Kemp v Alway

The appeal in *Kemp v Alway* concerned a motor vehicle accident in which the respondent suffered injuries. The primary dispute revolved around the assessment of damages awarded to the respondent, specifically concerning non-economic loss, future out-of-pocket expenses, and future economic loss. The appeal was heard by Mason P and Tobias JA.

The court was required to determine whether the primary judge's assessment of the respondent's non-economic loss, based on a 30% impairment of a most severe case, fell outside the bounds of sound discretionary judgment. Further, the court had to consider whether the award for future out-of-pocket expenses was excessively generous and whether the award for future economic loss was adequately supported by the evidence, particularly in light of the primary finding of a 25% likelihood of diminished future economic capacity under section 70A of the *Motor Accidents Act*.

The court found that the primary judge's assessment of non-economic loss was not demonstrably wrong, accepting the 30% impairment as within the range of reasonable discretion. However, the court concluded that the award for future economic loss was too high, finding that the primary judge had not adequately accounted for the 25% likelihood of diminished future economic capacity. The court also found the award for future out-of-pocket expenses to be excessive.

Consequently, the appeal was allowed.