Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96 | Case summary

JUDGMENT

WHITE JA: This is a Summons for leave to appeal and for leave to cross-appeal from an award of damages to a young child for personal injury (Cecilia Si Chen v Kmart Australia Limited [2022] NSWDC 519 (Montgomery DCJ)).
The applicant was the plaintiff below. She suffered her injury on 8 January 2020. She had then just turned six years old. She was eight at the time of trial. The injury occurred when the applicant ran into a clothing rack at a Kmart store in Chatswood. She suffered a severe injury to her right eyelid. It was almost torn off. The hospital record on her admission records that her eyelid was hanging by a small piece of skin on the outermost side of her eye. Her eyelid was expertly repaired and she was left with what one doctor (Dr Michael Delaney, ophthalmic surgeon) described as a "very mild impairment due to the small amount of ptosis and the very small scar on the right eyelid". She did not suffer any ongoing damage to her vision. (Ptosis refers to a droopy eye.)
Liability was admitted.
The primary judge found that between two operations (the first being on the evening of the injury on 8 January 2020 and the second on 15 June 2020 when a stent was removed) the plaintiff was at home in pain and taking pain killers (at [6]).
The primary judge described the scarring as follows: "[19] I quote the following description of the scarring from Dr McGlynn's first report, which is in precise medical terms; but as I understand it, entirely consistent with my own observation made within the courtroom: 'On the right upper eyelid immediately above the eyelash line there were two horizontal scars separated by 5 mm. They extended from the inner canthus to 2/3 of the way across the eyelid toward the lateral canthus. There was a third scar oblique in the mid-upper lid reaching the inner canthus, 15 mm x 2 mm. The two upper scars were visible when the eye was open; all three scars were visible when the eye was closed. With the eye open, the upper eyelid fold was level with the eyelashes covering the lower transverse scar. The scarring had mixed hyper and hypo pigmentation causing noticeable colour contrast, was indented, with no visible stitch marks.' [20] Nothing in the report of Dr Delaney, ophthalmic surgeon, is inconsistent with the description of the ongoing impairment, given by Dr McGlynn. Should there be inconsistency, I prefer the specialist opinion of Dr McGlynn as a cosmetic [scil. plastic] surgeon, over that of Dr Delaney, he being an ophthalmic surgeon. [21] At the time of the hearing, two and three-quarter years after injury and 1 1/3 years after Dr McGlynn's consultation with the plaintiff, I did not notice any obvious discolouration, if that be what the doctor meant by 'pigmentation'. I easily observed what one commonly sees of a clean scar line. The scar line or lines were lighter in colour than the surrounding skin. I assume that is a lay expression of what Dr McGlynn described in medical terms. [22] My examination of the plaintiff's face and eyes occurred in an informal setting around a coffee table near the courtroom public gallery, I did so without speaking of her eye at all. The well lit courtroom environment provided an excellent opportunity to observe her scarring. My observation was that when her eye was open I could easily see on her upper lid a scar of length of less than a centimetre above the corner of her eye, proximal to her nose. In lay terms it was a fine line, observably paler than the surrounding skin but not otherwise discoloured. When her eyelid was down-her eye closed as she blinked-there was longer scarring extending from the corner of her eye, proximal to her nose for about 80% of the width of her upper eyelid. I saw no swelling or other abnormality than what I have described as 'paler' scar lines. [23] Our faces were more than 1 m apart. Whilst I would describe the scarring as, in layperson's terms, 'hairline', it was easily observable to a person at that distance. Whilst I did not perform the test of moving away because I did not want to alert the plaintiff to my focus on her scarring; I am sure that the scarring would be visible to a person engaged with the plaintiff, such as in conversation with her, from a distance of comfortably more than 1 m. Her scarring is readily visible to any person at normal social communication distance. [24] In Dr McGlynn's opinion, the permanent visible scarring, which causes facial disfigurement, does not affect the plaintiff's capacity for study or work. Importantly, he assessed her prognosis as 'fair'. He explained that qualification of prognosis as resting on the risk that the plaintiff might become more conscious of her appearance during her teenage years and become significantly concerned about the scarring. He thought it unlikely that the scarring would deteriorate."
The plaintiff's mother gave evidence as to how the injury had affected the plaintiff's behaviour and demeanour. The primary judge accepted the plaintiff's mother's evidence. His Honour summarised her observations as follows: "[27] In her frank evidence, which to my observation displayed no exaggeration, the plaintiff's mother described the plaintiff as having changed in ways which are of concern to her. As was apparent from his reports and his oral evidence, Dr Lee also considered such changes of behaviour and demeanour to be significant in the consideration of the plaintiff's present and future needs for psychological treatment. Those observations include: (1) the need to sleep with her mother and to be settled from both laughing and crying before sleep by her mother ongoing at age 8 ½, when the parental plan pre-injury had been that she sleeps independently from achieving age 6 years; (2) a refusal to continue with sports which risked contact including soccer and basketball (the plaintiff continues to play table tennis only); (3) teachers telephoning the plaintiff's mother recommending speech therapy because of the plaintiff's reluctance to answer questions; (4) sometimes, when looking in a mirror, the plaintiff tells her mother that she can see her scar; (5) the plaintiff refuses to talk about her accident; (6) a loss of confidence, in that whereas school reports describe the plaintiff's ongoing positive development, including in terms of class participation, teachers communicated with the plaintiff's mother about the need to encourage the plaintiff to respond to questions and about the mechanisms they have over time put in place to encourage that; (7) an increase in anxiousness, in that her mother described the plaintiff as 'quiet' which, in her evidence meant all of the above factors and an underlying increase in worrying and focus on self-imperfections such that whilst her schoolwork is not affected, the plaintiff definitely feels less happy because of a sort of stress when compared with her prior to her injury."
A psychiatrist, Dr Lee, gave evidence which the primary judge summarised as follows: "[38] In court, Dr Lee was careful to explain that whether or not the plaintiff satisfies the diagnosis of Adjustment Disorder pursuant to DSM V (Revision) is not determinative of whether or not psychological treatment is reasonably required. Both during his oral evidence in chief and in cross examination he was asked whether or not that formal diagnosis is currently satisfied on the balance of probabilities and of the chance that the plaintiff will meet that diagnosis in the future. Dr Lee understood that assessment of the future, for the purposes of this hearing, involved assessment of possibilities. I listened to his evidence carefully and understood his conclusions to be: (1) presently he is 'grappling' with whether or not the plaintiff's presentation satisfies the formal diagnosis of Adjustment Disorder, but her presentation outside the courtroom was 'very distressed'; (2) if future surgery were to improve the scarring during teenage [sic], it might possibly improve the plaintiff's psychological adjustment but would probably not achieve resolution and it is outside of Dr Lee's specialist knowledge to assess what degree of cosmetic resolution or improvement would be achieved by surgery; (3) even if one puts aside the scarring as others with whom she engages might do, it remains the plaintiff's subjective perception which will determine her psychological affectation because of it; (4) the plaintiff has a vulnerability to be taken into account and if the photographic evidence of the scarring is not accepted as valid [comment: neither party suggested that it was not], then there is a significant possibility that the plaintiff will present under pressure of her appearance and relationships at around adolescence and early adulthood for psychological treatment; (5) that the disfigurement is to the plaintiff's eye and face is a significant consideration when assessing the psychological affectation of her scarring upon her subjectively and in life; (6) Dr Lee's assessment, that the plaintiff is anxious and avoiding things that it would be normal for her as a child to do are classic indicators of her suffering an Adjustment Disorder."
Notwithstanding the finding at [38(4)] quoted above, his Honour found that the effect of Dr Lee's evidence was that there is a significant possibility that the plaintiff will present for psychological counselling in adolescence to early adulthood as a result of the residual scarring to her right eyelid (at [41]). The photographic evidence of the scarring suggests that her right eyelid has a slight but visible scar and a slight droop.
The primary judge accepted the plaintiff's mother's evidence that the plaintiff, before her injury, displayed a self-focus on her appearance and she has become more stressed after her injury. His Honour said: "[44] …Her behaviours of reticence in participating in responding with other people, dislike of looking at herself in the mirror, dislike of speaking with or engaging with people if she is concerned that they are watching her, avoidance of contact sports for fear of being bumped, are categories which I understood to fall within the expression 'quiet' as it was used by her mother during evidence… [45] On the whole of the evidence, particularly the evidence of the medico-legal reporting cosmetic surgeon Dr McGlynn and of the medico-legal reporting psychiatrist Dr Lee, as the plaintiff finds, in her trajectory and development of identity particularly from puberty through to early adulthood, there is some possibility that she will seek further surgical improvement, and significant possibility that she will seek psychological assistance. As I understood the evidence of Dr Lee, that possibility of psychological treatment between puberty and early adulthood, would not necessarily be relieved if she underwent psychological treatment now. [46] At her present age of 8 ½ years, the course of her life cannot be predicted. The Court must do the best that it can with the evidence available at this hearing. The plaintiff has taken the forensic decision to seek a once and for all award of damages now. [47] Dr Lee's observation that scarring to the face is, in psychology, recognisable as prone to cause psychological issues including with confidence as persons move through puberty into early adulthood, meets with worldly experience and common sense. It is the fact that whenever the plaintiff speaks with anyone now and into the future, they will observe the scarring to her eye. I accept her mother's evidence that it is more obvious on some days and particularly when she is tired. I accept her mother's evidence that she is able to observe, particularly on those occasions, that the right eye lid is noticeably lower than the left eye upper lid when the plaintiff's eyes are open. [48] In my opinion, that the plaintiff subjectively and objectively suffers a continuing and significant deprivation of the opportunity to participate in normal activities, including during conversation with people, meeting new people, attending job interviews and so on, and thus to enjoy life to the full and to take full advantage of the opportunities that it might otherwise offer, is readily established on the evidence."
The primary judge assessed damages in the sum of $59,929.36. That sum included $929.36 for agreed past out of pocket expenses, and $8,000 for future medical treatment anticipated to be in the nature of elective plastic surgery to reduce the extent of the plaintiff's ptosis and cognitive behavioural therapy (at [58] and [59]-[61]). The appeal raises no issues about the allowance of those sums.

Loss of Earning Capacity - Future Economic Loss

The other component of damages that is the subject of challenge was the primary judge's award of $5,000 as a buffer sum for loss of future earning capacity. The applicant challenges this as too low. The respondent sought leave to cross-appeal. In its written summary of argument, the respondent contended that the primary judge erred in allowing any sum for loss of earning capacity because the evidence did not establish that it was "likely" (meaning more probable than not) that the plaintiff would suffer any economic loss as a result of the scarring to or drooping of her right eye.
At the time of trial, the plaintiff was eight and a half years old. The primary judge observed that there was no evidence of ambition or otherwise of a choice of a career path that she might follow (at [53]).
In dealing with the claim for damages for future economic loss, the primary judge said: "[54] My impression of the plaintiff, from our short discussion in the Court Room, that she was a delightful 8 year old female child, on all the evidence, with the benefit of a well nurturing family, is evidence against the prospect of deprived childhood and educational opportunities at this young age. Indeed, that she attends an excellent school is direct evidence of such opportunity; however year 1 is a very early launch pad from which to project considerations of what her future earning capacity might have been but for the injury and particularly whether her career choice would have been one in which scarring to her right eye would be of great or minimal disadvantage to her. Is she to be a model or beautician or an academic or follow a profession for instance? In any calling, she will be required to engage with people and self-consciousness of scarring to her right eye is likely to be to some degree a disadvantage to her. But for her injury, there is no basis to discount the probability that the plaintiff's future circumstances would have been of average weekly earnings, a basis proposed by her Counsel. [55] The plaintiff claims damages by way of a buffer or cushion. In closing submissions, Counsel for the plaintiff proposed as a guide to consideration of buffer; that the plaintiff would enter the workforce in 10 years, on average weekly earnings (presently $1,790.00 gross per week) and a calculation of diminution of earning capacity on the basis of $200 per week for her working lifetime of 50 years, after applying the multipliers for her working life commencing after 10 years and discounting for 15%, a figure of $101,895 is arrived at. In the defendant's schedule of damages (MFI #8) the defendant proposed nil damages for future loss of earning capacity. [56] The plaintiff's subjective self-view must be included in assessment of her residual capacity to compete in the work place for employment. In my view, the plaintiff's loss of capacity to earn in a manner productive of financial loss is modest. Whilst I have assessed her non-economic loss at a significant percentage of a most extreme case, the palette of choices of employment likely to be available to the plaintiff but for her injury and, adjustment to that palette because of the disadvantage in the market place due to her scarring, does not, on the evidence available, permit more than an impressionistic and evaluative assessment of production of financial loss. As was said in the Moss Case [New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133], with which the Court in the White Case [White v Redding] (see Macfarlan JA at [38] and [42]) on such slender material as is available on the evidence in this case for the making of the assessment under section 13, that assessment involves 'guess work' rather than estimation. In my opinion, to some extent, the plaintiff's capacity to earn income in the future, has unquestionably been reduced to some extent. [57] Accordingly, I would assess that but for the injury the plaintiff's likely future circumstances would have comfortably been to earn average weekly earnings in some form of employment. Not only is this because she has to this point in her life enjoyed good education and family nurturing but she is the daughter of working parents. There are no negatives in her pre-injury life environment as to her then future earning prospects. Doing the best I can as to her most likely future circumstances, on a buffer or cushion basis according to the approach explained in Penrith City Counsel [sic] v Parks [2004] NSWCA 201 [(McClellan AJA at [58])] and on the basis that the possibilities of some limitation of career choices due to her scarred appearance, some degree of inhabitation [sic] or diminished self esteem affecting her competitiveness during job interviews or when dealing with customers and some slight chance of rejection or disapproval by others in the workplace on account of her scarring, I allow a lump sum of $5,000."
The applicant's school reports up to the date of trial show a level of academic achievement described as "beyond expectations" (being the second highest of five levels) in most subjects and a creator of impressive works of art.
As Mr Walsh for the respondent submitted, the major issue at trial concerned the potential for the applicant to suffer psychological consequences from her injury as she grew older.
Dr Lee provided four reports in relation to the psychological sequelae of the injury. He also gave oral evidence that, because of the COVID pandemic, he did not have the opportunity of talking to the applicant face to face, but assessed her by video conference and had regard to photographs and videos provided to him of the plaintiff's injury. He also had regard to information provided to him by the applicant's mother.
In his first report of 26 April 2022, Dr Lee reported that, on examination, the applicant: "…was a pleasant young girl who did not present as anxious, or depressed. Her speech was logical and sequential and she told me that she is a little worried about her future, but can generally distract herself. She did not report significant sleep difficulties like her mother did and her mother explained that this may be because she is unaware of these problems. On overall presentation, there was no current evidence of a clinically significant psychiatric disorder apart from the report of possible functional abdominal pain, but she seems a little worried about what might happen to her in the future, and I have to express concern about the reported sleep problems."
Dr Lee opined that the applicant suffered from an adjustment disorder with sleep disturbance and possible functional abdominal pain (if an organic cause for her gastrointestinal pain were excluded) or knee pain (noting that she did not currently complain of knee pain). He opined that the applicant may have been slightly insecure before the accident, given her inability to sleep alone and her self-confidence and social skills had been slightly more affected by injuries sustained from the accident. He opined that the applicant may become more self-conscious as she deals with the issues of puberty due to her residual scar and if she were to become self-conscious in the future she would require cognitive behavioural therapy.
An organic cause for the applicant's abdominal pain was not excluded. She suffered a pre-existing helicobacter pylori infection. The applicant's particulars of injuries due to the accident included an aggravation of pre-existing gastrointestinal tract symptoms, but the primary judge made no such finding, and it was not a ground of appeal that his Honour should have so found.
In his second report of 26 September 2022, Dr Lee observed that he had diagnosed an adjustment disorder on the basis of the applicant's mother's report of the applicant's sleep disturbance, and feeling tired and having stomach pain, which could have been anxiety related. She had missed ten days of school because of abdominal pain and her teacher was very supportive. Dr Lee observed that he considered these complaints could have been clinically significant and therefore justified a diagnosis. He continued: "Against this diagnosis, [the applicant] said that she enjoyed school, was a little worried, but could stop herself from worrying, and reported no problems with sleep. Her mother also considered her to be overall confident, and did not consider that she needed counselling. She did not present as distressed, anxious or depressed. Her school records are somewhat inconsistent with clinically significant distress. On the balance of probabilities, despite her mother's report, [the applicant] does not suffer from a diagnosable psychiatric disorder as a result of the accident, as [the applicant] did not report sleep disturbance, her presentation was inconsistent with a disorder and her school records are inconsistent with clinically significant distress."
Dr Lee was asked to provide a third report following his receipt of Dr McGlynn's report of 6 June 2022. He concluded: "On the balance of probabilities, having weighed up all available sources of information, despite her mother's report of sleep and abdominal disturbance, and the presence of scarring, [the applicant] does not suffer from a diagnosable psychiatric disorder as a result of the accident, as [the applicant] did not report sleep or abdominal disturbance, her presentation was inconsistent with a psychiatric disorder, her school records are inconsistent with clinically significant distress and her mother considered she was overall confident and did not require treatment. It appears that the reported symptoms are subclinical."
In his fourth report of 17 October 2022, Dr Lee was asked to assume that it was highly unlikely that the complaint of abdominal pain was due to H-pylori bacterial infection. It was common ground that this was not an accurate assumption. Although a report of 15 July 2021 returned a negative result, a subsequent test performed on 11 September 2021 was consistent with current helicobacter pylori infection.
In reliance on that assumption, Dr Lee opined that the increased frequency of abdominal pain after the accident was an expression of distress, as an organic cause was highly unlikely. He said that the applicant: "…has not reported traumatic symptoms such as nightmares or intrusive memories of the accident, but her records reveal significantly increased pain complaints consistent with the somatic expression of distress, and difficulty verbalizing her feelings in order to cope with them. This difficulty expressing feelings is likely to have negative consequences in her ability to cope with the complexities of life as she grows older."
In response to a request that he identify probable and possible psychological or psychiatric disturbances which could affect the applicant as she ages, Dr Lee also opined: "5. As a result of the clearly observable altered appearance of her eye, I consider that there is a likelihood of psychological disturbance as she develops both physically and psychologically. 6. The aesthetic change, which is easily visible and likely difficult to hide from view, is quite likely to result in a negative self image. Being easily identifiable as different is likely to [be] intimidating and isolating as she grows older. It is likely to result in loss of self confidence and some degree of social, intimate and vocational impairment as there are few areas of life in which self confidence is not required. 7. Children with visible scarring struggle more socially than those without. 8. Perhaps the most psychologically significant location for a scar is around the eyes. The difference is clearly visible on the photographs and video, difficult to hide from view and diminished perceived attractiveness could affect the quality of her relationships. 9. Facial expression has a crucial function in communication, and difficulty making eye contact can cause a decline in social skills. She might perceive or misperceive others as focussing on her being abnormal, avoid eye contact and thereby reinforce a sense of shame. Facial scanning contributes to negative self-image, reduces self confidence and participation in social activities due to embarrassment and low self-esteem, especially in adolescence which can be a critical stage in the development of a secure identity and social competence. Avoidance of situations can lead to loss of confidence and resilience. Attempts to cope with distress can lead to emotional numbing. She may suppress her emotions, to avoid drawing attention to herself, making her less attractive to others especially as she enters puberty and has to deal with more intimate situations requiring more face to face interactions. 10. Avoidance can also cause difficulties with studies and work, where classmates and colleagues could consider her withdrawn, ashamed, shy, unfriendly or even untrustworthy. 11. She may experience intrusive questions, stares and/or avoidance which can make them acutely aware of feeling abnormal, and condition her to anticipate negative reactions which can exacerbate her difficulty. She may adopt behaviours of preemptive avoidance. 12. Perceived lack of sympathy from family and friends could to lead her to minimise her feelings, but expression of concern could evoke guilt for causing unnecessary distress to her loved ones. An impossible dilemma ensues. 13. As even facial asymmetry can be registered as unattractive and suboptimal, interpersonal rejection and negative effects on relationships may occur. 14. There can be difficulty initiating new relationships due to the awkwardness of answering questions and recalling memories, which can interfere with her pursuit of intimacy and love. 15. Scars can cause a permanent identity change requiring a new adjustment to her outward persona and inner self-image. The mismatch between appearance and identity can trigger feelings of anxiety, shame and depression, which can be experienced as traumatic and can trigger a cascade of self rejection and self consciousness. 16. She may become internally fixated on her appearance, while also taking pains to hide it, and avoid mirrors, or conversely become obsessed with her reflection. 17. It is her subjective experience and perceived severity of her scarring rather than objective clinical severity that will predict the level of distress as she negotiates the developmental pathways of adolescence and adulthood. Heightened awareness of scars can manifest as anger, anxiety and frustration. 18. Scarring can cause avoidance of eye contact, closed body language and shutting down conversations. 19. Depression and anxiety is common and may also translate into maladaptive self soothing behaviour, such as the use of alcohol, and significantly decreased satisfaction with life. 20. There can be strong desires to be alone and avoid activities where she can be observed. 21. Therefore, in my opinion, there is a significant probability of psychological disturbance, which is increasingly likely to affect her as she grows older."
Dr Lee gave oral evidence. Before his evidence commenced, arrangements were made for him to see and talk to the applicant outside the court. He reported on that interview: "A. …I did not look specifically at the scarring this time. I mean, I - I guess I could, but I'd already - I should - I suppose I should say this, that what struck me was the body language. She was clinging to the mother, would not talk to me, and really reluctantly engaged with me as though she was very self-conscious, and painfully so, so I - I suppose I didn't - I purposely did not want to draw attention to her scar by looking in a concerted way at it. So, the body language was very closed off, she was clinging to her mother. In fact, she told me that she only wanted to talk about things with her mother, doesn't want to talk with anyone else when I raised the possibility of her getting counselling or seeing a - you know, seeing a psychologist or somebody for treatments. The other thing she said was it - that she avoids looking at her reflection in the mirror because it's painful, I think she said. She finds it painful to look at herself, and she avoids looking at herself, and she quite strongly said that. That's the gist of it."
He was asked whether he remained of the opinion that, on the balance of probabilities, the applicant did not suffer from a diagnosable psychiatric condition. He said: "A. I should - I - I guess apologise for the fact that psychiatry is not an exact science and, in - in thinking about how to phrase my opinion about the diagnosis, I struggled with the boundaries of what an adjustment disorder is as opposed to an understandable reaction to a distressing scar and set of circumstances. So, based on the fact that the mother had said she - she probably didn't need counselling and based on the relatively positive school records, as you will have read, I formed that opinion that she probably did not reach the threshold for an adjustment disorder. Having seen her today and allowing for the fact that, of course, it's stressful coming to court for a young girl and having attention focused on her, she nonetheless does appear very distressed with the clinging and the intense avoidance of being spoken to by - by myself. I'm - I'm - I'm - I'm kind of more inclined to think that she could be diagnosable, given the functional - what - given the complaints - the gastrointestinal complaints and the chest pain complaints. So, I'm - I'm still, to be honest, grappling with that issue of - of her diagnosis or whether she meets the threshold for a diagnosis. And as I previously - as I said in my last report, it's quite common for people of Chinese descent to somatise. To - to - to present with physical symptoms rather than complain about distress. So, bearing that in mind, I'm - I mean, I'm struggling with that issue about diagnosis."
It is hard to identify to what extent Dr Lee's opinions as to the applicant's future likely or possible psychological disturbance arising from the accident were influenced by his assumption that her complaint of gastrointestinal pain was a functional pain syndrome. Dr Lee accepted that, on the assumption that the breath test for helicobacter pylori was positive in September 2021, and she was receiving treatment for that condition, that it was more likely that her pain was organic and not functional. But that concession did not appear to affect his other opinions.
Dr Lee accepted that if the applicant suffered emotional disturbance when she was older due to her scar, but that was successfully treated by surgery, it would be less likely that she would suffer any further psychiatric disturbances.
Prior to Dr Lee speaking with the applicant, the primary judge had also spoken with her in the well of the court. He had disrobed for that purpose and was in his shirt sleeves. The primary judge described that discussion as follows: "[42] …Quite obviously attending the John Maddison Tower and the courtroom for a few minutes to speak to me, was an out of the ordinary environment for the plaintiff. I assume that she was aware that her attendance was in regard to her scarring. When speaking to me she said that the courtroom was 'nice' and 'not a scary' room but that she did not like a lot of people watching her. We spoke about her pet cat. Whilst allowance for the environment should be made when considering Dr Lee's oral evidence of his impression of her during their discussion; in my opinion, the plaintiff was not scared. We had achieved between us a relaxed and enjoyable conversation during which she smiled. This was just prior to the specialist psychiatrist, Dr Lee meeting with her. I do not accept that his assessment of her in that meeting is to be significantly discounted by the effect upon her, if any, of the surrounding environment."
The respondent does not challenge the primary judge's finding at [56] that, to some extent, the applicant's capacity to earn income in the future has unquestionably been reduced. That finding must be put in context. Because of the hairline scarring and the slight droop of the right eye, it may readily be accepted that the plaintiff would have difficulty in earning money as a model, or perhaps as an actress (at least in television commercials). She may have greater difficulty in obtaining employment as a receptionist or a shop assistant or in like positions where she must deal with the public, if her prospective employer noticed or was concerned by the slight injury to her eye than if she had not been injured. If the psychological sequelae identified by Dr Lee persisted, her prospects of employment might be affected by loss of self-confidence, and avoidance of personal contact, as the primary judge referred to at [48] quoted at [9] above.
Although it is accepted that there has been an impairment of the applicant's earning capacity, that impairment is only compensable in damages to the extent that it is, or "may be", productive of financial loss (Graham v Baker (1961) 106 CLR 340 at 347; [1961] HCA 48; Husher v Husher (1999) 197 CLR 138; [1999] HCA 47). As an eight and a half year old girl at the time of trial, the applicant had no current earning capacity. Her earning capacity lies in the future, perhaps from the time she is in the middle years of high school, where she might obtain employment during school holidays or even, possibly, after school. (The last possibility is a remote prospect unless her physical circumstances change, because she lives in Chatswood and attends school in Rose Bay (K - 12), which involves significant travel.)
In support of its proposed cross-appeal, the respondent submitted that, before compensation for loss of earning capacity could be awarded, the applicant must establish on the balance of probabilities that she has suffered some loss of earning capacity (citing Brown v Hewson [2015] NSWCA 393 at [84] per Sackville AJA and Husher v Husher at [7]).
At trial, the respondent submitted that, before any damages could be awarded for the loss of earning capacity, the applicant had to satisfy the Court both that she had a reduced capacity to work, and that that reduced capacity would be productive of financial loss before a buffer could be awarded (citing Zreika v New South Wales [2009] NSWCA 99 at [39]). At trial, counsel submitted that, unlike the plaintiff in New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133, the applicant had not sought to adduce evidence about vocations she would have been likely to achieve but for the accident; there was no expert evidence from a child vocational psychologist or educator about the vocational path she might have taken but for the accident; and the claim did not rise above the level of speculation.
However, as indicated at [38], it is clear that the injury has, to some extent, reduced the applicant's earning capacity in some occupations. The causal link between the negligent infliction of injury and the loss of some earning capacity is established on the balance of probability (Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 355; [1994] HCA 4). Whether the injury will or may be productive of financial loss is to be determined having regard to the possibilities (Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 642-3; [1990] HCA 20; New South Wales v Moss at [87]). In Husher v Husher, the plurality said (at [7]) that it is necessary to identify what economic consequences will "probably" flow from the loss of earning capacity. Their Honours did not indicate any intention to depart from Malec v JC Hutton Pty Ltd. I infer they were using "probably" in the sense in which the plurality in Malec v JC Hutton Pty Ltd at 343 referred to probabilities as encompassing very high to very low probabilities.
Section 13 of the Civil Liability Act 2002 provides: "13 Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."
In s 13, the reference to what is "most likely" is a reference to the most likely of possibilities and not a reference to probabilities. In this case, the primary judge observed that the plaintiff proposed that the plaintiff's most likely future circumstances would have been of earning average weekly earnings (at [54] quoted above at [20]). That approach was not challenged.
There was no dispute that an award of future economic loss could be made by way of a "buffer" (Penrith City Council v Parks [2004] NSWCA 201 at [5], [10], [58]).
Mr Sheldon submitted that the award of $5,000 represented less than half of 1% of net average weekly earnings projected over a 50 year working life after deductions for vicissitudes at 15%. The respondent did not challenge the arithmetic. Mr Sheldon submitted that the potential for the applicant's earning capacity to be diminished by reason of a psychological disorder was significant. In [48] of the primary judge's reasons quoted at [9] above, his Honour found that the applicant suffers a continuing and significant deprivation of the opportunity to participate in normal activities, including during conversation with people, meeting new people, attending job interviews and so on. It was Dr Lee's opinion that there was a likelihood of psychological disturbance as the applicant grew older (see [31] above). Mr Sheldon submitted that the buffer of $5,000 awarded by the primary judge failed to have regard to the real chance that such psychological disturbances would affect the applicant's earning capacity, over and above the physical effects of the scarring and the droop in her right eye.
The respondent submitted that, although at first sight the award of $5,000 as damages for future economic loss may appear to be low, it was not outside an allowable range, having regard to the multiplicative possibilities that diminished the chance that the applicant would suffer any financial loss in the future because of her injury, including from the psychological effects of the injury. In his report of 26 April 2022, Dr Lee's opined that the applicant was coping reasonably well at school academically with support from her teachers. Dr Delaney had opined that the small degree of ptosis will gradually improve and was only just detectable cosmetically. Dr Lee stated on 26 September 2022 that the applicant's mother considered her to be overall confident and did not present as distressed, anxious or depressed, and that her school records were "somewhat inconsistent" with clinically significant distress. Part of the distress that she reported was due to abdominal pain that was not caused by her injury. It was only if the applicant suffered a deterioration in her psychological state, and if psychological treatment were unsuccessful, and if her ptosis did not improve with time, and if revision surgery were unsuccessful, and if the psychological disturbance were productive of loss, that there would be any loss of future earning capacity.
These are not necessarily multiplicative possibilities. The residual physical effects of the injury could have an effect on her earning capacity independently of any continuing psychological disturbances. But it must be accepted that, if either the residual physical effects of her injury or continuing psychological disturbances would otherwise affect her earning capacity so as to be productive of financial loss, the chance of such loss would be ameliorated by the prospect of successful surgery and/or psychological treatment. No mathematical calculation of those chances is possible.
The applicant submitted that an appropriate buffer would be $100,000 rather than the $5,000 allowed by the primary judge. The respondent submitted that this figure equated to 9.2% of a working lifetime's average earnings but was no more meaningful or based on evidence than the buffer the primary judge awarded of $5,000 (0.4%). The respondent noted that no evidence had been led as to the occupations, attitude to life and work history of the applicant's parents and other relatives (New South Wales v Moss at [84]). There was evidence that the applicant's mother conducted her own business and it is clear from the fact that the applicant was sent to a prominent private school in Rose Bay, a considerable distance from where she lived, that her parents were at least reasonably financially successful and ambitious for their daughter's future. As Heydon JA said in New South Wales v Moss (at [93]), the obligation to value the chance of future lost earnings cannot be shirked by deficiencies in the materials advanced. In any event, I doubt that any further evidence as to the applicant's parents' occupations would have advanced the case to any appreciable extent.
It was extraordinarily difficult, one might say impossible, to estimate what future earnings the applicant would have derived had she not been injured, or how her injury may have affected those earnings (Harold Luntz & Sirko Harder, Assessment of Damages for Personal Injury and Death (5th Ed, 2021, LexisNexis Butterworths) at [6.3.4]). In Loxton v New South Wales [2002] NSWCA 194; (2002) Aust Torts Reports 81-667, the plaintiff was injured at school when a human pyramid of which she was a part collapsed, causing injury to her lower spinal cord. This rendered her incontinent, unable to sleep properly, and gave her a slight gait that was the cause of some embarrassment. She recovered damages, which included a component of $40,000 for reduced earning capacity (at [2]). The plaintiff was 11 at the time of the injury and 16 at the time of the hearing. She had a life expectancy in the order of 60 years (at [37]). Sheller JA, with whose reasons Campbell AJA agreed, said: "[41] It is no doubt correct to say that, in reflecting in damages the myriad of possibilities that would have directed the appellant's life if she had not been injured and that might now direct it in consequence of her disabilities, there is an element which is more guess work than estimation. In Jones v Schiffmann (1971) 124 CLR 303 at 308 Menzies J noted that in Chaplin v Hicks [1911] 2 KB 786, where the jury awarded the plaintiff £100 damages for the loss of a chance to win a prize, the Court of Appeal, in refusing to disturb this verdict, said that, had the jury chosen to award 1 shilling, that verdict would not have been disturbed either. This both demonstrates that the exercise is imprecise and indeterminate and also that the parameters are wide. It is no easy task for an appellant to challenge the award at first instance of such damages as insufficient. In Foster v Tyne and Wear County Council [1986] 1 All ER 567 at 570 Lloyd LJ said: 'The very fact that the approach must necessarily be so speculative means, of course, that the occasions on which this court will feel justified in interfering with a judge's assessment will be few and far between, for there is no established range or standard against which to measure the judge's award.' [42] As Professor Luntz says in Assessment for Damages for Personal Injury and Death, 4th ed (2002) at 5.3.4, when speaking of young children, 'it is in fact impossible to make an accurate individual assessment, since it can never be known what the future would have held for this plaintiff but for the injury.' … [46] The trial Judge awarded $40,000 for future economic loss. He was faced with an appellant who was unable to give evidence of any particular plans for her future. To my mind the uncertainties of the future are such that while I am of opinion that a larger award would not have been beyond the range I am not persuaded that the amount awarded was below the range available to the trial Judge. Accordingly, I would not interfere with that award."
In Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) Aust Torts Reports 81-949, McColl JA, with whom Mason P and Beazley JA agreed, said: "[82] The setting aside of an award of damages in a trial where there is neither a challenge to the findings of fact made by the trial judge nor any demonstrated misconception of the evidence, should be a most unusual event, to occur only in circumstances where the disproportion between injury and award of damages is so great as to make the award quite unreasonable: Wilson v Peisley (1975) 50 ALJR 207 (at 209) per Barwick CJ; see also Moran v McMahon (1985) 3 NSWLR 700; The Owners - Strata Plan 156 v Gray [2004] NSWCA 304 at [41] per Sheller JA, Gzell J agreeing. Requiring this level of error before appellate intervention is warranted reflects the fact that the task of assessing damages for lost earning capacity is "necessarily impressionistic": Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388 (at [49]) per Mason P (Spigelman CJ and Priestley JA agreeing)."
The primary judge did not focus only on the physical effects of the applicant's injury in assessing her likely future economic loss (at [48]). He acknowledged (at [57]) the possibility of "some limitation of career choices" due to some degree of inhibition or diminished self esteem. He assessed the chance of rejection or disapproval by others in the workforce on account of her scarring as being only slight (at [57]). Neither the primary judge's assessment nor any alternative figure is capable of reasoned explanation as to why that figure, or some other figure, should be adopted. It is a matter of intuition. No error of reasoning on the part of the primary judge is demonstrated. Being a matter of intuition, or guesswork, the scope for appellate intervention is limited. I do not consider that the judge's award of $5,000 for future economic loss, low though it is, is outside a reasonable range so as to connote error.
For these reasons, I would make the following orders: 1. Refuse the respondent's application for leave to cross-appeal with costs; 2. Grant the applicant leave to appeal from the orders of the District Court of 28 October 2022; 3. Dismiss the appeal with costs.
GRIFFITHS AJA: I agree with White JA.
WEINSTEIN J: I agree with White JA.

Chen by her tutor Huang v Kmart Australia Ltd

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