Recent Cases

Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96 (16 May 2023) (White JA, Griffiths AJA and Weinstein J)


NEGLIGENCE – Damages – Assessment of damages – Damages for non-economic loss – Where primary judge awarded sum for persistent pain and suffering in the period spanning infliction of injury and remedial surgeries, assessed at 25% of a most extreme case – Where applicant contends that primary judge failed to have regard to physical and emotional trauma of the injury itself and of potential corrective surgeries – Where primary judge’s reasons address trauma of injury and future potential surgeries – Whether primary judge’s award of damages for non-economic loss evinces error of the kind enumerated in House v The King (1936) 55 CLR 499 – no error established

NEGLIGENCE – Damages – Assessment of damages – Assessment of loss of earning capacity for injury negligently occasioned to young child – Where applicant suffered laceration of right eyelid at respondent’s store – Where laceration resulted in mild facial scarring and ptosis of applicant’s right eyelid – Where primary judge awarded sum for loss of earning capacity by way of buffer – Whether evidence adduced by applicant established that scarring or ptosis will, or may, be productive of financial loss – Whether buffer sum inadequately compensated applicant for loss of earning capacity – Whether respondent ought to be given leave to cross-appeal on the ground that applicant had not proven financial loss will, or may, occur on the balance of probabilities – Held that sum awarded by primary judge for loss of earning capacity was within reasonable range of potential awards