Tan v Mitchell - [2006] NSWCA 178

NEW SOUTH WALES COURT OF APPEAL

CITATION: Tan v Mitchell [2006] NSWCA 178

FILE NUMBER(S):
40417/05
40409/05

HEARING DATE(S): 30/06/06

DECISION DATE: 12/07/2006

PARTIES:
Joy Al-Ling Tan (Appellant/Claimant)
Justin Lee Mitchell (Respondent/Opponent)

JUDGMENT OF: Mason P Ipp JA Bryson JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 11420/01; DC 2345/03

LOWER COURT JUDICIAL OFFICER: Hughes DCJ

COUNSEL:
CA 40417/05
L M Morris QC/D M Wilson (Appellant)
P Maiden SC/R Foord (Respondent)
CA 40409/05
B Conti SC/G Giurtalis (Claimant)
K Rewell SC/J Gracie (Opponent/Insurer)

SOLICITORS:
CA 40417/05
Abbott Tout (Appellant)
Mark Brown & Associates (Respondent)
CA 40409/05
McClellands (Claimant)
Vardanega Roberts (Opponent)

CATCHWORDS:
NEGLIGENCE - collision between motorcycle and motor car - motor car pulling out of parking spot when collision occurred - DAMAGES - past and future economic loss. ND

LEGISLATION CITED:
Motor Accidents Act 1988 (NSW), s 70A

DECISION:
(1) In CA40417/05 verdict and judgment ordered by Hughes DCJ is set aside and in lieu thereof order a verdict and judgment in the sum of $793,029.00. Ms Tan to pay the costs of the appeal in CA 40417/05 (2) In CA 40409/05 Ms Tan's appeal is dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40417/05
CA 40409/05
DC 11420/01
MASON P
IPP JA
BRYSON JA
Wednesday 12 July 2006

JOY AL-LING TAN v JUSTIN LEE MITCHELL

Judgment

MASON P: I agree with Ipp JA.
IPP JA: On 18 November 1998, at approximately 5.45 pm, a Mitsubishi Magna driven by Ms Joy Al-Ling Tan collided with a motorcycle driven by Mr Justin Lee Mitchell in Hickson Road, The Rocks. Both Ms Tan and Mr Mitchell were injured in the collision. Each sued the other for damages for personal injuries. Ms Tan’s damages were agreed at $75,000 but Mr Mitchell’s damages were in dispute. Hughes DCJ found that the sole cause of the collision was the negligence of Ms Tan. He dismissed her claim against Mr Mitchell and upheld Mr Mitchell’s claim. He assessed Mr Mitchell’s damages at $929,928.60.
Ms Tan appeals against the judgment handed down in favour of Mr Mitchell (CA 40417 of 2005). She also sought leave to appeal against the judgment dismissing her claim (CA 40409 of 2005). During the course of argument, leave was granted. The two appeals were thereupon heard together.
Mr D Conti SC appeared with Mr Giurtalis for Ms Tan in the application for leave to appeal and appeal in CA 40409 of 2005. Mr L M Morris QC appeared with Mr Wilson for Ms Tan in the appeal in CA 40417 of 2005, having been instructed by Ms Tan’s compulsory third party insurer. Mr K Rewell SC appeared with Mr Gracie for Mr Mitchell in CA 40409 of 2005, having been instructed by Mr Mitchell’s compulsory third party insurer. Mr P Maiden SC appeared with Mr Foord for Mr Mitchell in CA 40417 of 2005.
Queries were raised from the bench as to the need for the double representation of…

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 Tan v Mitchell

Details

AGLC: Tan v Mitchell [2006] NSWCA 178
Case: [2006] NSWCA 178
Decision Date: 12 July 2006

CaseChat Overview and Summary

In *Tan v Mitchell*, the New South Wales Court of Appeal considered a dispute arising from a collision between a motorcycle and a motor car. The motor car had been pulling out of a parking spot when the collision occurred. The appeal concerned the assessment of damages, specifically past and future economic loss.

The Court of Appeal was required to determine whether the primary judge had erred in their assessment of damages. This involved a review of the evidence presented regarding the plaintiff's injuries and their impact on his earning capacity, as well as the defendant's liability for the collision.

The Court found that the primary judge had made errors in calculating the economic loss. Mason P, Ipp JA, and Bryson JA analysed the evidence concerning the plaintiff's past and future economic loss, applying principles of negligence and damages assessment. They determined that a higher award was warranted based on their re-evaluation of the evidence and the applicable legal principles.

Consequently, the Court ordered that the verdict and judgment entered in the District Court be set aside and a new judgment entered in the sum of $793,029.00. Ms Tan was ordered to pay the costs of the appeal in CA40417/05, while her appeal in CA40409/05 was dismissed with costs.

Orders

Orders of the court

(1) In CA40417/05 verdict and judgment ordered by Hughes DCJ is set aside and in lieu thereof order a verdict and judgment in the sum of $793,029.00. Ms Tan to pay the costs of the appeal in CA 40417/05 (2) In CA 40409/05 Ms Tan's appeal is dismissed with costs.

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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