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Lu v Heinrich

Lu v Heinrich

Case [2014] NSWCA 349 14 October 2014

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lu v Heinrich [2014] NSWCA 349
Hearing dates: 4 April 2014
Decision date: 14 October 2014
Before: McColl JA at [1], Basten JA at [93], Sackville AJA at [135]
Decision:
(1) Appeal allowed.
(2) Set aside the orders made in the District Court on 12 November 2012.
(3) Remit the matter to the District Court for a new trial limited to damages.
(4) Cost of the first trial to be in the discretion of the judge presiding at the second trial.
(5) Respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified.
[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 - damages - motor vehicle accident - plaintiff injured when stationary motor vehicle he was driving struck from behind by respondent's vehicle - liability admitted - no contributory negligence - extent of appellant's physical and psychiatric injuries in dispute - conflicting medical reports - primary judge rejected plaintiff's contentions as to extent of physical injuries and existence of causal connection between any psychiatric condition and - whether primary judge's reasons engaged with plaintiff's medical case - whether process of fact finding miscarried

APPEAL - new trial - whether substantial miscarriage of justice
LEGAL PRACTITIONERS - conflicting medical reports - obligation of counsel to address trial judge as to how conflicts should be resolved
Legislation Cited: Civil Procedure Act 2005 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Suitors' Fund Act 1951 (NSW)
Supreme Court Rules 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Workers Compensation Act 1987 (NSW)
Cases Cited: CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Dixon v Whisprun Pty Ltd [2001] NSWCA 344
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186
Keith v Gal [2013] NSWCA 339
Mason v Demasi [2009] NSWCA 227
Mastronardi v New South Wales [2007] NSWCA 54
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
P & M Quality Smallgoods Pty Limited v Leap Seng [2013] NSWCA 167
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
PT v Shorey [2001] NSWCA 127
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
Sexton v Homer [2013] NSWCA 414; (2013) 65 MVR 460
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306
Tory v Megna [2007] NSWCA 13
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816
Category: Principal judgment
Parties: Mau Quoc Lu - Appellant
Moya Heinrich - Respondent

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 Lu v Heinrich

Details

AGLC: Lu v Heinrich [2014] NSWCA 349
Case: [2014] NSWCA 349
Decision Date: 14 October 2014

CaseChat Overview and Summary

The appeal in *Lu v Heinrich* concerned a motor vehicle accident where the appellant, Mr. Lu, was injured when his stationary vehicle was struck from behind by the respondent's vehicle. Liability and the absence of contributory negligence were admitted, with the dispute centering on the extent of Mr. Lu's physical and psychiatric injuries and their causal connection to the accident. The primary judge had rejected Mr. Lu's contentions regarding the severity of his physical injuries and the existence of a psychiatric condition linked to the collision, leading to Mr. Lu's appeal to the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the primary judge's reasons adequately engaged with the medical evidence presented by Mr. Lu concerning the extent of his injuries and the causal link to any psychiatric condition, and whether the fact-finding process had miscarried. The court was also required to consider whether these issues constituted a substantial miscarriage of justice, warranting a new trial.

The Court of Appeal found that the primary judge's reasons did not sufficiently address the conflicting medical reports and the appellant's case as presented by his counsel. The court highlighted the obligation of legal practitioners to assist the trial judge in resolving such conflicts. By failing to adequately engage with the appellant's medical evidence and the arguments put forward, the primary judge's fact-finding process was deemed to have miscarried.

Consequently, the appeal was allowed. The orders made by the District Court on 12 November 2012 were set aside, and the matter was remitted to the District Court for a new trial limited to the assessment of damages. The costs of the first trial were left to the discretion of the judge presiding at the second trial, while the respondent was ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

(1) Appeal allowed.

(2) Set aside the orders made in the District Court on 12 November 2012.

(3) Remit the matter to the District Court for a new trial limited to damages.

(4) Cost of the first trial to be in the discretion of the judge presiding at the second trial.

(5) Respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified.

[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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

Lu v Heinrich [2014] NSWCA 349

Most Recent Citation

Steven Gregory v Qantas Airways Limited [2016] FWCFB 2108

Cases Citing This Decision

Leuzzi v Primo Concrete Pty Ltd [2025] NSWPICPD 62
Citation 1 (Para 3)

…A decision-maker’s failure to refer to evidence may not always be indicative of error.[54] [54] Lu v Heinrich [2014] NSWCA 349.…
Boyd v Thorn [2017] NSWCA 210
Citation 2 (Para 60)

…e Commission (1986) 161 CLR 141; [1986] HCA 54 at 147; [1986] HCA 54; Mastronardi v New South Wales [2007] NSWCA 54 at [83]-[86]; Lu v Heinrich [2014] NSWCA 349; 68 MVR 277 at [148]). As the High Court said in Stead at 145-6, “[i]t is no easy task for a court of appeal to satisfy itself that what appears on its fac…
Steven Gregory v Qantas Airways Limited [2016] FWCFB 2108
Citation 3 (Para 80)

…officer fails to refer to “material evidence” an inference may be available that the evidence was overlooked or discarded (see e.g. Lu v Heinrich [2014] NSWCA 349 at [80], citing Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116]). I accept that a similar inference may arise in the case of a non-judicial tribu…
Gregory v Qantas Airways Ltd [2016] FCAFC 7
Citation 4 (Para 17)

…officer fails to refer to “material evidence” an inference may be available that the evidence was overlooked or discarded (see e.g. Lu v Heinrich [2014] NSWCA 349 at [80], citing Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116]). I accept that a similar inference may arise in the case of a non-judicial tribu…
Bitupave Ltd t/as Boral Asphalt v Pillinger [2015] NSWCA 298
Citation 5

…eighton Contractors Pty Ltd [2015] NSWCA 72 House v The King [1936] HCA 40; (1936) 55 CLR 499 Lu v Heinrich [2014] NSWCA 349 Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Mummery v Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99 Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90 Piening v Wanless [1968] HCA 7; (1…
Welsh v Carnival Plc trading as Carnival Australia [2014] NSWCA 430
Citation 6 (Para 1)

…lies at the heart of the judicial process. There is no optimal template as to how to discharge the judicial obligation to give reasons: Lu v Heinrich [2014] NSWCA 349 per McColl JA (at [79]), Sackville AJA agreeing). However a judge is bound to expose his or her reasoning in sufficient detail to enable a losing par…

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Cases Cited

Sexton v Homer [2013] NSWCA 414
Citation 1 (Para 1)

…The relevant authorities were considered recently in Keith v Gal [2013] NSWCA 339; Sexton v Homer [2013] NSWCA 414; (2013) 65 MVR 460. Both judgments referred with approval (respectively at [112] and [43]) to the succinct synthesis of authorities in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 (at [116]) per Camp…
Keith v Gal [2013] NSWCA 339
Citation 2 (Para 1)

…The relevant authorities were considered recently in Keith v Gal [2013] NSWCA 339; Sexton v Homer [2013] NSWCA 414; (2013) 65 MVR 460. Both judgments referred with approval (respectively at [112] and [43]) to the succinct synthesis of authorities in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 (at [116]) per Camp…
P & M Quality Smallgoods Pty Ltd v Leap Seng [2013] NSWCA 167
Citation 3 (Para 1)

…CL has said, in such cases the mere tender of medical reports and medical records is unsatisfactory: P & M Quality Smallgoods Pty Limited v Leap Seng [2013] NSWCA 167 (at [104]). The parties should consider whether it is necessary to call experts whose competing opinions they ask the trial judge to consider. Even i…
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
Citation 4 (Para 1)

…minimum standards with which judicial reasons should conform to constitute a proper exercise of judicial power: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 (at [48]) per Basten JA (Beazley JA and Macfarlan JA agreeing). In considering whether a trial judge has discharged that obligation, his or her reaso…
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
Citation 5 (Para 1)

…460. Both judgments referred with approval (respectively at [112] and [43]) to the succinct synthesis of authorities in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 (at [116]) per Campbell JA (Allsop P and McColl JA agreeing) as follows:…
Mason v Demasi [2009] NSWCA 227
Citation 6 (Para 1)

…id manner, but asked his Honour to consider the manner and content of his evidence through the prism of his psychiatric condition: see Mason v Demasi [2009] NSWCA 227 (at [4]) per Basten JA. It is not apparent, with respect, that his Honour approached his evaluation of the appellant's case on this basis. This was p…
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Citation 7 (Para 1)

…NSWCA 187; (2006) 66 NSWLR 186 (at [28]) per Ipp JA. It is apparent that the "process of fact finding miscarried": Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (at [66]).…
Najdovski v Crnojlovic (No 2) [2008] NSWCA 281
Citation 8 (Para 21)

…R 430 at 443 - 444 (Meagher JA); Whalan v Kogarah Municipal Council at [40] (Mason P, Ipp JA and Tobias JA); Najdovski v Crnojlovic [2008] NSWCA 175; (2008) 72 NSWLR 728 at [21] (Basten JA, Allsop P agreeing); Sangha v Baxter [2007] NSWCA 264 at [22] (Ipp JA, Campbell JA agreeing ); Nominal Defendant v Kostic [2007] N…
Najdovski v Crnojlovic [2008] NSWCA 175
Citation 9

…NSW (1997) 48 NSWLR 430 at 443 - 444 (Meagher JA); Whalan v Kogarah Municipal Council at [40] (Mason P, Ipp JA and Tobias JA); Najdovski v Crnojlovic [2008] NSWCA 175; (2008) 72 NSWLR 728 at [21] (Basten JA, Allsop P agreeing); Sangha v Baxter [2007] NSWCA 264 at [22] (Ipp JA, Campbell JA agreeing ); Nominal Defend…
Sangha v Baxter [2007] NSWCA 264
Citation 10 (Para 22)

…(Mason P, Ipp JA and Tobias JA); Najdovski v Crnojlovic [2008] NSWCA 175; (2008) 72 NSWLR 728 at [21] (Basten JA, Allsop P agreeing); Sangha v Baxter [2007] NSWCA 264 at [22] (Ipp JA, Campbell JA agreeing ); Nominal Defendant v Kostic [2007] NSWCA 14 at [59] (Ipp JA, Hodgson JA and Campbell JA agreeing). Another wa…
Mastronardi v State of New South Wales [2007] NSWCA 54
Citation 11 (Para 1)

…be sure as to the result that would be reached in a new trial if the appellant's case is appropriately considered: see Mastronardi v New South Wales [2007] NSWCA 54 at [83]-[86] (Basten JA, Ipp and Campbell JJA agreeing).…
Tory v Megna [2007] NSWCA 13
Citation 12 (Para 1)

…r a new trial on any ground "unless it appears to the Court that some substantial wrong or miscarriage has thereby been occasioned": see Tory v Megna [2007] NSWCA 13 at [34]-[36] (Spigelman CJ, Beazley and Bryson JJA agreeing). The need for caution in ordering a new trial is emphasised by the requirement in s 56 o…
Nominal Defendant v Kostic [2007] NSWCA 14
Citation 13 (Para 59)

…SWLR 728 at [21] (Basten JA, Allsop P agreeing); Sangha v Baxter [2007] NSWCA 264 at [22] (Ipp JA, Campbell JA agreeing ); Nominal Defendant v Kostic [2007] NSWCA 14 at [59] (Ipp JA, Hodgson JA and Campbell JA agreeing). Another way in which this has been put is that the judge must engage with, or grapple or wrest…
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187
Citation 14 (Para 1)

…on the causation issue. His Honour's bald conclusion (at [38]) did not disclose adequate reasons in this respect: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 (at [28]) per Ipp JA. It is apparent that the "process of fact finding miscarried": Pollard v RRR Corporation Pty Ltd [2009] NSW…
CSR Ltd v Della Maddalena [2006] HCA 1
Citation 15 (Para 1)

…on of his claims. The respondent did not suggest that finding made his Honour's reasons immune from appellate scrutiny: see CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 (at [19]) per Kirby J (Gleeson CJ agreeing); State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) […
Waterways Authority v Fitzgibbon [2005] HCA 57
Citation 16 (Para 1)

…re to be understood as recording the steps that were in fact taken by the trial judge in arriving at the end result: Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 (at [130]) per Hayne J.…
Dixon v Whisprun Pty Ltd [2001] NSWCA 344
Citation 17 (Para 1)

…in the present appeal is to allow the appeal and order a new trial limited to damages. To adapt the language of Heydon J in Dixon v Whisprun Pty Ltd [2001] NSWCA 344, at [74] (Beazley JA and Davies AJA agreeing), there are sufficient doubts and questions about the primary Judge's reasoning and fact finding to conc…
Pt v Shorey [2001] NSWCA 127
Citation 18 (Para 1)

…injured person's mind informs the person that he or she has pain and disabilities which, save for the mental disorder, would not exist": PT v Shorey [2001] NSWCA 127 (at [72]) per Davies AJA. The appellant's case, as I understood it was put to the primary judge, was that if he had such a disorder, it was caused by…
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3
Citation 19 (Para 1)

…1; (2006) 80 ALJR 458 (at [19]) per Kirby J (Gleeson CJ agreeing); State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306.…
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Citation 20

…e can properly be taken as showing that the trial judge has erroneously overlooked or discarded it: ibid ; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443 - 444 (Meagher JA); Whalan v Kogarah Municipal Council at [40] (Mason P, Ipp JA and Tobias JA); Najdovski v Crnojlovic [2008] NSWCA 175; (2008…

Legislation Cited

Uniform Civil Procedure Rules 2005 (NSW) 51.53
2 mentions (from Para 1)
Civil Procedure Act 2005 (NSW)
1 mention (from Para 1)
Motor Accidents Compensation Act 1999 (NSW)
1 mention (from Para 1)
Suitors’ Fund Act 1951 (NSW)
1 mention
Supreme Court Rules 1970 (NSW)
1 mention (from Para 1)
Workers Compensation Act 1987 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Lu v Heinrich [2014] NSWCA 349
Hearing dates:	4 April 2014
Decision date:	14 October 2014
Before:	McColl JA at [1], Basten JA at [93], Sackville AJA at [135]
Decision:	(1) Appeal allowed. (2) Set aside the orders made in the District Court on 12 November 2012. (3) Remit the matter to the District Court for a new trial limited to damages. (4) Cost of the first trial to be in the discretion of the judge presiding at the second trial. (5) Respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified. [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 - damages - motor vehicle accident - plaintiff injured when stationary motor vehicle he was driving struck from behind by respondent's vehicle - liability admitted - no contributory negligence - extent of appellant's physical and psychiatric injuries in dispute - conflicting medical reports - primary judge rejected plaintiff's contentions as to extent of physical injuries and existence of causal connection between any psychiatric condition and - whether primary judge's reasons engaged with plaintiff's medical case - whether process of fact finding miscarried APPEAL - new trial - whether substantial miscarriage of justice LEGAL PRACTITIONERS - conflicting medical reports - obligation of counsel to address trial judge as to how conflicts should be resolved
Legislation Cited:	Civil Procedure Act 2005 (NSW) Motor Accidents Compensation Act 1999 (NSW) Suitors' Fund Act 1951 (NSW) Supreme Court Rules 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Workers Compensation Act 1987 (NSW)
Cases Cited:	CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 Dixon v Whisprun Pty Ltd [2001] NSWCA 344 Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 Keith v Gal [2013] NSWCA 339 Mason v Demasi [2009] NSWCA 227 Mastronardi v New South Wales [2007] NSWCA 54 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 P & M Quality Smallgoods Pty Limited v Leap Seng [2013] NSWCA 167 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 PT v Shorey [2001] NSWCA 127 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Sexton v Homer [2013] NSWCA 414; (2013) 65 MVR 460 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 Tory v Megna [2007] NSWCA 13 Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816
Category:	Principal judgment
Parties:	Mau Quoc Lu - Appellant Moya Heinrich - Respondent