Zhang v Zayati - [2018] NSWDC 385

District Court

New South Wales

Medium Neutral Citation: Zhang v Zayati [2018] NSWDC 385
Hearing dates: 17 October 2018 – 18 October 2018 (Parramatta); 8 November 2018 (Sydney)
Date of orders: 12 December 2018
Decision date: 12 December 2018
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Judgment for the plaintiff against the defendant.
(2) The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed.
(3) The parties are to bring in agreed Short Minutes of Order within 7 days for a judgment amount consistent with these reasons.
(4) Liberty to the parties to apply within 14 days for a costs order different to that set out in (2) above.
(5) Liberty to the parties to apply to the Associate to Dicker DCJ on three business days’ notice if there can be no agreement in relation to the judgment amount.

Catchwords: Torts – negligence – motor vehicle accident – liability not in issue – alleged physical and psychiatric injuries arising from the accident – extent of plaintiff's life stressors prior to the accident – nature of the plaintiff’s psychiatric injury caused by the accident – contested medical evidence – dispute as to damages issues
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW)
Civil Liability Act 2002 (NSW)
Cases Cited: Avopiling Pty Ltd v Bosevski [2018] NSWCA 146
Curtis v Harden Shire Council [2014] NSWCA 314
El-Mohamad v Celenk [2017] NSWCA 242
Hyjer v Lopes [2018] NSWDC 8
Malec v JC Hutton [1990] HCA 20; (1990) 169 CLR 638
Mason v Demasi [2009] NSWCA 227
Smith v Alone [2017] NSWCA 287
Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Category: Principal judgment
Parties: Joanne Yiwen Zhang (Plaintiff)
Rebecca Jayne Zayati (Defendant)
Representation:
Counsel:
R Foord (Plaintiff)
D O’Dowd (Defendant)
Solicitors:
Withstand Lawyers (Plaintiff)
Hall & Wilcox Lawyers (Defendant)

File Number(s): 2017/00278683

Judgment

In these proceedings, the plaintiff, Ms Joanne Yiwen Zhang, seeks damages under the Motor Accidents Compensation Act 1999 (NSW) (“the Act") for personal injuries alleged to have been suffered by her as a result of the negligence of the defendant in a motor vehicle accident on 27 May 2014.
In the motor vehicle accident, the defendant, in her vehicle, collided with the rear of the plaintiff's vehicle. The extent of the plaintiff's physical injuries as a result of the accident is in dispute. The plaintiff also claims psychiatric injuries arising from the physical injuries which she suffered in the accident. The plaintiff has not reached the impairment threshold of greater than 10% which allows the award of damages for non-economic loss under s 131 of the Act. The plaintiff's claim is for:

Past out of pocket expenses;

Future out of pocket expenses;

Past economic loss;

Past superannuation loss;

Loss of future earning capacity and future superannuation loss; and

A claim for future domestic assistance on the basis of paid commercial assistance.

There is a significant dispute between the…

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 Zhang v Zayati

Details

AGLC: Zhang v Zayati [2018] NSWDC 385
Case: [2018] NSWDC 385
Decision Date: 12 December 2018

CaseChat Overview and Summary

In the matter of Zhang v Zayati, the plaintiff, Zhang, sought damages for physical and psychiatric injuries sustained in a motor vehicle accident caused by the defendant, Zayati. The parties did not dispute liability. The dispute centred on the extent of damages for the injuries suffered. The court was required to determine the extent of the plaintiff's pre-existing life stressors, the nature of the psychiatric injury caused by the accident, and the quantum of damages for the injuries.

The court examined the evidence provided by the parties, including medical evidence, to assess the plaintiff's pre-existing life stressors and the psychiatric injury caused by the accident. The court considered the expert evidence and found that the plaintiff's pre-existing life stressors did not significantly contribute to the psychiatric injury caused by the accident. The court held that the plaintiff had suffered a compensable psychiatric injury as a result of the accident.

The court found that the plaintiff was entitled to damages for the psychiatric injury caused by the accident. The court considered the evidence provided by the parties and determined the quantum of damages. The court held that the plaintiff was entitled to damages for the physical injuries caused by the accident. The court ordered that judgment be entered for the plaintiff against the defendant and that the defendant pay the plaintiff's costs of the proceedings.

The court further ordered that the parties bring in agreed Short Minutes of Order within 7 days for a judgment amount consistent with these reasons, and that the parties have liberty to apply within 14 days for a costs order different to that set out in the judgment. The court also granted liberty to the parties to apply to the Associate to Dicker DCJ on three business days’ notice if there can be no agreement in relation to the judgment amount.

Orders

Orders of the court

(1) Judgment for the plaintiff against the defendant.

(2) The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed.

(3) The parties are to bring in agreed Short Minutes of Order within 7 days for a judgment amount consistent with these reasons.

(4) Liberty to the parties to apply within 14 days for a costs order different to that set out in (2) above.

(5) Liberty to the parties to apply to the Associate to Dicker DCJ on three business days’ notice if there can be no agreement in relation to the judgment amount.

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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Medium Neutral Citation:	Zhang v Zayati [2018] NSWDC 385
Hearing dates:	17 October 2018 – 18 October 2018 (Parramatta); 8 November 2018 (Sydney)
Date of orders:	12 December 2018
Decision date:	12 December 2018
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff against the defendant. (2) The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed. (3) The parties are to bring in agreed Short Minutes of Order within 7 days for a judgment amount consistent with these reasons. (4) Liberty to the parties to apply within 14 days for a costs order different to that set out in (2) above. (5) Liberty to the parties to apply to the Associate to Dicker DCJ on three business days’ notice if there can be no agreement in relation to the judgment amount.
Catchwords:	Torts – negligence – motor vehicle accident – liability not in issue – alleged physical and psychiatric injuries arising from the accident – extent of plaintiff's life stressors prior to the accident – nature of the plaintiff’s psychiatric injury caused by the accident – contested medical evidence – dispute as to damages issues
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW) Civil Liability Act 2002 (NSW)
Cases Cited:	Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 Curtis v Harden Shire Council [2014] NSWCA 314 El-Mohamad v Celenk [2017] NSWCA 242 Hyjer v Lopes [2018] NSWDC 8 Malec v JC Hutton [1990] HCA 20; (1990) 169 CLR 638 Mason v Demasi [2009] NSWCA 227 Smith v Alone [2017] NSWCA 287 Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Category:	Principal judgment
Parties:	Joanne Yiwen Zhang (Plaintiff) Rebecca Jayne Zayati (Defendant)
Representation:	Counsel: R Foord (Plaintiff) D O’Dowd (Defendant) Solicitors: Withstand Lawyers (Plaintiff) Hall & Wilcox Lawyers (Defendant)
File Number(s):	2017/00278683