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Medical negligence May 17, 2016


Kwong v Abdulwahab [2016] NSWCA 107

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

DAMAGES – claim for damages for future medical expenses – unsupported by evidence – primary judge erred in making award – degree of probability of future medical treatment “so low as to be regarded as speculative” – Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 – appeal allowed as to award of damages for future medical expenses only

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