Kwong v Abdulwahab [2016] NSWCA 107

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Kwong v Abdulwahab [2016] NSWCA 107 Hearing dates: 21 April 2016 Decision date: 13 May 2016 Before: Basten JA at [1], Simpson JA at [20], Barrett AJA at [98] Decision: (1) The time in which to appeal is extended to 22 September 2015;

(2) Appeal allowed in part;

(3) Set aside the judgment for $534,695;

(4) In lieu thereof enter judgment for the plaintiff for $524,695. Catchwords: APPEAL – civil – whether primary judge erred in findings of fact – challenge to findings of fact without foundation – findings of fact supported by evidence – no material errors made

DAMAGES – negligent medical treatment – injury to plaintiff's right hand – liability admitted – past and future economic loss – diminution in earning capacity – whether attributable to hand injury or supervening back condition – onus of proof – challenges to findings of fact – finding that plaintiff manufactured back condition for ulterior purpose – unsubstantiated – failure of primary judge to undertake evidentiary analysis – power of Court of Appeal to make findings of fact – Supreme Court Act 1970 (NSW), 75A – loss of earning capacity attributable to hand injury

APPEAL – civil – adequacy of reasons – whether primary judge failed to provide adequate reasons for quantification of economic loss – no submission that award was excessive or unsupported by evidence – Court of Appeal has powers and duties of court below – Supreme Court Act 1970 (NSW), s 75A(6) – inference drawn that earning capacity could be no more than $500 per week – absence of reasons not fatal to award