Kwong v Abdulwahab

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.