Dang v Chea - [2013] NSWCA 80

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dang v Chea [2013] NSWCA 80
Hearing dates: 13/02/2013
Decision date: 17 April 2013
Before: McColl JA at [1]
Preston CJ of LEC at [2]
Garling J at [3]
Decision:
(1) Appeal upheld.
(2) Judgment of Balla DCJ set aside.
(3) Order that the parties file agreed short minutes of order within 7 days of the judgment to reflect these reasons for judgment. If the parties are unable to agree on the orders to be made, then each party is to file their proposed orders together with a written submission in support of the orders for which they contend within 14 days of the judgment.
(4) Respondent to pay the appellant's costs of the appeal.
(5) Order that the respondent, if otherwise entitled, be granted a certificate under the Suitors' Fund Act 1951.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORTS - negligence - motor vehicle accident - liability admitted. DAMAGES - whether the award for future accommodation and care was reasonable - the proportionate relationship between the health benefits obtained and future costs incurred - purpose of award of damages to fulfil reasonable, not ideal, requirements - no issue of general principle.
Legislation Cited: Suitors Fund Act 1995
Cases Cited: Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649 Chulcough v Holley (1968) 41 ALJR 336 Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563
McNeilly v Imbree [2007] NSWCA 156; (2007) 47 MVR 536
Category: Principal judgment
Parties: Thi Hue Chi Dang (Appellant)
Siv Chea by tutor Chea Meng Ngo (Respondent)
Representation: Counsel:
K P Rewell SC / A J Stone (Appellant)
S Norton SC / E E Welsh (Respondent)
Solicitors:
McCourts Solicitors (Appellant)
Brydens Law Office LP (Respondent)

File Number(s): 2012/172578
Decision under appeal

Citation:

Siv Chea by her tutor Chea Meng Ngo v Thi Hue Chi Dang

Date of Decision:

2012-05-04 00:00:00

Before:

Balla DCJ

File Number(s):

2011/62695

Judgment

McCOLL JA: I agree with Garling J's reasons and the orders his Honour proposes.

PRESTON CJ of LEC: I agree with Garling J.

GARLING J: The appellant, Thi Hui Chi Dang was, on 7 September 2007, the negligent driver of a motor vehicle which struck the respondent, Siv Chea, who was then a pedestrian in a car park on Hughes Street, Cabramatta, NSW. Mrs Chea was severely injured.

On 4 May 2012 in the District Court of NSW, Balla DCJ delivered reasons for judgment in the proceedings for damages commenced by Mrs Chea against Ms Dang. After the parties reached agreement on…

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 Dang v Chea

Details

AGLC: Dang v Chea [2013] NSWCA 80
Case: [2013] NSWCA 80
Decision Date: 17 April 2013

CaseChat Overview and Summary

In *Dang v Chea*, the Court of Appeal of New South Wales considered an appeal concerning the quantum of damages awarded to the respondent for future accommodation and care following a motor vehicle accident, liability for which had been admitted.

The central legal issue before the Court was whether the award for future accommodation and care was reasonable, specifically in relation to the proportionate relationship between the health benefits obtained and the future costs incurred. The Court was required to determine if the purpose of the award was to fulfil reasonable, rather than ideal, requirements.

The Court reasoned that an award of damages for future accommodation and care should reflect reasonable requirements, not an ideal scenario. It found that the award made by the primary judge was not proportionate to the health benefits the respondent would obtain, and therefore was not reasonable. The Court upheld the appeal and set aside the judgment of the District Court.

The Court ordered that the parties file agreed short minutes of order within 7 days, or proposed orders and submissions within 14 days if agreement could not be reached. The respondent was ordered to pay the appellant's costs of the appeal and was granted a certificate under the *Suitors' Fund Act 1951*, if otherwise entitled.

Orders

Orders of the court

(1) Appeal upheld.

(2) Judgment of Balla DCJ set aside.

(3) Order that the parties file agreed short minutes of order within 7 days of the judgment to reflect these reasons for judgment. If the parties are unable to agree on the orders to be made, then each party is to file their proposed orders together with a written submission in support of the orders for which they contend within 14 days of the judgment.

(4) Respondent to pay the appellant's costs of the appeal.

(5) Order that the respondent, if otherwise entitled, be granted a certificate under the Suitors' Fund Act 1951.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PRESTON CJ

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Ratio Decidendi

Legal Principle Established

Established by: PRESTON CJ

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Medium Neutral Citation:	Dang v Chea [2013] NSWCA 80
Hearing dates:	13/02/2013
Decision date:	17 April 2013
Before:	McColl JA at [1] Preston CJ of LEC at [2] Garling J at [3]
Decision:	(1) Appeal upheld. (2) Judgment of Balla DCJ set aside. (3) Order that the parties file agreed short minutes of order within 7 days of the judgment to reflect these reasons for judgment. If the parties are unable to agree on the orders to be made, then each party is to file their proposed orders together with a written submission in support of the orders for which they contend within 14 days of the judgment. (4) Respondent to pay the appellant's costs of the appeal. (5) Order that the respondent, if otherwise entitled, be granted a certificate under the Suitors' Fund Act 1951. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - negligence - motor vehicle accident - liability admitted. DAMAGES - whether the award for future accommodation and care was reasonable - the proportionate relationship between the health benefits obtained and future costs incurred - purpose of award of damages to fulfil reasonable, not ideal, requirements - no issue of general principle.
Legislation Cited:	Suitors Fund Act 1995
Cases Cited:	Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649 Chulcough v Holley (1968) 41 ALJR 336 Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563 McNeilly v Imbree [2007] NSWCA 156; (2007) 47 MVR 536
Category:	Principal judgment
Parties:	Thi Hue Chi Dang (Appellant) Siv Chea by tutor Chea Meng Ngo (Respondent)
Representation:	Counsel: K P Rewell SC / A J Stone (Appellant) S Norton SC / E E Welsh (Respondent) Solicitors: McCourts Solicitors (Appellant) Brydens Law Office LP (Respondent)
File Number(s):	2012/172578
Decision under appeal	Citation: Siv Chea by her tutor Chea Meng Ngo v Thi Hue Chi Dang Date of Decision: 2012-05-04 00:00:00 Before: Balla DCJ File Number(s): 2011/62695