Kwong v Abdulwahab

[2016] NSWCA 107

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Civil appeal
3. › Challenge to findings of fact
4. › Power of Court of Appeal to make findings of fact
5. › Whether appellate court can resolve factual disputes without retrial
6. › Fox v Percy principles
7. › Supreme Court Act 1970 (NSW), s 75A
1. Damages
2. › Personal injury
3. › Loss of earning capacity
4. › Supervening condition
5. › Whether loss attributable to tortious injury or independent condition
6. › Onus of proof
7. › Watts v Rake principle
1. Damages
2. › Personal injury
3. › Future medical expenses
4. › Degree of probability of future treatment
5. › Whether probability so low as to be speculative
6. › Malec v JC Hutton Pty Ltd
1. Practice and Procedure
2. › Trial
3. › Procedural fairness
4. › Browne v Dunn rule
5. › Whether witness must be given opportunity to answer proposition critical of their evidence
6. › Submissions attacking own witness's credibility without cross-examination

Quick Take

Where a primary judge's finding of fact is unsustainable but the remaining factual question can be resolved by reference to medical evidence and objective evidence (such as surveillance footage) rather than credibility assessments, the Court of Appeal may resolve the issue itself under Fox v Percy and s 75A rather than ordering a retrial. The probability of future medical treatment must be assessed realistically; where a plaintiff shows no enthusiasm for surgery and the medical evidence does not support it, an award for future medical expenses will be set aside as speculative under Malec v JC Hutton. Counsel must not submit that their own witness fabricated evidence without having put that proposition to the witness in cross-examination.