In brief - Careful consideration should be given when an unsuccessful party appeals a judgment on the basis of the primary judge's assessment of quantum, particularly with awards of non-economic loss

The recent New South Wales Court of Appeal decision in White v Redding [2019] NSWCA 152 explored issues in assessing quantum in cases of personal injury, where the effect of the injury on a young plaintiff remains largely unknown. The Court, comprising Macfarlan JA, Gleeson JA and White JA dismissed an appeal by Mr White who challenged the primary judge's assessment of quantum.

Background to Damages Claimed

The respondent, Ms Newbie Redding, was struck by a tennis ball in her left eye on 12 January 2014 which resulted in a 97 per cent loss of vision in her left eye. The tennis ball was flung into the air by the appellant, Mr White, whilst he was playing an indoor cricket game in the Function Room at the Manly Lifesaving Club. As a result, Ms Redding claimed damages for negligence against Manly Lifesaving Club and Mr White. 

The primary judge, District Court Judge Russell, found in favour of Ms Redding in her claim against Mr White in the District Court of New South Wales and awarded Ms Redding $692,806.30 in damages. Mr White appealed against the awards made to Ms Redding in respect of non-economic loss, economic loss and out of pocket expenses (for contact lenses). The issues on appeal were:

  1. whether the primary judge erred in assessing the severity of Ms Redding's non-economic loss at 55 per cent of a most extreme case; 

  2. whether the primary judge erred in assessing Ms Redding's loss of future earning capacity; and 

  3. whether the primary judge erred in making an allowance of $25,000 for the possible cost to Ms Redding of contact lenses. 

Test for Review of Assessment of Severity Non-Economic Loss 

When assessing non-economic loss, the primary judge took into account the effect of the incident on Ms Redding's ability to participate in gymnastics at an elite level (as she had, to the date of injury, an ability at this level) and other sporting activities due to the loss of her depth perception in addition to the interference with her vision. Consideration was also given to Ms Redding's likely restriction to sedentary occupations, despite previously being likely to pursue a career in an outdoor sporting field, given her talents identified at an early age. 

The Court of Appeal considered it entirely appropriate for the primary judge to take the above factors into account and found that the primary judge's conclusion, that the severity of Ms Redding's non-economic loss was 55 per cent of a most extreme case was not erroneous nor had the primary judge in some way mistaken the facts or the legal principles. In reaching this conclusion, the Court of Appeal placed weight on the advantage that the primary judge had over the Court of Appeal, being that the primary judge had an opportunity to witness Ms Redding and her mother give evidence at first instance. The Court of Appeal determined that given this advantage, the primary judge was in a better position to make a determination of the severity of Ms Redding's non-economic loss. 

Notwithstanding the above, Justices Gleeson, White and Macfarlan all agreed that there was no error in the primary judge's determination with respect to non-economic loss, Justices Gleeson and White, however, disagreed with Justice Macfarlan in relation to the correct test for appellate review of an assessment of the severity of non-economic loss. 

At the outset, it was noted by Justice Gleeson that the well-established authority for determining judicial error is referred to in Miller v Jennings (1954) 92 CLR 190 which provides that "an appellant court will not disturb a primary judge's award of damages for personal injury unless it is convinced that he has acted on a wrong principal of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be wholly erroneous estimate of the damages suffered." This is referred to in House v King (1936) 55 CLR 499 as "the deferential standard applicable to appellate review of an exercise of judicial discretion".

Macfarlan JA, however, argued that given that the award of general damages for non-economic loss is now regulated by statute, the correct approach is now the "correctness standard" test referred to in Warren v Coombes (1979) 142 CLR 531 which requires the Court of Appeal to determine whether, taking into account any advantage that the primary judge had in hearing the evidence, the primary judge's decision was erroneous. Macfarlan JA considered that the "correctness standard" was the appropriate test in circumstances where the assessment of non-economic loss involves the Court answering a question to which there is only one correct answer (i.e. the severity of the loss expressed in percentage terms) as opposed to choosing between a range of outcomes. 

Conversely, Justices Gleeson and White considered that the evaluative nature of assessing non-economic loss does not call for one unique outcome. In Justice Gleeson's opinion, the Court should not intervene in the assessment as to the appropriate determination of a most extreme case, except on well-established grounds that the judge has in some way mistaken the facts or the legal principles to be applied or otherwise demonstrated error, which may be discernible only on the basis that the result is outside a reasonable range. 

In any event, Justice Gleeson concluded that in most cases, nothing will turn upon the different formulation of the principles of appellate review as with either approach, an appellate court can intervene if the judge misapprehends any relevant fact or acts upon a wrong principle of law. 

The critical difference is that, if the above test is not satisfied, under the "deferential standard" approach, the appellate court cannot interfere with the assessment unless it is satisfied that it is wholly erroneous. In other words, if the determination of non-economic loss is outside a reasonable range. 

Whereas, under the "correctness standard" approach, the Court can interfere with the assessment if it is satisfied that it is either wholly erroneous or that the judge has misapprehend any relevant fact or acted upon a wrong principle of law.

In the present case, Justices Gleeson and White agreed that whichever approach was adopted, the result was to be the same, as the appellant has not established error in the primary judge's assessment of non-economic loss. 

Future Earning Capacity Considered by the Court of Appeal

The appellant submitted that no award should be made in the absence of evidence as to what Ms Redding would have earned but for her accident. The Court of Appeal, however, considered that despite the absence of evidence as to the earnings of people in the occupation to which the plaintiff aspired, it was open for the primary judge to assess Ms Redding's damages "as best as he could". In this regard, the primary judge took into account Ms Redding's pre-accident ambition and drive, particularly her HSC results and sporting achievements which demonstrated she was far from average. The Court of Appeal determined that this was the correct approach. The appellant's challenge to the primary judge's assessment of future economic loss was dismissed. 

Out of Pocket Expenses 

The final challenge to quantum was an allowance of $25,000 for out of pocket expenses on the basis that there was no evidence from the respondent that she would consider switching to contact lenses. 

The primary judge gave consideration to the evidence of Dr Delaney as to Ms Redding being able to tolerate contact lenses if she chose. Given the uncertainty as to whether the use of contact lenses would be adopted, the primary judge deducted 50 per cent of the potential expenses of contact lenses. The Court of Appeal did not disturb the primary judge's finding.

On the basis of the above, the Court of Appeal dismissed the appeal. 

What should you consider when filing an appeal on quantum?

Careful consideration should be given when an unsuccessful party appeals a judgment on the basis of the primary judge's assessment of quantum, particularly with awards of non-economic loss. 

The approach adopted by Justices Gleeson and White re-affirms the Court of Appeal's general reluctance to alter a primary judge's assessment of quantum given the advantage that the primary judge has with hearing the evidence first hand. 

Unless the Court of Appeal is convinced that there was an error in the reasoning (or failure to give reasons) or if the degree of severity of non-economic loss was so far outside an appropriate assessment as to be indicative of error, the Court is unlikely to vary an assessment.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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