Chung v Anderson

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.