Vo v Tran (No 2) - [2016] NSWSC 1198

Supreme Court

New South Wales

Medium Neutral Citation: Vo v Tran (No 2) [2016] NSWSC 1198
Hearing dates: 18 August 2016
Date of orders: 30 August 2016
Decision date: 30 August 2016
Jurisdiction: Common Law
Before: Hall J
Decision:
(1) I enter verdict and judgment in favour of the plaintiff in the amount of $512,764.94.
(2) I order that the defendants pay the plaintiff’s costs of the proceedings on the ordinary basis, including the hearing on 18 August 2016.
Catchwords: DAMAGES – calculation of future superannuation loss by way of a buffer as a component in the award by way of a buffer for future economic loss – no specific head of claim particularised in relation to claim for physiotherapy and accordingly no allowance made in that regard
Legislation Cited: Civil Liability Act 2002
Cases Cited: Dean v Phung [2011] NSWSC 653
Category: Procedural and other rulings
Parties: Thi Ngoc Hien Vo (Plaintiff)
Hung Vien Tran (First Defendant)
Thuy My Le (Second Defendant)
Representation:
Counsel:
DE Baran (Plaintiff)
N Polin SC (Defendants)
Solicitors:
Shine Lawyers (Plaintiff)
Curwoods Lawyers (Defendants)

File Number(s): 2014/242686

Judgment

On 29 July 2016, I delivered reasons for judgment.
I stated at [259] that, subject to further submissions on damages, judgment would be entered in favour of the plaintiff against the defendants.
The parties, in accordance with [260] of the judgment were to confer in relation to specified heads of damages.
On behalf of the plaintiff, Mr Baran of counsel provided written submissions dated 15 August 2016 which set out a Table of Damages sought.
Mr Polin SC provided the Defendants’ Submissions as to Final Orders dated 16 August 2016, as well as Defendants’ Submissions as to the Court Granting a Stay.
Mr Baran relied upon the Plaintiff’s Outline of Submissions in Response to the Defendants’ Submissions, dated 16 August 2016.
The proceedings were listed before me on 18 August 2016 on which occasion I heard further submissions from counsel for the parties.
Agreement was reached as to the amounts repayable to Medibank Private ($4,426.50) and damages pursuant to Fox v Wood ($4,811).
That left two matters outstanding, namely, future lost superannuation contributions claimed at 14.75%, $17,500 and a claim for future physiotherapy in the amount of $2,775.
In relation to future economic loss I assessed the plaintiff’s loss on the basis of s 13 of the Civil Liability Act 2002 and took into account the matters set out in [227](1)-(8).
In the Defendants’ Submissions as to Final Orders on the issue of future superannuation, the defendants stated that they did not agree to any further allowance for superannuation and that the Court had allowed a buffer for future economic loss of $125,000. It was stated, “This figure no doubt was inclusive of superannuation”: at [6].
A further submission was made on behalf of the defendants that in any event, if applicable, the rate for future superannuation should be averaged and a rate of 11% applied. It was noted that the current range for…

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 Vo v Tran (No 2)

Details

AGLC: Vo v Tran (No 2) [2016] NSWSC 1198
Case: [2016] NSWSC 1198
Decision Date: 30 August 2016

CaseChat Overview and Summary

The case of Vo v Tran (No 2) involved Vo, the plaintiff, suing Tran, the defendant, for damages related to personal injuries sustained in a car accident. The dispute was heard by the Supreme Court of New South Wales, which had to determine the appropriate amount of compensation for Vo's future economic loss, including superannuation contributions, as well as for past and future medical expenses. The legal issues the court had to resolve centred on the calculation of the future economic loss, particularly the loss of superannuation contributions, and whether the plaintiff had adequately particularised a claim for physiotherapy costs.

The court examined the evidence provided by Vo regarding the loss of superannuation contributions and determined that a buffer should be applied to account for future economic fluctuations. This buffer was incorporated into the award of damages. Regarding the claim for physiotherapy expenses, the court found that the plaintiff had not sufficiently particularised this claim. Consequently, the court did not include an allowance for physiotherapy in the damages awarded. The reasoning of the court was based on the need for claimants to clearly articulate each head of claim to ensure that the defendant is adequately informed and can respond appropriately. The court applied this principle strictly, leading to the exclusion of the physiotherapy costs from the damages.

The court's decision resulted in an award of damages that included a buffer for future superannuation losses but excluded any provision for physiotherapy expenses. The court's reasoning highlighted the importance of clear particularisation of claims to avoid potential prejudice to the defendant. The final orders of the court reflected this reasoning, ensuring that the damages awarded were both fair and just, based on the evidence and arguments presented.

Orders