The NSW Court of Appeal’s 19 May decision in Hall v State of New South Wales [2014] NSWCA 154 provides some interesting guidance in respect of appealing the assessment of non-economic loss under the Civil Liability Act.  The case concerned a psychiatric injury suffered by a schoolteacher (appellant) working within a correctional facility. She was present when a fight broke out between two students and, while she was not injured, it was accepted she suffered from a resulting psychiatric injury. The trial judge accepted that the appellant’s life had been significantly affected, that she has been unable to work, is depressed and unmotivated to carry out basic tasks. However, His Honour found that she was ‘not entirely without a sense of humour, she is able to travel, to go out and to interact with her children. He assessed her to be 25% of a most extreme case. The appellant appealed the 25% assessment on the grounds that it was to low and the respondent cross appealed submitting it was too high.   

The Court of Appeal found no basis to upset the 25% finding. However, it took the opportunity to consider the applicable principles to the challenge to the 25% assessment finding. Both parties approached the appeal as if an assessment of a most extreme case calls for an exercise of discretion by the courts, just as a common law award of damages for pain and suffering called for an exercise of discretion. However, the Court of Appeal disagreed. Leeming JA, with whom Meagher JA and McDougall JA agreed, quoted with approval Basten JA in Berkeley Challenge Pty Ltd v Howarth[2013] NSWCA 370 who said:

‘The importance of the distinction is that the assessment of general damages, now being reduced by statute to a determination of the severity of the injuries as a proportion of a most extreme case, involves no translation of pain and suffering into a cash payment, but is rather to be compared with the assessment of the restrictions imposed by the injuries on the plaintiff’s pre-existing earning capacity. On this approach, the assessment of non-economic loss is not to be seen as analogous to a discretionary judgment, but rather to be subject to the general principles for appellate review articulated in Warren v Coombes. That means that if the appellate court’s assessment of the facts satisfies it that the conclusion reached by the trial judge is erroneous, it should not shrink from substituting its own opinion for that of the trial judge. If that conclusion permits of a higher level of intervention in respect of such awards, that is because of the significant change which has been made from the common law principles governing general damages.’