SMITH -v- ZHONG [2015] WASCA 202
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 202 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:54/2014 | 21 APRIL 2015 | |
| Coram: | BUSS JA NEWNES JA MURPHY JA | 5/10/15 | |
| 36 | Judgment 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
- Appellant
AND
QIAN HUA ZHONG
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN…
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- Smith v Zhong [2015] WASCA 202
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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.
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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