Chung v Anderson

(2004) 61 NSWLR 369; [2004] NSWCA 321

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Arguments not advanced at trial
3. › Whether new arguments may be raised on appeal
4. › Requirement of exceptional circumstances
5. › No exceptional circumstances shown
1. Damages
2. › Personal injury
3. › Future economic loss
4. › Residual earning capacity
5. › Assessment of 30% residual capacity
6. › Whether finding disclosed appellable error
1. Damages
2. › Personal injury
3. › Future economic loss
4. › Vicissitudes
5. › Usual deduction of 15%
6. › Whether departure from usual figure without notice to parties was permissible
7. › Whether appellant could challenge deduction on appeal when no argument advanced at trial
1. Evidence
2. › Expert evidence
3. › Medical reports tendered without objection or cross-examination
4. › Whether court may reject unchallenged expert opinion

Quick Take

A party who fails to advance arguments on vicissitudes or causation at trial will not ordinarily be permitted to raise those arguments on appeal absent exceptional circumstances. Where a defendant does not demur to the plaintiff's submission that the usual 15% vicissitudes discount should apply, the trial judge should not depart from that figure without notice to the parties. An expert opinion admitted without objection and not contradicted will only be rejected in unusual cases.