Quantifying non-economic loss – Sport injury

Aug 9, 2023 | Publication

The case of White v Redding  NSWCA 152 highlights well the process the Court will undertake in considering negligence and compensation in sport injuries. Crucial to the plaintiff’s case was the fact that the plaintiff was not participating in the game but was a bystander. This fact was significant in the plaintiff avoiding the implications of Division 4 and 5 of the Civil Liability Act 2002 (NSW) which relate to the liability of obvious risks and dangerous recreational activities.

The plaintiff, Ms Newbie Redding, suffered an injury to her left eye when hit by a tennis ball struck by the defendant while playing an informal game of cricket in the function room at Manly Lifesaving Club. She was not participating in the game. She lost 97% of the vision in her left eye. At the time of the injury, Ms Redding was a talented athlete competing at National tournaments in gymnastics.

The plaintiff sued both the club and the defendant, Mr White. Proceedings against the club were settled before hearing and at first instance the primary judge found in favour of the plaintiff against the defendant. Mr White appealed in respect of damages. In particular, it was asserted that the primary judge erred in assessing non-economic loss at 55% of a most extreme case.

On the defendant’s appeal to the NSW Court of Appeal, there was disagreement as to the test for interference with non-economic loss, with Gleeson and White JJA applying the “deferential standard” of House v The King (1936) 55 CLR 499 and Macfarlan JA preferring the “correctness standard” of appellate review in Warren v Coombes (1979) 142 CLR 531.

However, the court unanimously agreed that given the primary judge’s advantages, the assessment of non-economic loss at 55% was not erroneous. Nor was there error in the assessment of future economic loss or in making an allowance for the cost of contact lenses in the future. Accordingly, the appeal was dismissed with costs.

The case can be read in full here: https://www.caselaw.nsw.gov.au/decision/5d0b105ce4b02a5a800c1bb4

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