton, NSW. The plaintiff was aged 46 years when injured and was aged 50 years at the trial. The defendants admitted liability but contested the extent of the plaintiff’s entitlement to damages.

2. The parties adopted quite disparate positions concerning the appropriate assessment of damages. On behalf of the plaintiff it was submitted that an appropriate award of damages would be the sum of $1,231,997. On behalf of the defendant it was submitted that the appropriate award of damages would be the sum of $285,229.20. A total of five claimed heads of damage required assessment. These are listed below together with paragraph references:

Head of Damage

Paragraphs

(a) Non economic loss [75] - [76]

(b) Past domestic assistance [77] - [95]

(c) Future domestic assistance [96] - [99]

(d) Future treatment [100] - [101]

(e) Past out-of-pocket expenses [102]

Summary of findings

3. I have assessed the plaintiff’s entitlement to damages in the sum of $582,579.

B. DAMAGES ISSUES

The Plaintiff

Background

4. The plaintiff was born in Vietnam in 1959. She completed her education to the equivalent of 2nd year of primary school before assisting with the…

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.

Continue reading Chau v Danh

Details

AGLC: Chau v Danh [2009] NSWDC 287
Case: [2009] NSWDC 287
Decision Date: 10 November 2009

CaseChat Overview and Summary

The case of Chau v Danh involved a dispute over personal injury damages resulting from a motor vehicle collision. The plaintiff, Chau, claimed damages against the defendant, Danh, who was found liable for the accident. The matter was heard in the Supreme Court of New South Wales. The primary issue was the assessment of damages for multiple heads, including general damages, special damages, and loss of earning capacity.

The court had to address the challenge of evaluating the plaintiff's claims when a medical expert alleged that the plaintiff had exaggerated and fabricated certain symptoms. The court considered the obligations of the expert under the Expert Witness Code and Uniform Civil Procedure Rules 2005, particularly clause 5(c) which mandates that an expert witness must provide reasons for their opinion. The court found that despite the allegations of exaggeration and fabrication, the plaintiff's evidence was credible, and the expert's criticisms did not undermine the overall assessment of damages.

After weighing all the evidence and considering the nature and extent of the injuries, the court concluded that the plaintiff was entitled to general damages, special damages, and compensation for loss of earning capacity. The court determined the total amount of damages to be $582,579. The court also ordered that the defendant pay the plaintiff's costs of the proceedings.

Orders

Orders of the court

1. Verdict and judgment for the plaintiff in the sum of $582,579.

2. Defendant to pay the plaintiff’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Chau v Danh & Anor [2009] NSWDC 287
HEARING DATE(S):	22 and 23 June 2009
JUDGMENT DATE:	10 November 2009
JURISDICTION:	Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Verdict and judgment for the plaintiff in the sum of $582,579. 2. Defendant to pay the plaintiff’s costs.
CATCHWORDS:	DAMAGES – personal injury – motor vehicle collision – assessment of multiple heads of damage - EVIDENCE – considerations where medical expert makes an allegation of exaggeration and fabrication of symptoms by plaintiff - PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005, Schedule 7 clause 5(c) – obligation of expert witness to give reasons for opinion to comply with requirements of expert witness code
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 Uniform Civil Procedure Rules 2005, Schedule 7 clause 5(c)
CASES CITED:	Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 29 Mason v Demasi [2009] NSWCA 227 State of NSW v Moss [2000] NSWCA 13 Stretenovic v Reed [2009] NSWCA 280 Strinich v Singh [2009] NSWCA 15
PARTIES:	Thi Ngoc Chau (Plaintiff) Khuong Danh (First Defendant) Thi Loan Danh (Second Defendant)
FILE NUMBER(S):	580 of 2009
COUNSEL:	Mr AJ Lidden SC with Mr M Daley (Plaintiff) Mr P Nolan (Defendants)
SOLICITORS:	Brydens (Plaintiff) Sparke Helmore Lawyers (Defendants)

*Head of Damage*	*Paragraphs*
(a) Non economic loss	[75] - [76]
(b) Past domestic assistance	[77] - [95]
(c) Future domestic assistance	[96] - [99]
(d) Future treatment	[100] - [101]
(e) Past out-of-pocket expenses	[102]