HEADNOTE
[This headnote is not to be read as part of the judgment]
On 8 January 2020, the applicant, Miss Cecilia Si Chen, was injured while shopping with a family member at a store operated by the respondent, Kmart Australia Ltd ("Kmart"). That injury consisted of a laceration of Miss Chen's right eyelid, following collision with a clothing rack upon which Kmart's employees displayed children's clothing. Miss Chen thereafter underwent remedial ophthalmic surgeries; one on the day of the accident; the other some months later. Kmart did not dispute that Miss Chen's injury had been caused by the negligence of its employees.
At the time that she suffered her injury, Miss Chen was six years' old. By her tutor, Miss Chen commenced proceedings against Kmart in September 2021, claiming compensation under a number of particularised heads of damages. Those heads included, relevantly: damages for non-economic loss, resulting from the physical and emotional trauma occasioned by the injury and remedial surgeries; and damages for future economic loss in the form of loss of earning capacity, potentially resulting from her physical injury and possible psychology sequelae of the injury. Though Miss Chen did not suffer any impairment of her vision, the laceration of her eyelid left her with mild facial scarring and a slight droop in her right eye. Expert psychiatric evidence adduced at trial alternated on whether Miss Chen had developed an adjustment disorder or somatic symptom disorder consequent upon the injury.
The primary judge (Montgomery DCJ) awarded $59,929.36 to Miss Chen, the components of which included a sum of $45,825 for non-economic loss and a buffer sum of $5,000 for future economic loss in the form of loss of earning capacity. Each of those components was challenged by Miss Chen as being insufficient. Conversely, Kmart's position was that no sum should have been awarded for loss of earning capacity, in circumstances where the evidence did not establish, on the balance of probabilities, that Miss Chen would suffer a diminution in earning capacity attributable to the physical and psychological sequelae of her injury.
On Miss Chen's application for leave to appeal, and Kmart's application for leave to cross-appeal, the issues before the Court were:
(i) Whether the primary judge had failed to have regard to certain aspects of the physical and emotional trauma occasioned by the injury, including the shock and pain of the injury itself and the continuing discomfort in which Miss Chen was left while receiving remedial surgery, such that the award of damages for non-economic loss was too low;
(ii) Whether the primary judge had underestimated the potential impact of possible psychological sequelae to affect Miss Chen's future earning capacity, including by way of social inhibition and self-consciousness, such that the award of damages for future economic loss in the form of loss of earning capacity was too low; and
(iii) Whether the primary judge had awarded a sum for loss of earning capacity in the absence of proof on the balance of probabilities that Miss Chen had suffered a loss of earning capacity, and that loss of earning capacity would be productive of financial loss.
The Court (White JA, Griffiths AJA and Weinstein J agreeing), refusing leave to cross-appeal, and granting leave to appeal but dismissing the appeal with costs, held:
As to issue (i):
(1) Where a party seeks to challenge an award of damages for non-economic loss, determined in accordance with section 16 of the Civil Liability Act 2002 (NSW), it is incumbent upon that party to demonstrate an error of the kind enumerated in House v The King (1936) 55 CLR 499; [1936] HCA 40: [12] (White JA), [53] (Griffiths AJA), [54] (Weinstein J).
White v Redding (2019) 99 NSWLR 605; [2019] NSWCA 152, applied.
(2) As the primary judge had regard to the matters alleged to have been overlooked by the applicant, and factored those matters into the award for non-economic loss, no such error had been identified: [13]-[17] (White JA), [53] (Griffiths AJA), [54] (Weinstein J).
As to issue (ii):
(3) Assessing the loss of earning capacity caused by personal injury in the case of a very young child is an exercise in intuition, for which no reasoned explanation generally can be given as to why one figure, rather than another, has been selected as a fair reflection of the loss suffered. Here, the primary judge's assessment of the possibilities that might affect the applicant's earning capacity, including development of social inhibition and rejection from others in the workplace, based in part on the expert psychiatric evidence adduced by the applicant, must be understood with this in mind. Accordingly, while the buffer sum awarded was low, it was not so low as to fall outside the reasonable range open to the primary judge: [20]-[37], [42]-[51] (White JA), [53] (Griffiths AJA), [54] (Weinstein J).
New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133; Loxton v New South Wales [2002] NSWCA 194; (2002) Aust Torts Reports 81-667; Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) Aust Torts Reports 81-949, discussed.
Penrith City Council v Parks [2004] NSWCA 201, cited.
As to issue (iii):
(4) The applicant established that the negligent infliction of injury had reduced her earning capacity for some occupations. Damages for future economic loss in the form of loss of earning capacity may, concordantly with section 13 of the Civil Liability Act 2002 (NSW), be awarded where a claimant establishes that the injury suffered will or may be productive of financial loss, having regard to the possibilities of loss eventuating: [38]-[41] (White JA), [53] (Griffiths AJA), [54] (Weinstein J).
Sellars v Adelaide Petroleum NL (1994) 197 CLR 332; [1994] HCA 4; Graham v Baker (1961) 106 CLR 340; [1961] HCA 48; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20; Husher v Husher (1999) 197 CLR 138; [1999] HCA 47; Brown v Hewson [2015] NSWCA 393, referred to.