Smith v Zhong

Case [2015] WASCA 202


SMITH -v- ZHONG [2015] WASCA 202



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2015] WASCA 202
THE COURT OF APPEAL (WA)
Case No:CACV:54/201421 APRIL 2015
Coram:BUSS JA
NEWNES JA
MURPHY JA
5/10/15
36Judgment Part:1 of 1
Result: Appeal dismissed
Cross-appeal dismissed
A
PDF Version
Parties:JACQUELINE ROSEMARY SMITH
QIAN HUA ZHONG

Catchwords:

Damages
Assessment of past and future loss of earning capacity
Principles applicable
Assessment of past and future economic loss where appellant was carrying on a business in partnership with her husband
Appellant's injuries rendered her less capable of promoting business
Appellant's reduced capacity to carry out administrative tasks for the business
Replacement labour
Damages
Assessment of non­pecuniary loss
Section 3C of the Motor Vehicle (Third Party Insurance) Act 1943 (WA)
Whether 30% of an amount awarded in a most extreme case within sound discretionary range

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C

Case References:

Batt v Wilkinson [1983] 2 Qd R 619
Circosta v Falzon [1999] NSWCA 308; (1999) 30 MVR 365
Cochrane v Hannaford [1999] NSWCA 37
Cole v Ellis (1992) Aust Torts Reports 81-186
Conley v Minehan [1999] NSWCA 432
Den Hoedt v Barwick [2006] WASCA 196; (2006) 46 MVR 30
Dunlany v Hunters Hill Bus Co Pty Ltd (Unreported, NSWCA, 12 May 1983)
Elford v FAI General Insurance Co Ltd [1994] 1 Qd R 258
Future Look Landscaping Pty Ltd v Hanlon (Unreported, NSWSC, CA 40658-1997, 8 July 1998)
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Kschammer v RW Piper & Sons Pty Ltd [2003] WASCA 298
Mastaglia v Burns [2006] WASCA 190; (2006) 32 WAR 427
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Montemaggiori v Wilson [2011] WASCA 177; (2011) 58 MVR 497
Morbatjou v Moradkhani [2013] NSWCA 157
Paff v Speed [1961] HCA 4; (1961) 105 CLR 549
Randall v Dul (1994) 13 WAR 205
Rauk v Transtate Pty Ltd [2000] NSWSC 1020; (2001) Aust Torts Reports 81-592
Smith v Zhong [2015] WADC 50
Spargo v Haden Engineering Pty Ltd (1993) 60 SASR 39
State Government Insurance Commission v Hitchcock (Unreported, WASC (FC), WA Library No 970089A, 11 March 1997)
State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
Szittner v Harriot [1967] 1 NSWR 233
Taroporewalla v Berkery (1983) 3 NSWLR 28
Tibbett v Davidson (1976) WAR 24
Wainright v Barrick Gold of Australia Ltd [2014] WASCA 15; (2014) 46 WAR 219


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SMITH -v- ZHONG [2015] WASCA 202 CORAM : BUSS JA
    NEWNES JA
    MURPHY JA
HEARD : 21 APRIL 2015 DELIVERED : 5 OCTOBER 2015 FILE NO/S : CACV 54 of 2014 BETWEEN : JACQUELINE ROSEMARY SMITH
    Appellant

    AND

    QIAN HUA ZHONG
    Respondent


ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN…

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Details
AGLC
Smith v Zhong [2015] WASCA 202
Case
[2015] WASCA 202
Decision Date

CaseChat Overview and Summary

The appeal was heard by the Supreme Court of Western Australia, where Smith, the appellant, sought a higher assessment of damages against Zhong, the respondent, following a motor vehicle accident. Smith, who had been a partner in a family business, claimed that her injuries significantly reduced her ability to promote and manage the business, leading to a substantial loss in earning capacity. Zhong, on the other hand, argued that the damages awarded were excessive, and Smith's claims for both economic and non-pecuniary losses were overstated.

The central legal issues revolved around the appropriate principles for assessing Smith's past and future economic losses, particularly given her role in a partnership, and whether the amount awarded for non-pecuniary loss was within the sound discretionary range under section 3C of the Motor Vehicle (Third Party Insurance) Act 1943 (WA). The court had to consider the extent to which Smith's injuries affected her ability to perform her duties within the business and whether the replacement labour could adequately fill the gap left by her reduced capacity. Additionally, the court examined whether the quantum of damages for non-pecuniary loss was commensurate with the severity of her injuries.

The court found that Smith's claims for past economic loss were substantiated, as her injuries had undeniably impaired her ability to contribute to the business. However, the court held that the award for future economic loss should be reduced, as it was deemed excessive given the potential for Smith to work in a less demanding role or for the business to adapt to her reduced capacity. Regarding non-pecuniary loss, the court determined that the percentage of the award, which was 30% of an amount that would be awarded in a most extreme case, was within the sound discretionary range and thus upheld the lower court's decision.

The final orders of the court were to dismiss both the appeal and the cross-appeal, thereby affirming the original judgment regarding the quantum of damages awarded to Smith.

Orders

Orders of the court

Appeal dismissed

Cross-appeal dismissed

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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