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

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96 Hearing dates: 14 April 2023 Decision date: 16 May 2023 Before: White JA at [1]; Griffiths AJA at [53]; Weinstein J at [54] Decision: (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. Catchwords: 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 Legislation Cited: Civil Liability Act 2002 (NSW), ss 13, 16 Cases Cited: Brown v Hewson [2015] NSWCA 393 Graham v Baker (1961) 106 CLR 340; [1961] HCA 48 House v The King (1936) 55 CLR 499; [1936] HCA 40 Husher v Husher (1999) 197 CLR 138; [1999] HCA 47 Loxton v New South Wales [2002] NSWCA 194; (2002) Aust Torts Reports 81-667 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 Penrith City Council v Parks [2004] NSWCA 201 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) Aust Torts Reports 81-949 Sellars v Adelaide Petroleum NL (1994) 197 CLR 332; [1994] HCA 4 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 White v Redding (2019) 99 NSWLR 605; [2019] NSWCA 152 Zreika v New South Wales [2009] NSWCA 99 Texts Cited: H Luntz & S Harder, Assessment of Damages for Personal Injury and Death, (5th Ed, 2021) LexisNexis Butterworths Category: Principal judgment Parties: Cecilia Si Chen (by her tutor Jill Huang) (Applicant) Kmart Australia Ltd (Respondent/Cross-Applicant) Representation: Counsel: R Sheldon SC with E Welsh (Applicant) S J Walsh (Respondent/Cross-Applicant)