Chen by her tutor Huang v Kmart Australia Ltd

This matter concerned an appeal and a cross-appeal arising from a District Court judgment awarding damages for negligence. The applicant, a young child, suffered a laceration to her right eyelid at the respondent's store, resulting in mild facial scarring and ptosis of the eyelid. The primary judge had awarded damages for non-economic loss and loss of earning capacity. The respondent sought leave to cross-appeal against the award for loss of earning capacity, while the applicant sought to appeal the quantum of damages awarded.

The central legal issues before the Court of Appeal were whether the primary judge erred in assessing damages for non-economic loss, specifically concerning the applicant's persistent pain and suffering, and whether the primary judge adequately compensated the applicant for loss of earning capacity. The applicant contended that the primary judge failed to adequately consider the physical and emotional trauma of the injury and potential corrective surgeries when assessing non-economic loss. The respondent argued that the applicant had not proven, on the balance of probabilities, that the scarring or ptosis would be productive of financial loss, and therefore the buffer sum awarded for loss of earning capacity was inadequate.

The Court of Appeal found no error in the primary judge's assessment of damages for non-economic loss, noting that the primary judge's reasons addressed the trauma of the injury and potential future surgeries. The Court also determined that the sum awarded for loss of earning capacity was within a reasonable range of potential awards, and that the evidence adduced was sufficient to establish that the scarring or ptosis might be productive of financial loss. Consequently, the Court refused the respondent's application for leave to cross-appeal and dismissed the applicant's appeal.