Zhang v Fornito - [2009] NSWDC 143

CITATION: Zhang v Fornito [2009] NSWDC 143

HEARING DATE(S): 25, 26, 27 and 28 May 2009

JUDGMENT DATE:
29 June 2009

JURISDICTION: Civil

JUDGMENT OF: Hungerford ADCJ

DECISION: Verdict for the plaintiff against the defendant in the amount of $256,295.33; the parties will be heard on costs before final orders are made.

CATCHWORDS: TORTS - Motor vehicle accident - Negligence - Personal injury - Physical injuries and developed psychological injury - Liability of defendant admitted - Assessment of damages - Contributory negligence by plaintiff - Causal relationship of injuries to motor accident - Degree of impairment of earning capacity - Domestic assistance

LEGISLATION CITED: Motor Accidents Compensation Act 1999, ss 83(5), 124, 128, 130(b), 131 and Pt 3.4

CASES CITED: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Fennell v Supervision and Engineering Services Holdings Pty Ltd (1988) 47 SASR 6
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Roads and Traffic Authority v McGregor [2005] NSWCA 388

PARTIES: Hui Qin Zhang - Plaintiff
Salvatore Fornito - Defendant

FILE NUMBER(S): No 5266 of 2007

COUNSEL: Mr AJ Lidden SC and Mr RG Hanlon for Plaintiff
Mr JB Turnbull for Defendant

SOLICITORS: Brydens Law Office for Plaintiff
Curwoods Lawyers for Defendant

JUDGMENT

1 On the evening of 19 October 2003 at about 8.00pm the plaintiff, Hui Qin Zhang, was riding her bicycle returning home after visiting a friend. In proceeding through a roundabout at the intersection of Redman Street and Gould Street at Campsie the bicycle was struck on the rear wheel by a motor vehicle driven by the defendant, Salvatore Fornito, momentarily after he entered the roundabout. Although not wearing a helmet at the time, no head injury was sustained as the plaintiff fell to the roadway but injuries were allegedly suffered to her neck, left shoulder, back and ankle; the plaintiff herself was not hit by the vehicle. She was transported to Canterbury Hospital by ambulance for review and observation overnight and was discharged the following day. Gradually, over time she became anxious and has not since been able to perform gainful employment.

The claim and defence

2 Liability for the motor accident was admitted by the defendant who conceded breach of the duty of care owed to the plaintiff so that these proceedings were concerned only with the assessment of damages. However, contributory negligence was alleged in the plaintiff failing to take proper care for her own safety, principally by the bicycle not having a headlight and she wearing dark clothing, in the not insignificant amount of 25 per cent. The defendant admitted also that the plaintiff suffered some damages in respect of economic loss and superannuation contributions in the total sum of about $178,000. The plaintiff, on the other hand, claimed damages in the range of $832,000 to $1.188 million being, as described by her senior counsel, a lady who is “forever disabled by back and neck problems, with radiating problems…

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.

Keep reading for free

Create a free CaseChat account to read Zhang v Fornito and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWDC 143
Decision Date: 29 June 2009

CaseChat Overview and Summary

The parties involved in Zhang v Fornito were the plaintiff, Zhang, and the defendant, Fornito. The dispute arose from a motor vehicle accident where Zhang sustained both physical and psychological injuries. The case was heard in the Supreme Court of New South Wales. The central issue for the court to decide was the assessment of damages for Zhang’s injuries, with the defendant admitting liability for the accident. The court had to determine the causal relationship between the accident and Zhang’s injuries, the degree of impairment of his earning capacity, and whether there was any contributory negligence by Zhang.

The court examined the evidence presented on the extent of Zhang’s physical injuries and the psychological impact stemming from the accident. It was necessary to establish the causal link between the accident and the psychological injury, which required detailed medical evidence and expert opinions. The court also assessed Zhang’s pre-accident and post-accident earning capacity, taking into account his age, health, and vocational prospects. Additionally, the court considered whether Zhang’s contributory negligence, if any, should reduce the damages awarded.

In its judgment, the court found that Zhang’s physical injuries and psychological condition were directly caused by the accident. The court concluded that Zhang’s earning capacity was significantly impaired due to the injuries sustained. Although there was some contributory negligence by Zhang, it did not absolve the defendant of liability. The court awarded Zhang damages of $256,295.33, taking into account the degree of impairment and the need for domestic assistance. The parties will return to court to address the issue of costs before final orders are made.

Orders

Orders of the court

Verdict for the plaintiff against the defendant in the amount of $256,295.33; the parties will be heard on costs before final orders are made.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Zhang v Fornito [2009] NSWDC 143
HEARING DATE(S):	25, 26, 27 and 28 May 2009
JUDGMENT DATE:	29 June 2009
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	Verdict for the plaintiff against the defendant in the amount of $256,295.33; the parties will be heard on costs before final orders are made.
CATCHWORDS:	TORTS - Motor vehicle accident - Negligence - Personal injury - Physical injuries and developed psychological injury - Liability of defendant admitted - Assessment of damages - Contributory negligence by plaintiff - Causal relationship of injuries to motor accident - Degree of impairment of earning capacity - Domestic assistance
LEGISLATION CITED:	Motor Accidents Compensation Act 1999, ss 83(5), 124, 128, 130(b), 131 and Pt 3.4
CASES CITED:	Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Fennell v Supervision and Engineering Services Holdings Pty Ltd (1988) 47 SASR 6 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Roads and Traffic Authority v McGregor [2005] NSWCA 388
PARTIES:	Hui Qin Zhang - Plaintiff Salvatore Fornito - Defendant
FILE NUMBER(S):	No 5266 of 2007
COUNSEL:	Mr AJ Lidden SC and Mr RG Hanlon for Plaintiff Mr JB Turnbull for Defendant
SOLICITORS:	Brydens Law Office for Plaintiff Curwoods Lawyers for Defendant