Chung v Anderson

Case [2004] NSWCA 321


CITATION: Chung v Anderson [2004] NSWCA 321
HEARING DATE(S): 11 February 2004
JUDGMENT DATE:
15 September 2004
JUDGMENT OF: Santow JA at 1; McColl JA at 2; Cripps AJA at 144
DECISION: (1) Appeal dismissed. (2) Appellant to pay the respondent's costs of the appeal.
CATCHWORDS: DAMAGES - residual earning capacity - vicissitudes - "usual" deduction of 15% - challenge by appellant to deduction of 25% when no argument advanced at trial as to why "usual" figure should be departed from - CAUSATION - whether proper reasons given - EXPERT EVIDENCE - challenge to expert's report admitted without objection and not contradicted - APPEALS - arguments not advanced at trial sought to be advanced on appeal - where no exceptional circumstances. (D)
LEGISLATION CITED: N/A
CASES CITED: Bhambra v Roet [2003] NSWCA 393
Brazel v Nicholls [2003] NSWCA 387
Buller v Black [2003] NSWCA 45; (2003) 56 NSWLR 425
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
Coulton v Holcombe (1986) 162 CLR 1
Diamond v Simpson (No 1) [2003] NSWCA 67; (2003) Aust Torts Reports 81-695
General Motors-Holdens Pty Limited v Moularas (1964) 111 CLR 234
Harper v Bangalow Motors Pty Ltd (NSW Court of Appeal, unreported, 24 July 1990)
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
Larson v Commissioner of Police [2004] NSWCA 126
Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Metwally v University of Wollongong (No 2) (1985) 59 ALJR 481
Moran v McMahon (1985) 3 NSWLR 700
Purkess v Crittenden (1965) 114 CLR 164
Ram v Oib [2003] NSWCA 223; (2003) 39 MVR 72
Richey-Lowe v Australasian Conference Association Limited t/as Sydney Adventist Hospital [2001] NSWCA 447
Roads and Traffic Authority of NSW v Palmer [2003] NSWCA 58; (2003) 38 MVR 82; (2003) Aust Torts Reports 81-693
Shead v Hooley [2000] NSWCA 362
Smith v Advanced Electrics Pty Limited [2003] QCA 432
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 319
Vasailes v Robertson [2002] NSWCA 177
Water Board v Moustakas (1988) 180 CLR 491
Whisprun Pty Limited v Dixon [2003] HCA 48; (2003) 77 ALJR 1598
Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485

PARTIES :

Dr Wui K Chung (Appellant)
John Gerard Anderson (Respondent)
FILE NUMBER(S): CA 40260/03
COUNSEL: A J Sullivan QC (Appellant)
P W Neil SC/ S A Benson (Respondent)
SOLICITORS: Sparke Helmore (Appellant)
Bateman Battersby (Respondent)
LOWER COURTJURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 223/01
LOWER COURT
JUDICIAL OFFICER :
Delaney DCJ


                          CA 40260/03
                          DC 223/01

                          SANTOW JA
                          McCOLL JA
                          CRIPPS AJA

                          Wednesday, 15 September 2004
Dr Wui K CHUNG v John Gerard ANDERSON


FACTS

The respondent was referred to the appellant for orthopaedic opinion after he experienced pain in the joint of his right big…

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Details
AGLC
Chung v Anderson [2004] NSWCA 321
Case
[2004] NSWCA 321
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute over damages awarded to the respondent, Mr Anderson, who had suffered injuries. The appellant, Ms Chung, challenged the quantum of damages, specifically the deduction made for the residual earning capacity of the respondent. The appeal was heard by Santow and McColl JJA and Cripps AJA in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the trial judge erred in departing from the "usual" 15% deduction for residual earning capacity and applying a 25% deduction, and whether the reasons provided for this departure were adequate. The appellant also challenged the admission of expert evidence and the court's findings on causation, although these arguments had not been raised at the trial.

The Court of Appeal found no error in the trial judge's assessment of damages. It held that the trial judge was entitled to depart from the usual 15% deduction for residual earning capacity, even though no specific argument had been advanced at trial for such a departure. The court reasoned that the trial judge had provided sufficient reasons for the 25% deduction, considering the evidence before them. Furthermore, the court declined to entertain arguments regarding expert evidence and causation that were not raised at trial, stating that exceptional circumstances were required to permit such new arguments on appeal.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

(1) Appeal dismissed. (2) Appellant to pay the respondent's costs of the appeal.

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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