The recent NSW Court of Appeal case of White v Redding [2019] NSWCA 152 is a useful example of the process the Court undertakes in calculating compensation for a victim of someone else’s negligence. It also highlights how a simple negligent act can lead to devastating consequences for the injured victim.
The Facts
On 12 January 2014 Ms Newbie Redding, 16 years old, suffered an injury to her left eye when she was hit by a tennis ball. The tennis ball was struck by Mr White (the appellant) whilst he was playing an informal game of cricket in the Function Room at the Manly Lifesaving Club. Sadly, the injury resulted in the loss of 97% of the vision of Ms Redding’s left eye.
Ms Redding was a talented athlete participating at the highest levels of gymnastics, competing at National tournaments and aiming to compete at the 2016 Olympics. Ms Redding’s accomplishments were not only athletic but also academic evidenced by her HSC ATAR result of 97.25. She had high aspirations.
Following the incident, Ms Redding’s loss of sight made life much more challenging and dashed many of her sporting and academic hopes. She was unable to continue with gymnastics or play sport at the same level because her depth perception had changed dramatically and her confidence dropped.
She continued to work hard academically but often from suffered from severe headaches which occurred after prolonged reading and looking at screens. Her mother gave evidence that her personality had changed 100% since the accident.
Expert opinion put the loss of Ms Redding’s eyesight at 6/36. This outcome resulted in a significant loss of sight.
Mr White did not appeal the decision in the lower Court on liability but appealed the damages awarded to Ms Redding in respect of non-economic loss, economic loss and out of pocket expenses for contact lenses.
The Judgment
- Non-Economic Loss
Non-economic loss or general damages is the head of damages (compensation) for the intangible effects of the injury, such as pain and suffering, loss of enjoyment of life, loss of amenity of life and disfigurement. In NSW there is a maximum currently of $635,000 which can be awarded for this category of damages for the most extreme case. Pursuant to s16 of the Civil Liability Act 2002 (NSW), damages cannot be awarded unless the severity of the loss is at least 15% of the most extreme case. The primary judge assessed the severity of Ms Redding’s non-economic loss at 55% of the most extreme case.
The appellate judges did not overturn the primary judge in this regard and found that Ms Redding’s personality and ‘zest’ for life had been altered dramatically and her ability to perform tasks previously carried out with ease was no longer possible. It was also appropriate to consider the issue that she now only has one unrestricted eye and if damage were to occur, she would be left severely disabled.
- Future Economic Loss
Future economic loss is designed to compensate for loss of the capacity to earn income in a productive manner. It is not necessary for the injured person to have been in the workforce at the time of the injury, as was the case here. Their Honours determined that they must assess the damages as best they could based on the assumptions that Ms Redding had aspired to, following completion of the HSC. (State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133).
Although the vocational/professional aspirations of Ms Redding was varied and undefined, the Court found that it was clear that her high academic achievement and sporting potential defined her as an above average person. The pre- accident drive and ambition of Ms Redding gave rise to the potential to earn more than the average person (50% more as found in the primary judgment) even if the way in which she achieved this outcome was not necessarily ascertainable at the time.
- Out of Pocket Expenses for Contact Lenses
It was determined by both the primary judge, and on appeal, that there was still a possibility that contacts could be used in the future but recognised it was not a certainty. The evidence showed a willingness of Ms Redding to try contacts and the expert identified circumstances where contacts may be used. The Court made an allowance of 50% of the likely future costs for contact lenses aligning with the trial judge.
Conclusion
The appeal was dismissed, and Mr White was ordered to pay the sum of $692,806.30 plus Ms Redding’s costs of the appeal.
This case represents an injured individual’s potential to claim compensation for the negligent actions of others, resulting in harm. It highlights the complexity of assessing the potential economic and non-economic harm that can impact on the injured party. The decision reinforces the clear idea about economic loss, so far that it is not the loss of income but the potential loss of future income and that this applies to individuals that have not yet entered full time work.
Claims for compensation for personal injury are very complex. Our team at The Law Office of Conrad Curry are highly specialised personal injury and medical negligence lawyers ready to assist you with your claim.
