Tchen v Nominal Defendant

[2010] NSWCA 245

New South Wales

Court of Appeal

CITATION:	Tchen v The Nominal Defendant [2010] NSWCA 245
HEARING DATE(S):	6 September 2010
JUDGMENT DATE:	29 September 2010
JUDGMENT OF:	Giles JA at 1; Basten JA at 2; Sackville AJA at 3
DECISION:	1. Appeal allowed. 2. Set aside Order 1 made by the primary Judge and in lieu thereof judgment should be entered in favour of the appellant against the respondent in the sum of $72,588.24. 3. The respondent to pay the appellant’s costs of the appeal.
CATCHWORDS:	ASSESSMENT OF DAMAGES – causation - whether injury to appellant's right knee was caused by motor vehicle accident. - Whether appellant's lost opportunity to gain employment was compensable - whether "buffer" should have been awarded for future economic loss.
LEGISLATION CITED:	Motor Accidents Compensation Act 1999, ss 126, 128, Part 3.4 Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 Workers Compensation Act 1987, ss 40, 52A
CATEGORY:	Principal judgment
CASES CITED:	Larson v Commissioner of Police [2004] NSWCA 126 Majkic v Bonanno [2008] NSWCA 253 Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Motor Accidents Authority (NSW) v Mills [2010] NSWCA 82; 55 MVR 243 Penrith City Council v Parks [2004] NSWCA 201 Pham v Shui [2006] NSWCA 373; 47 MVR 231 Purkess v Crittenden [1965] HCA 34; 114 CLR 164 Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332 Warren v Coombes [1979] HCA 9; 142 CLR 531 Zreika v New South Wales [2009] NSWCA 99
PARTIES:	Michael Tchen (Appellant) The Nominal Defendant (Respondent)
FILE NUMBER(S):	CA 2009/298556
COUNSEL:	Norton SC/ Daley (Appellant) Turnbull (Respondent)
SOLICITORS:	Brydens Law Office (Appellant) Ferguson Lawyers (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	3478/08
LOWER COURT JUDICIAL OFFICER:	Gibb DCJ
LOWER COURT DATE OF DECISION:	11 December 2009

CA 2009/298556

GILES JA
BASTEN JA
SACKVILLE AJA

29 September 2010

MICHAEL TCHEN v THE NOMINAL DEFENDANT

Judgment

1 GILES JA: I agree with the orders proposed by Sackville AJA and with his reasons.

2 BASTEN JA: I agree with Sackville AJA.

3 SACKVILLE AJA: This is an appeal from a decision of a Judge of the District Court (Gibb DCJ) awarding damages to the appellant for personal injuries sustained by him when struck by a motor vehicle. The appellant, the plaintiff in the proceedings, appeals on the ground that the primary Judge erred in her assessment of damages. The appellant asks this Court to reassess damages with respect to past and future economic loss and past and future domestic assistance. Alternatively, he seeks an order remitting the matter to the District Court for a further hearing on the question of quantum.

4 The appellant was struck by a vehicle at about 5 pm on 23 June 2005 when crossing the road at the intersection of the Hume Highway and Moore Street Liverpool. The appellant was on his way home from work. The driver of the vehicle did not stop. There is…