Cai v Zheng [2009] NSWCA 13

Appeal Outcome: Appeal allowed by the High Court, 9 December 2009 [2009] HCA 52

New South Wales Court of Appeal

CITATION: Cai v Zheng [2009] NSWCA 13

HEARING DATE(S): 04/02/2009

JUDGMENT DATE: 25 February 2009

JUDGMENT OF: Giles JA at 1; Basten JA at 4; Hoeben J at 5

The appeal is allowed. The judgment in favour of the respondent in the amount of $300,681 is set side and in substitution thereof judgment is entered for the respondent in the sum of $17,447.91. DECISION: The appellant is to pay the respondent's costs of the trial before Garling DCJ calculated as if judgment had been entered in favour of the respondent in the amount of $173,243. The respondent is to pay fifty percent of the appellant's costs of the appeal. The respondent's application for leave to rely upon her cross-appeal is refused with costs.

CATCHWORDS: APPEAL – applicable law – change in general law after trial – point not taken at trial – subsequent change in statute law – Motor Accidents Compensation Act 1999 (NSW), s 128(3) - COSTS – issue not raised at trial - DAMAGES – assessment of gratuitous care – application of Motor Accidents Compensation Act 1999 (NSW), s 128(3) - DAMAGES – indemnity – compensation payment to be brought into account – Workers Compensation Act 1987 (NSW), s 151Z(1)(e) - TORTS – motor vehicle accident – assessment of damages – economic loss – whether payments received from church after injury should be taken into account when calculating damages – Motor Accidents Compensation Act 1999 (NSW), s 128(3) as amended by Civil Liability Legislation Amendment Act 2008 (NSW) –"proceedings determined before that commencement" - WORDS AND PHRASES – "determined" – "proceedings determined" before commencement of amendment – completed trial – error on basis other than non-application of amended legislation