Zeng v Zeng [2011] NSWDC 84

District Court New South Wales

Medium Neutral Citation: Zeng v Zeng [2011] NSWDC 84 Hearing dates: 02/08/11-03/08/11 Decision date: 05 August 2011 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: See paragraph 85 Catchwords: Personal injury, obligations of an assistant. Legislation Cited: Civil Liability Act 2002 Evidence Act Cases Cited: Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Mason v Demasi [2009] NSWCA 227 Miller v Galderisi [2009] NSWCA 353 Category: Principal judgment Parties: Yun Lin Zeng (Plaintiff) Huang Zheng Zeng (Defendant) Representation: K Andrews (Plaintiff) D O'Dowd (Defendant) Wyatt Attorneys (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2010/00212450

Judgment 1The plaintiff lives in Narwee with his wife and two of his three children. His eldest child lives in Padstow. He is the defendant. 2The defendant bought his house in Padstow in 2007. In July of that year he sought assistance from his father in the laying of a timber floor. In the course of this work, on 4 July, the plaintiff was injured. He says that his injury was caused by the negligence of his son. The Defence to the proceedings denies negligence and, in the alternative, alleges contributory negligence. 3The action is governed by the Civil Liability Act 2002 ("the CLA"). The plaintiff claimed damages under the following heads: Non-economic loss, past and future economic loss, future paid assistance and past and future medical expenses. The defendant did not dispute the injury. Rather he challenged its effects, especially their translation into damages. 4One of the main issues between the parties concerned the content of a verbal instruction given by the plaintiff to the defendant. Resolution of this issue was complicated by these two matters: (a)The plaintiff and his family are Chinese. The evidence from the plaintiff and the defendant was given through an interpreter. The court was faced with the difficulty of both trying to understand what was actually said in the parties' native language and what was meant by the words. For example, the parties' legal representatives sought to draw a distinction between 'power' and 'electricity'. The interpreter said that the Mandarin translation of these two English words was the same word. (b)There was an obvious, and understandable, reluctance on the part of the defendant in giving evidence against his father. He was manifestly uncomfortable and struggled to find a balance between relating his version and not contradicting his father's case. 5The result of the two matters I have outlined above was that I found it impossible to reach a firm conclusion on what was said, let alone what was intended. Despite this dilemma the objective picture of what occurred was relatively simple to ascertain.