The art of assessing future quantum in personal injury cases - an appellate review

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:

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