Foong v Ghaly; Foong v McLellan

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Foong v Ghaly; Foong v McLellan [2018] NSWCA 280
Hearing dates:	28 September 2018
Decision date:	23 November 2018
Before:	Beazley ACJ at [1]; McColl JA at [2]; Macfarlan JA at [3]
Decision:	Appeals and applications for leave to appeal dismissed with costs.
Catchwords:	TORTS – self-represented appellant alleged she was injured in two motor vehicle accidents – liability admitted in District Court – appellant awarded $1,250 damages in each action – no error demonstrated on appeal
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), s 141B Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), r 31.23, Sch 7
Cases Cited:	Akins v National Australia Bank (1994) 34 NSWLR 155 Calderbank v Calderbank [1975] 3 WLR 586 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Category:	Principal judgment
Parties:	Proceedings 2017/364452; 2018/110500; 2018/26922 Yena Foong (Appellant) Osama Wadea Ghaly (Respondent)   Proceedings 2017/364445; 2018/110490; 2018/26860 Yena Foong (Appellant) Diane Frances McLellan (Respondent)
Representation:	Counsel: Self-represented Appellant I D Roberts SC (Respondents)   Solicitors: Self-represented Appellant Moray & Agnew (Respondents)
File Number(s):	CA 2017/364452; 2018/110500; 2018/26922; 2017/364445; 2018/110490; 2018/26860
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Citation: [2017] NSWDC 303; [2017] NSWDC 343 Date of Decision: 3 November 2017; 12 December 2017 Before: Gibson DCJ File Number(s): 2014/115934; 2014/200147

Judgment

1. BEAZLEY P: I have had the advantage of reading in draft the reasons of Macfarlan JA. I agree with his Honour’s reasons and proposed orders.

2. McCOLL JA: I agree with Macfarlan JA’s reasons and the orders his Honour proposes.

3. MACFARLAN JA: On 2 March 2011 Ms Yena Foong, the appellant, was involved in a motor vehicle accident caused by the fault of Ms Diane McLellan, a respondent. On 26 September 2011 Ms Foong was involved in a further motor vehicle accident, on this occasion caused by the fault of the respondent Mr Osama Ghaly.

4. Ms Foong claimed damages for negligence against the two respondents in separate actions in the District Court. Ms Foong alleged that in each accident she had suffered injuries to her head, neck, back, both arms, both shoulders, both knees and had suffered psychological injuries. She also alleged that she had sustained substantial economic and other loss.

5. After the respondents admitted liability, Ms Foong’s claims came before Gibson DCJ for assessment. Of the damages that Ms Foong claimed against each respondent (in excess of $20 million), her Honour awarded Ms Foong $1,250 in each action ([2017] NSWDC 303). Her Honour rejected Ms Foong’s evidence that she had been seriously injured in the accidents and found that she had only suffered mild soft tissue injuries from which she recovered within weeks of the two motor vehicle accidents occurring.

6. Ms Foong appeals to this Court against the judgment in each action and, lest it be considered that there is less than $100,000 at issue in each appeal, she also seeks leave to…