White v Redding

1. [1]

   MACFARLAN JA: On 12 January 2014 Ms Newbie Redding, the respondent, suffered a severe injury to her left eye when it was hit by a tennis ball struck by the appellant, Mr White, during an informal game of cricket in the Function Room at the Manly Lifesaving Club. Ms Redding, who was then aged 16, was not participating in the game but instead was preparing to go home after assisting with a barbeque held at the Club on that day.

2. [2]

   In proceedings in the District Court, Ms Redding claimed damages for negligence against the Club and Mr White. The proceedings against the Club were settled prior to trial. Russell SC DCJ thereafter found in favour of Ms Redding in her claim against Mr White, directing the entry of judgment for the sum of $692,806.30 ([2018] NSWDC 278). Mr White does not appeal against the finding against him on liability but appeals against the awards made to Ms Redding in respect of non-economic loss, economic loss and the possible costs to Ms Redding of contact lenses.

3. [3]

   For the reasons given below, I consider that the appeal should be dismissed with costs.

Ms Redding’s circumstances

1. [4]

   The primary judge described Ms Redding’s pre-accident circumstances as follows:

The effect of the accident on Ms Redding

1. [5]

   When Ms Redding’s eye was hit she suffered extreme pain and was taken to hospital. On 15 January 2014 Associate Professor Fung, an ophthalmologist, performed surgery, under anaesthetic, to reattach the retina in Ms Redding’s left eye. The operation and its aftermath were highly traumatic experiences for her. She could not see at all out of her left eye for three weeks and thereafter had continuing pain and limitations in sight from it. There was no real improvement during 2014. She attempted, contrary to Associate Professor Fung’s advice, to return to gymnastics but found that she was unable to achieve at the high level to which she aspired, and to enjoy the sport, due principally to her loss of depth perception. Likewise, it was necessary for her to stop other sporting activities, such as surf lifesaving.

2. [6]

   In studying for her Higher School Certificate in 2015, Ms Redding found that her left eye ached when she read or used screens. Nevertheless she worked hard and gave evidence that she obtained an ATAR mark of 97.25 which included a component of 5.0 “bonus marks” allocated by the University Admission Centre to recognise her status as an elite athlete.

3. [7]

   When Ms Redding left school, she did not know what to do because, she said, her past aspirations had been destroyed by the accident. She commenced a double degree in sport and exercise at the University of Technology of Sydney but found that unsatisfying. She is now doing a psychology course remotely through Charles Darwin University in Darwin. She hopes to complete her degree by mid-2020. In 2018 she commenced work in a community development program on Milingimbi, a remote island off Arnhem Land in the Northern Territory.

4. [8]

   The primary judge described Ms Redding’s evidence concerning her present eyesight as follows:

5. [9]

   His Honour reached the following conclusions concerning the impact of the accident on Ms Redding (at [133]):

6. [10]

   Ms Redding’s mother, Mrs Sarah Redding, also gave evidence. She described her daughter as having been “happy and driven and determined” prior to the accident and said that she was now sad much of the time and was withdrawn. Mrs Redding said that her daughter’s “whole personality changed” as a result of the accident and that her “self-esteem was [now] completely different” to what it had been. She described her daughter’s personality traits as being “100 per cent” different to what they were before the accident.

The expert medical evidence

1. [11]

   Dr Michael Delaney, an opthalmic surgeon, gave evidence that, whilst Ms Redding had normal vision in her right eye, the vision in her left eye was “6/36”, meaning that she could only see detail from six metres away that a normal person would see from 36 metres away. Dr Delaney said that her spectacles only resulted in a minor improvement in vision and that she had no prospect of improvement in the foreseeable future. He confirmed that when doing close work or on screens, Ms Redding would have headaches and blurring of vision.

2. [12]

   The views of Dr Michael Steiner, an ophthalmologist, were generally consistent with those of Dr Delaney. Dr Steiner found that Ms Redding had a 97 per cent loss of vision in her left eye, resulting in her having an overall 24 per cent impairment of her vision. Dr Steiner confirmed that Ms Redding’s poor vision in one eye would cause her to become tired when doing close work or using a computer.

3. [13]

   The findings of Ms Neryla Jolly, an orthoptist, and vision and driving specialist, were generally consistent with those of the other experts. Ms Jolly found that Ms Redding had sufficient sight to enable her to drive, despite concluding that “in new/unfamiliar situations she may be at risk and need time to safely position herself (eg driving in narrow/restricted lanes)”.

The judgment at first instance

1. [14]

   For the purposes of s 16 of the Civil Liability Act 2002 (NSW), the primary judge assessed the severity of Ms Redding’s non-economic loss as 55 per cent of the most extreme case, leading to an award, after indexation, of $349,500 under this head (at [154]-[155]).

2. [15]

   His Honour considered at [151] that he should reflect in his award “the fact that if there is any problem with [Ms Redding’s] right eye in the future, the left eye will be no support, and if she suffers visual problems in the right eye she will be severely disabled because of the almost total disability in the left eye”, and concluded (at [153]):

3. [16]

   The primary judge concluded that Ms Redding’s future earning capacity, but for the accident, would have been $1,765 nett per week, representing the nett average weekly earnings of full-time adult Australians increased by 50 per cent. His Honour considered that this future earning capacity had been reduced by the accident by 20 per cent, that there should be a 15 per cent discount for the vicissitudes of life and that the loss would not commence for two years until Ms Redding finished full-time study and moved into the work force (at [175] and [184]). On these bases, his Honour calculated Ms Redding’s entitlement to damages for future loss of earning capacity as $265,668, together with $29,223 in respect of future loss of superannuation contributions.

4. [17]

   As to Ms Redding’s pre-accident aspirations, his Honour noted (at [173]):

5. [18]

   His Honour’s reasons for his conclusions as to economic loss were as follows (at [179]-[183]):

Non-economic loss

1. [19]

   At common law, general damages for pain and suffering resulting from personal injury were “almost entirely [a] matter of impression and of common sense, and [were] only subject to review in very special cases” (Miller v Jennings (1954) 92 CLR 190 at 195; [1954] HCA 65, quoting Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 at 616 (Lord Wright)). Thus, the verdict of a jury on a claim for such damages would only be set aside if the appellate court was satisfied that the verdict was “out of all proportion to the circumstances of the case”, the assessment of damages being “more like an exercise of discretion than an ordinary act of decision” (ibid at 616). The principles stated in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 concerning appeals from discretionary decisions were therefore treated as applicable to appellate review of such awards. As a result, an appellate court would intervene only if the appellant established that there had been a material error of fact or law, that irrelevant matters were taken into account, or relevant matters were not taken into account, or if the decision was “unreasonable or plainly unjust” such that it could be inferred that some error had been made in arriving at the decision (ibid).

2. [20]

   The award of general damages for non-economic loss is however now regulated by statute. Relevant in the present case is s 16 of the Civil Liability Act, which in sub-s 16(1), provides that “[n]o damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case”. If the severity of the non-economic loss as determined by the court in percentage terms is equal to or greater than this percentage, the amount of damages is, by sub-s 16(3), to be ascertained by reference to the table set out in that subsection.

3. [21]

   As a result, assessment does not occur by the court choosing a figure falling within a range of legally permissible outcomes. The assessment occurs by the court answering a question (that is, as to the severity of the loss expressed in percentage terms) to which there is only one correct answer, albeit that arrival at the answer will involve the exercise of a value judgment. Consistently with judgment of Gageler J’s analysis in Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713; [2018] HCA 30 at [29]-[49], this change requires a different approach to appellate review to be adopted in the present context. Instead of the House v The King approach (which his Honour refers to at [48] as “the deferential standard applicable to appellate review of an exercise of judicial discretion”), the “correctness standard” of appellate review identified in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 is to be applied. His Honour concluded his analysis by stating (at [49]):

4. [22]

   The principles stated by Gageler J in SZVFW were recently applied by this Court in State of New South Wales v Naaman (No 2) [2018] NSWCA 328 at [10]-[15].

5. [23]

   Warren v Coombes was concerned with a question to which there was only one correct answer, namely, whether the defendant had driven negligently. No question arose in that case, as it did in the later decision in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, concerning the credibility of witnesses. In Warren v Coombes at 552, the plurality stated that:

6. [24]

   Their Honours further stated that “[t]o perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process” (ibid).

7. [25]

   The relevance of the Warren v Coombes standard of review in the present context was confirmed in Hall v State of New South Wales [2014] NSWCA 154 Leeming JA (with the concurrence of Meagher JA and McDougall J) said the following (at [31]-[32]):

8. [26]

   Hall v State of New South Wales was followed by this Court in McKenzie v Wood [2015] NSWCA 142. The statement in Hornsby Shire Council v Viscardi [2015] NSWCA 417 at [67] that the House v The King test is applicable, should not in my view be regarded as authoritative as no issue as to the appropriate standard for appellate review appears to have been argued in Viscardi, and the decisions in Hall and McKenzie appear not to have been drawn to the Court’s attention.

9. [27]

   In challenging the primary judge’s conclusion that the severity of Ms Redding’s non-economic loss is 55 per cent of a most extreme case, the appellant submitted, inter alia, that:

   1. (1)

      Ms Redding is “able to lead a relatively normal life”;

   2. (2)

      she is “obviously pursuing a passion with her partner in working in a remote community”;

   3. (3)

      “[s]he is not in pain all the time”;

   4. (4)

      “[s]he is not depressed or suffering from any psychological illness”;

   5. (5)

      “she is able to do most things because of her unrestricted vision in her right eye”; and

   6. (6)

      her injury and disability is “somewhat less” than that of “persons living with long term pain or being unable to work or needing long term medical care or long term domestic assistance”.

10. [28]

    In response, Ms Redding’s counsel particularly emphasised the following:

    1. (1)

       Ms Redding lost 97 per cent of sight in her left eye;

    2. (2)

       she suffers from “frequent headaches, [has] lost self-confidence and suffer[s] from anxiety”;

    3. (3)

       on her mother’s evidence, Ms Redding’s “positive personality traits … [are] 100 per cent different”;

    4. (4)

       she has little depth perception and has constant “floaters” in her left eye which appear to her as “an ant or a group of ants on the front of your eye”;

    5. (5)

       there is no present prospect of her condition improving in her lifetime, notwithstanding that estimated on an actuarial basis she has 68 years of life remaining;

    6. (6)

       “[s]he is at an increased risk of glaucoma”; and

    7. (7)

       “if anything adverse were to occur to her right eye, she could effectively be blind”.

11. [29]

    To apply the Warren v Coombes test (see at [23]-[24] above) requires me to determine whether, taking into account any advantage the primary judge had over this Court and giving respect and weight to his Honour’s conclusion, I am persuaded that his Honour’s decision was erroneous.

12. [30]

    In determining the severity of Ms Redding’s condition, the primary judge in my view had an advantage over this Court in seeing and hearing Ms Redding and her mother give evidence as to the pain, suffering and restrictions on her life that Ms Redding has had to endure and, in light of the medical evidence, will have to endure for the rest of her life. Taking this advantage into account and giving respect to his Honour’s determination, I am not persuaded that his Honour was wrong in the conclusion to which he came. Quite apart from that pain and inconvenience, Ms Reddings’ demeanour and zest for life have been severely impacted by the appellant’s negligent conduct. Moreover, it was in my view entirely appropriate for his Honour to take into account that if she suffers any problem with her right eye in the future, she will be visually severely disabled because of the almost total lack of vision in her left eye. The possibility of this occurring is inevitably a cause of anxiety and otherwise unnecessary restriction on her day to day activities. So too are the “floaters” in her left eye, which she described as “permanently in [her] vision” and “[v]ery interrupting” when reading a book, a highly unpleasant impediment to her everyday life.

13. [31]

    For these reasons, the appellant’s challenge to the primary judge’s award for non-economic loss should be rejected.

Future economic loss

1. [32]

   Section 13 of the Civil Liability Act applies to an award for economic loss in a case such as the present. It is in the following terms:

2. [33]

   Section 13(1) requires the court to determine what the plaintiff’s future earning capacity would likely have been but for the accident. As Basten JA pointed out in Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 at [28], s 13(1) (and its equivalent in the Motor Accidents Compensation Act 1999 (NSW)) does not refer to the next logical step that must be taken in assessing damages for future economic loss, that is, to determine what the plaintiff’s future earning capacity is likely to be in light of the injury that he or she has suffered. Nevertheless, that step must be taken, but in assessing damages allowance must be made in accordance with s 13(2) for the possibility that the plaintiff would have come to be in that position even if the injury had not been suffered.

3. [34]

   The determination that needs to be made for the purpose of assessing future economic loss is not an exercise of discretion, nor a decision analogous to the exercise of discretion in the sense that the court is required to choose between outcomes, any of which are legally permissible outcomes. Instead, the determination involves the court answering a number of questions to each of which there is only one correct answer. Thus, in accordance with the reasoning given above in relation to non-economic loss (at [21] above), the standard of appellate review stated in Warren v Coombes must be applied.

4. [35]

   The leading authority as to how courts should assess damages for loss of earning capacity in cases of personal injury involving young plaintiffs or others whose future circumstances are particularly difficult to determine is State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133. In that case, a year 10 school student suffered severe burns during a science experiment. She was then aged 14, with a long term ambition to become a self-employed hairdresser. The evidence indicated that she would have been likely to achieve this goal had the cosmetic and physical injuries she suffered in the accident not prevented it.

5. [36]

   Mason P (with whom Handley JA agreed) rejected the appellant State’s submission that the trial judge erred in leaving the plaintiff’s claim for damages for loss of opportunity to conduct her own hairdressing business to the jury when there was no evidence of the earnings of self-employed hairdressers. His Honour agreed with the judgment of Heydon JA in relation to this issue (at [27]). As well, Mason P referred to the plaintiff’s counsel having addressed the jury on the basis that, but for the accident, the plaintiff would have earned in the future 20 per cent more than the full-time adult female worker’s average weekly nett wage, and added (at [25]):

6. [37]

   Heydon JA noted that “[t]he compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss” and that “[e]valuation of the worth of a loss of capacity to earn – of a lost chance to earn – is of its nature a more imprecise inquiry than calculation of a lost income … It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities” (at [71]).

7. [38]

   His Honour referred with approval to statements that the “trier of fact may have to form conclusions on ‘slender material[s]’” and that sometimes the assessment of damages involves “guess work rather than estimation” (at [71]).

8. [39]

   His Honour continued ([84] and [87]):

9. [40]

   His Honour found no error of fact or law in the trial judge’s summing up, despite the case having been left to the jury for assessment of future economic loss in the absence of evidence of the earnings of self-employed hairdressers.

10. [41]

    The appellant made three specific complaints in relation to the primary judge’s award for future economic loss.

11. [42]

    First, he contended that no award should have been made in the absence of evidence as to what Ms Redding would have earned but for her accident. This is in my view answered by Moss where, despite the absence of evidence of the earnings of people in the occupation to which the plaintiff aspired, it was found to be open to the trier of fact, in that case the jury, to assess her damages as best it could. This was so even though performance of that task might have involved “guess work”. On this point, the present is in fact a stronger case than that for the plaintiff in Moss because in Moss the plaintiff had a clearly identified ambition to undertake a particular occupation, that of a self-employed hairdresser. In the present case, Ms Redding’s ambitions were much less clearly defined. Certainly, she was clear that she had wanted a “highly active job” and did not want a “sedentary life” behind a desk but, as to what particular occupation she aspired to, she referred only to “the police force, special force[s], with helicopter pilot as the main desire”. In any event, only limited weight can be put on expressions of career aspirations by persons as young as 16. Inevitably, interests and passions change as age progresses and opportunities that may not have been anticipated arise. For this reason, evidence as to the earnings of a “helicopter pilot” would have been of limited utility, even apart from the difficulty of identifying what type of helicopter pilot work, out of what can be assumed to be a very broad spectrum of work, should have been the subject of evidence.

12. [43]

    Secondly, he submitted that there was no basis for his Honour’s estimation that Ms Redding would in that circumstance have earned 50 per cent above average nett weekly earnings. What is more important in a case such as the present than evidence concerning highly uncertain career paths is how Ms Redding’s pre-accident prospects can be thought to have compared to those of an average wage earner. This is the way in which the primary judge approached the issue. On this approach, the pre-accident drive and ambition of Ms Redding is, as it should be, given full weight. Her achievements, and her commitment and hard work that were necessary for her to attain them, when combined with her high intelligence evident from her HSC results, demonstrate that when the accident occurred she was far from an average person.

13. [44]

    Bearing in mind again the primary judge’s advantage over this Court in seeing and hearing Ms Redding and her mother give evidence, and therefore in assessing the type of person she was prior to the accident, I am far from convinced that the primary judge erred in concluding that the best estimate that could be made was that Ms Redding would have earned 50 per cent more than the average wage earner. Her personal characteristics strongly supported this estimate even though the way in which she might have achieved this outcome necessarily was and remains uncertain.

14. [45]

    The appellants’ third specific complaint was that the primary judge did not have any proper basis for estimating that, as a result of the accident, Ms Redding’s hypothesised future earning capacity of 50 per cent above average weekly nett earnings would be reduced by 20 per cent. In particular, the appellants submitted that Ms Redding should have called evidence as to the earnings of psychologists because she is presently studying psychology and may therefore become a psychologist. As with evidence of helicopter pilots’ earnings, such evidence would in my view have been of little, if any, utility. The very considerable uncertainty as to whether Ms Redding would ultimately want to pursue employment as a psychologist, as to the capacity in which she might practice it, and as to the impact of her injury on her ability to undertake it, indicated that.

15. [46]

    Findings of the primary judge relevant to the impact of her injury on her ability to practice as a psychologist included the following:

    1. (1)

       “[t]he range of possible interference [to her earning capacity] could be anywhere from minimal (if no further complications arise) to a complete destruction of her earning capacity if she develops any condition which renders her completely blind, such as serious glaucoma or an injury to the right eye” (at [181]);

    2. (2)

       “the restriction of the plaintiff in her future life to sedentary occupations leaves her doing work involving a lot of reading, which in turn causes pains and problems in her left eye” (at [133]); and

    3. (3)

       “[t]he condition is one which will not improve at all during her lifetime” ([133])

16. [47]

    I refer also to the views of Dr Delaney and Dr Steiner (at [11] and [12] above) as to Ms Redding’s difficulties in doing “close work” or using computers.

17. [48]

    In these circumstances, it was in my view open to the trial judge to assess Ms Redding’s future economic loss in the way that he did, notwithstanding the absence of evidence of the earnings of psychologists, or indeed of helicopter pilots. Moss indicates that evidence of that type is not essential in the case of claims of a person such as Ms Redding. As I have said, such evidence would in my view have in any event been of little, if any, utility.

18. [49]

    I therefore reject the appellant’s challenges to the primary judge’s assessment of future economic loss.

Out of pocket expenses for contact lenses

1. [50]

   The appellant challenges an allowance of $25,000 that the primary judge made for the possible cost to Ms Redding of contact lenses.

2. [51]

   His Honour’s reasons for making this allowance were as follows (at [163]-[164]):

3. [52]

   The appellant challenged this allowance on the basis that “[t]here was no evidence from the respondent that she would ever switch to contact lenses. The Trial Judge also noted his impression that Dr Delaney was not overly optimistic they would be suitable for the respondent”.

4. [53]

   By awarding only 50 per cent of the potential expense of contact lenses, the primary judge recognised that Ms Redding’s use of them was by no means a certainty. His Honour was however justified in considering that there was a real prospect, even if only 50 per cent, that she would use them. As Dr Delaney noted in his report:

5. [54]

   This evidence showed a willingness on Ms Redding’s part to try contact lenses and Dr Delaney’s identification of a circumstance in which she may be able to tolerate using them. As well, Dr Delaney clearly saw that there would be an advantage to her if she could do that.

6. [55]

   In these circumstances, there was no error in the primary judge making a 50 per cent allowance for the cost of contact lenses.

CONCLUSION

1. [56]

   For the reasons given above, the appeal should be dismissed with costs.

2. [57]

   GLEESON JA: I agree with the orders proposed by Macfarlan JA and with his Honour’s reasons, subject to one qualification.

3. [58]

   The qualification relates to the test for establishing judicial error with respect to an assessment of non-economic loss under s 16 of the Civil Liability Act 2002 (NSW). Macfarlan JA concludes that the test is the general “correctness” standard of review in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, because s 16 calls for a decision where there is one correct answer, or adopting the language of Gageler J in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 (Minister v SZVFW) at [49], the conclusion for which s 16 calls demands “a unique outcome”.

4. [59]

   This view accords with the approach favoured in some recent authorities in this Court: see Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [13] (Basten JA), cf at [75]-[76] (Tobias AJA, Meagher JA agreeing); Hall v State of NSW [2014] NSWCA 154; (2015) 71 MVR 1 at [32] (Leeming JA, Meagher JA and McDougall J agreeing); McKenzie v Wood [2015] NSWCA 142 at [21] (Ward JA, Leeming JA, and Sackville AJA). In reaching his conclusion, Macfarlan JA drew upon the distinction articulated by Gageler J in Minister v SZVFW at [29]-[49], between the “correctness” standard of review in Warren v Coombes and the House v The King approach which Gageler J refers to at [48] as “the deferential standard” applicable to appellate review of an exercise of judicial discretion. Gageler J concluded at [49]:

5. [60]

   I should say immediately that I do not read these remarks of Gageler J as suggesting that the well-established categories of judicial error are limited to the two categories discussed by his Honour. That would be inconsistent with authority: see the discussion in Costa v The Public Trustee of New South Wales [2008] NSWCA 223 (Costa v The Public Trustee) and Branir Pty Ltd v Owston Nominees (No 2) Pty Limited (2001) 117 FCR 424; [2001] FCA 1883.

6. [61]

   For the reasons that follow, I respectfully disagree that the general “correctness” standard of review applies to a challenge to an assessment of non-economic loss under s 16. It may be accepted that s 16 does not confer a discretionary power (Hall v State of NSW at [28]); it also may be accepted that s 16 calls for a finding of the severity of non-economic loss by reference to the proportion of a most extreme case. However, in my view, given the evaluative nature of the task under s 16 of the Civil Liability Act, such a finding does not call for a unique outcome; it is a decision for which there is not one correct answer. Consistent with well-established authority, the test for appellate intervention is whether the judge has in some way mistaken the facts or the legal principles to be applied or otherwise demonstrated error, which may be discernible only on the basis that the result is outside a reasonable range.

7. [62]

   Five preliminary points should be noted. First, although the Court received supplementary written submissions from the parties after the conclusion of the hearing, those submissions did not purport to comprehensively address this issue.

8. [63]

   Second, as this Court observed in Costa v The Public Trustee, the tests for determining judicial error depend on the nature of the decision under challenge, which in turn determines the extent to which judicial restraint is required before appellate intervention can occur: see at [18] (Hodgson JA), [33] (Ipp JA), and [71]-[97] (Basten JA).

9. [64]

   Third, where the decision under challenge involves an evaluative judgment it is necessary to consider whether the applicable legal criteria permit some latitude of choice or margin of appreciation such as to admit of a range of legally permissible outcomes: Minister v SZVFW at [44] (Gageler J), referring to Norbis v Norbis (1986) 161 CLR 513 at 518; [1986] HCA 17.

10. [65]

    Fourth, an assessment of general damages at common law is a decision on a matter where there is not one correct answer. The well-established test for judicial error referred to by Dixon CJ and Kitto J in Miller v Jennings (1954) 92 CLR 190 at 196; [1954] HCA 65 and repeated by Mason J in Wilson v Peisley (1975) 7 ALR 571 at 585 is as follows:

11. [66]

    Although Gageler J said in Minister v SZVFW at [44] that the deferential standard of appellate review of evaluative conclusions in House v The King applied to such a decision referring to Miller v Jennings at 196, it would be more accurate to say that the test at common law is, in substance, little different from the test in House v The King: see Costa v The Public Trustee at [38] (Ipp JA).

12. [67]

    Fifth, notwithstanding the test for review of an assessment of general damages at common law, in the case of non-economic loss under s 16 of the Civil Liability Act the language of the statute is paramount. It is necessary to consider whether the applicable legal criteria in s 16 call for a decision where there is one correct answer or admit of a range of legally permissible outcomes: Norbis v Norbis at 518; Minister v SZVFW at [49] .

13. [68]

    The approach in Hall v State of NSW and McKenzie v Wood seem to have been influenced by the change in the method of assessment of non-economic loss under s 16 compared to the assessment of general damages at common law. As Leeming JA explained in Hall v State of NSW at [28]–[30]:

14. [69]

    However, subsequently in Metaxoulis v McDonald’s Australia Ltd [2015] NSWCA 95 at [38], Basten JA, without adverting to his earlier remarks in Berkeley Challenge or the approval of such remarks in Hall v State of NSW, said in relation to assessment of non-economic loss under s 16:

15. [70]

    In Costa v The Public Trustee Hodgson JA said that a decision on the assessment of non-economic loss involves an evaluative judgment for which there is not one correct answer: at [18]. Ipp JA agreed, although he spoke in terms of a review of an assessment of general damages: at [39]; Basten JA also agreed but spoke more generally in terms of an assessment of damages in personal injury cases: at [101]. It was accepted by all members of the Court that an appellate court could only intervene if there was material error in the reasoning, such as acting on wrong principle or misapprehending the facts, or if the decision is outside the reasonable range for such a decision: at [18] (Hodgson JA), [37]-[39] (Ipp JA) and [103] (Basten JA). While Costa v The Public Trustee post-dates the Civil Liability Act, none of the judgments expressly referred to the legislation.

16. [71]

    For my part, whilst acknowledging that the Court must faithfully respect and uphold the language and intention of the statute, I find it difficult to conclude that Parliament intended, by the change in the method of assessment of non-economic loss under s 16, that such a decision is now a matter where there is one correct answer. It is also a large step to accept that Parliament intended that the previously constrained approach to challenging an assessment of general damages at common law was done away with for decisions with respect to non-economic loss under s 16: cf the comments of Basten JA in Berkeley Challenge at [13].

17. [72]

    That the correctness standard of review may not apply to an evaluative judgment is demonstrated by Singer v Berghouse (1994) 181 CLR 201 at 212; [1994] HCA 40. There the House v The King standard of review was applied to a challenge to an opinion formed by a primary judge, as a precondition to the exercise of discretion to make a maintenance order in a family provision case, as to whether an applicant for the order had been left with “inadequate” provision for his or her “proper maintenance, education and advancement in life”. Importantly, as Gageler J observed in Minister v SZVFW at [45], the High Court did not depart from Norbis v Norbis in Singer v Berghouse, (citations omitted):

18. [73]

    Since the introduction of the Civil Liability Act in 2002, it has often been said by this Court that s 16 calls for a discretionary or an evaluative judgment. As Leeming JA stated in Hall v State of NSW at [31], the cases that describe the task under s 16 as “discretionary” are to be understood in the context of the statement in Dell v Dalton (1991) 23 NSWLR 528 at 533 that the assessment involves matters of “opinion, impression, speculation, and estimation”.

19. [74]

    Given that the applicable legal criteria for an assessment under s 16 permit an assessment that is “neither scientific nor normative” and involves matters of “opinion, impression, speculation, and estimation”, in my view, the Court will not intervene in the assessment as to the appropriate proportion of a most extreme case, except on well-established grounds that the judge has in some way mistaken the facts or the legal principles to be applied or otherwise demonstrated error, which may be discernible only on the basis that the result is outside a reasonable range: see, for example, Ellis v Rantzos [2005] NSWCA 266 at [43]; Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 at [53]; Wynn Tresidder Management v Barkho [2009] NSWCA 149 at [110]-[111]; Varga v Galea [2011] NSWCA 76 at [75]; Jackson v Mazzafero [2012] NSWCA 170 at [21]; Mason v Demasi [2012] NSWCA 210 at [23]; Clifton v Lewis [2012] NSWCA 229 at [56]; Nemeth v Westfield Shopping Centre Co Management Pty Ltd [2013] NSWCA 298 at [11]; Metaxoulis v McDonald’s Australia Ltd [2015] NSWCA 95 at [38]; Hornsby Shire Council v Viscardi [2015] NSWCA 417; (2015) 214 LGERA 311 at [67].

20. [75]

    That s 16 calls for a finding of severity of non-economic loss by reference to a proportion of a most extreme case, rather than a monetary sum, does not mean that the decision calls for a unique outcome. After referring to the wide measure of discretion (or evaluation) that has always existed in fixing damages for non-economic loss at common law, the Court in Southgate v Waterford (1990) 21 NSWLR 427 observed at 440, in relation to a similar provision in s 79 of the Motor Accidents Act 1988 (NSW):

21. [76]

    That s 16 does not call for a unique outcome is consistent with the constrained role of an appellate court in reviewing assessments of non-economic loss under s 16. This Court has deprecated an approach of tinkering with such an assessment, adopting reticence on the basis that the Court will not intervene unless the result is outside a reasonable range: Clifton v Lewis [2012] NSWCA 229 at [56]; Appleton v Norris [2014] NSWCA 311 at [39]. Such reasoning, which I accept is correct, is inconsistent with the proposition that there is only one correct answer to the assessment of non-economic loss under s 16 of the Civil Liability Act.

22. [77]

    One further matter should be mentioned. Given the “intrinsically imprecise nature of the statutory task” under s 16, in many cases nothing will turn upon the different formulation of the applicable principles of appellate review: Hall v State of NSW at [32] (Leeming JA). On either approach, an appellate court may intervene if the judge misapprehends any relevant fact or acts upon a wrong principle of law. The critical difference is that, absent such an error, the appellate court cannot interfere with the assessment unless it is satisfied that it is wholly erroneous, that is, the result is outside a reasonable range.

23. [78]

    In the present case, whichever approach is adopted, the result is the same. I agree with Macfarlan JA that the appellant has not demonstrated error on the correctness of standard review. Nor has the appellant demonstrated error on the well-established grounds that the primary judge has in some way mistaken the facts or the legal principles or otherwise demonstrated that the result is outside a reasonable range of an assessment of an appropriate proportion of a most extreme case.

24. [79]

    WHITE JA: I have had the advantage of reading in draft the reasons for judgment of Macfarlan JA and Gleeson JA. I agree with the orders proposed by Macfarlan JA and agree with his Honour’s reasons, except in one respect.

25. [80]

    The point of difference between the reasons of Macfarlan JA and Gleeson JA concerns the nature of the appeal from the primary judge’s determination of the proportion which the severity of Ms Redding’s non-economic loss bore to a most extreme case within the meaning of s 16 of the Civil Liability Act 2002 (NSW). Macfarlan JA applies the test in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 to that determination but concludes that the primary judge had an advantage over this Court in seeing and hearing Ms Redding and her mother give evidence as to Ms Redding’s pain, suffering and restrictions on her life, and so defers to the primary judge’s determination. I agree with Macfarlan JA that the primary judge’s advantage in seeing the plaintiff and her mother are such that appellate intervention would not be warranted, even if the applicable standard of appellate review is that in Warren v Coombes. I agree with Gleeson JA that a primary judge’s decision under s 16 is a discretionary or evaluative decision to which the House v The King (1936) 55 CLR 499; [1936] HCA 40 “deferential standard” of appellate review applies.

26. [81]

    Since the decision of this Court in Hall v State of New South Wales [2014] NSWCA 154 there has been a conflict of decisions concerning the nature or standard of appellate review of a trial judge’s decision under s 16 of the Civil Liability Act as to the severity of an injured plaintiff’s non-economic loss as a proportion of a most extreme case. In Hall v State of New South Wales Leeming JA, with whom Meagher JA and McDougall J agreed, approved (at [30]) Basten JA’s observations in Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 (at [13]) that the assessment of non-economic loss should not be seen as analogous to a discretionary judgment, but was subject to the general principles for appellate review articulated in Warren v Coombes (at [30]).

27. [82]

    Leeming JA observed that “some authorities” in this Court refer to s 16 as involving an exercise of discretion and referred in that respect, by way of example, to the reasons of Tobias AJA in Berkeley Challenge Pty Ltd v Howarth (at [79]) and to Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343 at [32].

28. [83]

    In Berkeley, Tobias AJA said:

29. [84]

    In Berkeley, Meagher JA agreed with Tobias AJA’s reasons with respect to the appellant’s challenges to the primary judge’s assessment of non-economic loss (at [25]). Basten JA’s opinion that the Warren v Coombes standard of review was applicable was a minority opinion.

30. [85]

    In Hall v State of New South Wales Leeming JA, in referring to Berkeley and Coles Supermarkets Australia Pty Ltd v Haleluka, went on to say:

31. [86]

    As I read Leeming JA’s reasons in Hall v State of New South Wales, his Honour rejected the notion that a judgment as to the degree of severity of a plaintiff’s non-economic loss as a proportion of a most extreme case is a discretionary decision, but accepted that it was an evaluative decision depending upon matters of opinion, impression, speculation and estimation and not logic or precision. The proposition that a decision under s 16 is not a discretionary decision does not sit easily with Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 at 518 and Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at 205 [19].

32. [87]

    The House v The King standard of appellate review has been applied to decisions that have been characterised as not discretionary, but evaluative in much the same way as discretionary decisions. Examples are family provision orders where the issue is whether an eligible claimant on a deceased’s estate has been left without adequate provision for his or her maintenance, education or advancement in life (Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40). Such a decision does not involve the exercise of a discretionary power as such, but rather the making of an evaluative judgment for which there is no unique outcome. It falls into the category of decisions described by Priestley JA in Moran v McMahon (1985) 3 NSWLR 700 (at 723) as “so analogous to decisions involving the exercise of discretion as to be assimilated to discretionary judgments” only reviewable under the House v The King standard. Other examples are the reluctance of the Court of Criminal Appeal to interfere with a sentencing judge’s characterisation of the objective seriousness of an offence (Mulato v R [2006] NSWCCA 282 at [37]; Bourke v R [2010] NSWCCA 22 at [29]; Lee v R [2019] NSWCCA 106 at [4]), or the apportionment of respective degrees of responsibility for an injury between a negligent defendant and a contributorily negligent plaintiff (Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 493-4).

33. [88]

    With respect, it is not a sufficient justification for applying the principles in Warren v Coombes to a decision under s 16 that the decision does not involve the exercise of a discretion. Applying Singer v Berghouse, the fact that the assessment involves matters of opinion, impression, speculation and estimation would suggest that the House v The King standard of appellate review should apply. Those matters indicate that in the absence of material error in reasoning, unless an assessment is outside a reasonable range, the assessment of one judge, objectively speaking, is no better than that of another judge (Singer v Berghouse at 212).

34. [89]

    This point is apparently picked up in Hall v State of New South Wales by what Leeming JA said at [32] (quoted at [85] above).

35. [90]

    It is only true to say that nothing will turn upon the different formulation of the applicable principles of appellate review if appellate review is confined to decisions that fall outside a reasonable range. Otherwise, applying Warren v Coombes, it would fall to each judge on the appeal by way of rehearing to make his or her own assessment of the degree of severity of the injured plaintiff’s non-economic loss as a proportion of a most extreme case, giving full weight to the primary judge’s advantage of having seen the injured plaintiff, in order to decide whether the primary judges assessment was erroneous, but being bound to substitute his or her opinion if it differed from that of the primary judge even though the primary judge’s assessment fell within a reasonable range.

36. [91]

    The applicable appellate standard of review has been a matter of perplexity. Thus, in Berkeley, Meagher JA agreed with Tobias AJA’s reasons, but in Hall v State of New South Wales, his Honour agreed with the reasons of Leeming JA who adopted the reasons of Basten JA in Berkeley in which Basten JA was in the minority. By the same token, in Clifton v Lewis [2012] NSWCA 229 Basten JA (at [56]) adopted Dell v Dalton (1991) 23 NSWLR 528 at 553 and Jackson v Mazzafero [2012] NSWCA 170 in holding that the relevant question was whether the assessment of a trial judge was within a reasonable range. As Gleeson JA observes, Basten JA repeated that observation in Metaxoulis v McDonalds Australia Ltd [2015] NSWCA 95 at [38]).

37. [92]

    Hall v State of New South Wales was followed by this Court in McKenzie v Wood [2015] NSWCA 142 which was an extempore decision where the relevant finding of the Court was:

38. [93]

    As with the decision in Hall v State of New South Wales, it is not clear what precisely was intended to be meant by the large measure of appellate deference to be accorded to the determination of the primary judge. It is not clear that the “large measure of appellate deference” should be restricted to deferring to the primary judge’s advantage in having heard and seen the plaintiff and other witnesses give evidence.

39. [94]

    In Hornsby Shire Council v Viscardi [2015] NSWCA 417 (“Viscardi”) this Court held (at [67]):

40. [95]

    Although the Court of Appeal in Viscardi was not referred to Hall v State of New South Wales or McKenzie v Wood, this statement was consistent with earlier decisions of this Court on s 16, notably Owners – Strata Plan 156 v Gray [2004] NSWCA 304 at [41], Franklins Limited v Burns [2005] NSWCA 54 at [48]-[60], Doubleday & Anor v Kelly [2005] NSWCA 151 at [35]-[36], Jopling v Isaac [2006] NSWCA 299 at [10]-[13], Berkeley, Nemeth v Westfield Shopping Centre Co Management Pty Ltd [2013] NSWCA 298 at [11], Mason v Demasi [2012] NSWCA 210 at [23] and Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264 at [107].

41. [96]

    In my view, this Court’s decision in Viscardi was correct because a decision under s 16, if not a discretionary decision, is an evaluative decision raising the same issues that arise on an appellate review of a discretionary decision such that the decision should only be overturned if there is either a relevant error of reasoning (or failure to give reasons), or if the trial judge’s decision is outside a reasonable range of decision (thereby invoking the second ground of review in House v The King at 505).

42. [97]

    The High Court’s decision in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 does not affect this conclusion. I respectfully do not agree with Macfarlan JA that Gageler J’s analysis in SZVFW requires a different approach to appellate review in the present case. The majority opinion in SZVFW on the applicable standard of appellate review to the administrative decision of the Refugee Review Tribunal in issue in that case was given by Nettle and Gordon JJ (at [85]-[87]) with whose reasons in this respect Kiefel CJ agreed (at [18]). Those reasons do not touch upon the present issue. The reasons of Gageler J on the general principles of appellate review of discretionary, evaluative, or normative judgments are entitled to great respect but are not binding on this Court. Nor did Gageler J suggest that a decision on s 16 is reviewable in accordance with anything other than the House v The King standard.

43. [98]

    There is a distinction between discretionary decisions of which sentencing was an example when House v The King was decided, evaluative decisions that are analogous to discretionary decisions, and normative decisions, being whether a party has complied with a required norm of behaviour (such as not acting negligently or not exercising an administrative power in a way that is manifestly unreasonable). SZVFW concerned the last class of case. A decision under s 16 concerns the first or second class.

44. [99]

    The fact that a statute or rule or principle of common law raises an issue that must be decided one way or the other may be a strong pointer as to the nature of the decision under appeal and the applicable standard of appellate review. But it is not determinative. Whether an eligible claimant has been left with inadequate provision for his or her proper maintenance, education or advancement in life can be answered yes or no, but the House v The King standard of appellate review applies.

45. [100]

    As a matter of form, s 16 demands a unique outcome. A single answer must be made as to the percentage of severity of the non-economic loss as a portion of a most severe case. Is that proportion 24 per cent? Or is it 25 per cent? Or 26 per cent? The answer in each case must be either yes or no. In form, there is a single correct answer to each question. A judge who opts for 24 per cent must say that 25 per cent or 26 per cent is wrong. But in substance the decision is evaluative. It is usually impossible to say why the answer of 24 per cent is right but 25 per cent or 26 per cent is wrong. One reason for this is because a decision under s 16 requires a judge to determine the severity of the totality of the injury suffered by a plaintiff – an exercise which necessarily involves some aspects of imprecise and evaluative decision-making – and then to express the severity of that harm as a percentage of a most extreme case. The process of comparison is also a decision which requires a degree of imprecision and evaluation, if only because the “most extreme case” is itself “not a highly defined concept” (Doubleday v Kelly at [35]). The nature of the inquiry is such that error will only be demonstrated if there is a material error in reasoning, or the primary judge’s conclusion is outside a reasonable range, which itself is a matter of impression.

46. [101]

    For these reasons I agree with Gleeson JA as to the appropriate principle to be applied to the review of the primary judge’s decision for his award of non-economic loss. For the reasons given by Macfarlan JA, the same conclusion should be reached if the award is to be reviewed on the principles of Warren v Coombes.

47. [102]

    As noted above, I agree with the orders proposed by Macfarlan JA.