Kwong v Abdulwahab

Case [2016] NSWCA 107

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Kwong v Abdulwahab [2016] NSWCA 107
Hearing dates:21 April 2016
Decision date: 13 May 2016
Before: Basten JA at [1], Simpson JA at [20], Barrett AJA at [98]
Decision:

(1)  The time in which to appeal is extended to 22 September 2015;

 

(2)  Appeal allowed in part;

 

(3)  Set aside the judgment for $534,695;

 (4)  In lieu thereof enter judgment for the plaintiff for $524,695.
Catchwords:

APPEAL – civil – whether primary judge erred in findings of fact – challenge to findings of fact without foundation – findings of fact supported by evidence – no material errors made

 

DAMAGES – negligent medical treatment – injury to plaintiff’s right hand – liability admitted – past and future economic loss – diminution in earning capacity – whether attributable to hand injury or supervening back condition – onus of proof – challenges to findings of fact – finding that plaintiff manufactured back condition for ulterior purpose – unsubstantiated – failure of primary judge to undertake evidentiary analysis – power of Court of Appeal to make findings of fact – Supreme Court Act 1970 (NSW), 75A – loss of earning capacity attributable to hand injury

 

APPEAL – civil – adequacy of reasons – whether primary judge failed to provide adequate reasons for quantification of economic loss – no submission that award was excessive or unsupported by evidence – Court of Appeal has powers and duties of court below – Supreme Court Act 1970 (NSW), s 75A(6) – inference drawn that earning capacity could be no more than $500 per week – absence of reasons not fatal to award

DAMAGES – claim for damages for future medical expenses – unsupported by evidence – primary judge erred in making award – degree of probability of future medical treatment “so low as to be regarded as speculative” – Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 – appeal allowed as to award of damages for future medical expenses only
Legislation Cited: Civil Liability Act 2002 (NSW)
Suitor’s Fund Act 1951 (NSW)
Supreme Court Act 1970 (NSW), s 75A
Uniform Civil Procedure Rules 2005 (NSW), r 31.10(2)
Cases Cited: Concrite Pty Ltd v Rogerson [2002] NSWCA 310
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Purkess v Crittenden [1965] HCA 34; 114 CLR 164
Qantas Airways Ltd v Lisica [2007] NSWCA 371
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Watts v Rake [1960] HCA 58; 108 CLR 158
Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85; 53 MVR 187
Category:Principal judgment
Parties: Dr Christopher Kwong (Appellant)
Mohamad Abdulwahab (Respondent)
Representation:

Counsel:
J Sandford (Appellant)
R Sheldon SC/I Ryan (Respondent)

  Solicitors:
TressCox Lawyers (Appellant)
Brydens Lawyers Pty Ltd (Respondent)
File Number(s):2015/150408
 Decision under appeal 
Court or tribunal:

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Details
AGLC
Kwong v Abdulwahab [2016] NSWCA 107
Case
[2016] NSWCA 107
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between Mr. Kwong (the plaintiff) and Mr. Abdulwahab (the defendant) regarding damages awarded for negligent medical treatment. The plaintiff had suffered an injury to his right hand, and liability was admitted. The appeal was heard by the Court of Appeal of New South Wales, comprising Basten and Simpson JJA and Barrett AJA.

The primary legal issues before the Court of Appeal were whether the primary judge had erred in their findings of fact, particularly concerning the plaintiff's diminished earning capacity and the attribution of that loss to the hand injury rather than a supervening back condition. The court also considered whether the primary judge had provided adequate reasons for the quantification of economic loss and whether the award for future medical expenses was supported by sufficient evidence.

The Court of Appeal found that the primary judge's findings of fact were supported by the evidence presented, and there were no material errors in those findings. The court rejected the argument that the plaintiff had manufactured a back condition for an ulterior purpose, finding this unsubstantiated. Applying the principles from *Malec v JC Hutton Pty Ltd*, the court determined that the primary judge had erred in awarding damages for future medical expenses, as the degree of probability of such treatment was too low to be regarded as speculative. However, the court upheld the primary judge's finding that the plaintiff's loss of earning capacity was attributable to the hand injury. The court also noted that while the primary judge's reasons for quantifying economic loss were not detailed, this was not fatal to the award, especially as no submission was made that the award was excessive or unsupported by evidence.

The Court of Appeal allowed the appeal in part. The original judgment of $534,695 was set aside, and in lieu thereof, judgment was entered for the plaintiff for $524,695. The time for filing the appeal was also extended to 22 September 2015.

Orders

Orders of the court

(1) The time in which to appeal is extended to 22 September 2015;

(2) Appeal allowed in part;

(3) Set aside the judgment for $534,695;

(4) In lieu thereof enter judgment for the plaintiff for $524,695.

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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