On 23 June 2026, the New South Wales Court of Appeal handed down its decision on the Randwick City Council’s appeal against the New South Wales District Court decision in Wunderwald v Randwick City Council [2025] NSWDC 466.
The Court of Appeal affirmed the District Court’s findings on liability but overturned the award of $50,000 for future economic loss. In doing so, the Court emphasised that an award for future economic loss must be supported by a proper evidentiary foundation and comply with the requirements of s 13 of the Civil Liability Act 2002 (NSW). In particular, the Court reinforced that a plaintiff must establish the assumptions underlying the claimed loss, identify their most likely future circumstances but for the injury, and provide a reasoned basis for the calculation of any award. A buffer award cannot be based on speculation or broad possibilities, no matter how modest the amount.
Background
In Wunderwald v Randwick City Council [2025] NSWDC 466, the District Court of NSW held that Randwick City Council, as the occupier of the Des Renford Leisure Centre café, was liable in negligence after a freestanding high table toppled onto six-year-old Lily Wunderwald, causing serious head injuries.
Lily was injured in January 2020 after interacting with a tall, unstable table that was not fixed to the floor. Although the Council had conducted regular safety inspections and there had been no previous incidents involving the tables, the Court found this did not eliminate the foreseeable risk posed by the furniture in a café regularly used by families with young children.
The Court applied ss 5B and 5C of the Civil Liability Act 2002 (NSW) to determine whether the Council breached its duty of care. It held that:
- The risk of a child pulling or climbing on a freestanding table, causing it to topple, was foreseeable, even without prior accidents or actual knowledge of the danger.
- The risk was not insignificant, given the tables’ instability, the regular presence of unsupervised children, and the potential for serious injury.
- A reasonable occupier would have taken simple precautions, such as securing the tables to the floor or removing them, particularly as the burden of doing so was minimal.
Causation was not disputed, and the Court found that the Council’s failure to take reasonable precautions was a necessary cause of Lily’s injuries.
Lily was awarded $175,300 in damages, comprising:
- $112,500 for non-economic loss,
- $12,800 for future out-of-pocket expenses, and
- $50,000 for future economic loss,
with the Council also ordered to pay her legal costs.
Appeal
Randwick City Council appealed against the decision and contended that the primary judge erred in reaching the following conclusions:
- That the risk was not insignificant;
- That, having regard to the burden of taking precautions to avoid similar risks of harm, a reasonable person in their position would have taken the precautions of wither affixing that table and similar tables to the floor or removing them all together; and
- That Lily Wunderwald was entitled to an award of $50,000 for future economic loss by way of buffer.
The NSW Court of Appeal upheld the appeal on the ground that Lily was not entitled to an award of $50,000 for future economic loss by way of buffer but dismissed the other grounds for the appeal.
Future Economic Loss
Section 13 of the Civil Liability Act 2002 (NSW) provides that a court cannot award damages for future economic loss unless the claimant establishes that the assumptions upon which the award is based accord with the claimant’s most likely future circumstances but for the injury. The court must also identify those assumptions, adjust the award by reference to the percentage possibility that the relevant events would have occurred, and state both the assumptions and the relevant percentage applied. While courts recognise that future economic loss often cannot be calculated with precision, there must nevertheless be an evidentiary foundation for the award and compliance with the requirements of s 13 (see Brown v Hewson [2015] NSWCA 393).
The primary judge accepted that although Lily did not suffer from a recognised psychiatric disorder, the emotional consequences of her facial scarring were likely to negatively affect her future earning capacity. His Honour reasoned that Lily may be placed at a relative disadvantage in the labour market when changing jobs because of her appearance and that she may experience periods of apprehension, anxiety, worry or increased stress requiring time off work or reduced working hours, resulting in financial loss. On this basis, a buffer of $50,000 was awarded for future economic loss.
The Court of Appeal held that these findings did not satisfy the requirements of s 13. The judge’s conclusions were framed only as possibilities rather than findings about Lily’s most likely future circumstances. There was no evidentiary analysis of the type of employment Lily was likely to pursue, how her scarring would place her at a disadvantage in the labour market, or the extent to which any such disadvantage would affect her earning capacity. Similarly, the possibility that she may require time off work due to psychological consequences lacked a secure evidentiary foundation, particularly as the evidence indicated that her psychological condition had stabilised.
The Court further criticised the award of $50,000 as appearing to have been “plucked out of the air”. The judgment contained no explanation as to why $50,000 was appropriate rather than a lesser amount such as $20,000 or $10,000. The amount was not derived from identified assumptions or adjusted by any percentage possibility as required by s 13. Instead, it reflected speculation that Lily might one day suffer economic loss arising from psychological sequelae of her injury.
The Court rejected the submission that the award could be justified because it was only a “modest” sum when compared with Lily’s likely lifetime earnings. Compliance with s 13 does not depend on whether the amount awarded is large or small. Rather, a plaintiff must establish an evidentiary basis for future economic loss and the court must identify the assumptions and percentage adjustments underpinning the award. As the evidence demonstrated that the most likely outcome was that Lily would suffer no financial disadvantage from her childhood injury, any possibility of future economic loss was considered wholly speculative. Accordingly, the Court of Appeal allowed the appeal on this ground and set aside the $50,000 buffer award.
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