The decision in RACQ Insurance Limited v Brennan 
QCA 150 is a reminder that an appeal court will be reluctant to
interfere with a trial judge's assessment of damages unless the
assessment meets the rigorous test of being "a wholly
erroneous estimate of the damage suffered".
The appeal concerned the calculation of future economic loss and
the interpretation of medical evidence relevant to the
At first instance
At trial, the respondent sued the appellant for personal
injuries after a motor vehicle collided with her as she made her
way across a marked pedestrian crossing in April 2009.
The Court found that the respondent's injuries had prevented
her from returning to work as a locomotive driver at the Proserpine
Sugar Mill until late June 2009.
In the 2012 financial year the respondent earned around $800 net
per week in this role.
The Court found, as a consequence of the respondent's
residual disabilities, that she would be unlikely to realise her
ambition of progressing to the role of a locomotive driver with
another company or within the mining sector where substantially
higher income could be earned, and pursue the types of careers in
that sector that her former colleagues had (earning, in the case of
one of the respondent's former subordinates, $3,600 per
Consequently, the Court awarded the respondent $528,925.56 in
damages, including $411,000 for future economic loss (calculated on
the basis of a net loss of $500 per week over 30 years to
retirement age), to reflect the loss of chance.
The appellant appealed the decision. The appellant submitted
that the decision should be overturned as the damages awarded,
particularly in respect of future economic loss, were manifestly
excessive considering the respondent's work history and lack of
previous efforts to obtain higher earning positions.
The appellant also argued that, as there was pre-existing
degeneration in the respondent's shoulder, the incident would
not have been the cause of the respondent being prevented from
moving into higher paying work in the future.
The appeal was unanimously rejected by the Court of Appeal.
In Chief Justice de Jersey's reasons for the decision, which
were adopted by Muir J and Mullins J, his Honour confirmed that the
trial judge had interpreted the medical evidence in a fashion that
was reasonably open and not in a manner that was inconsistent with
facts established by the evidence.
His Honour found the assessment of damages relating to the
reduced earning capacity was not manifestly excessive, allowing for
the extent of the respondent's whole person incapacity, noting
that the weekly loss of $500 adopted was about 36% of the earnings
of her former subordinate colleague ($3,600) and noting the demand
for such roles in the mining sector.
Chief Justice de Jersey also found the trial judge adequately
evaluated the loss of chance given the necessary uncertainties
Chief Justice de Jersey reiterated that an appeal court will be
slow to reverse a decision of the trial judge on questions of
quantum. His Honour confirmed the trial judge's findings and
found them on a factual basis reasonably open, and stated they were
not an example of a wholly erroneous estimate of the damages.
This decision provides a cautionary reminder that appeal courts
will be hesitant to interfere with quantum assessments by a trial
In particular, it reinforces that where the means by which a
trial judge assessed ongoing loss can be plainly identified and
medical evidence has been reasonably interpreted, the appellate
court will not be satisfied that the onerous requirements for
intervention of a "wholly erroneous estimate" or
"glaringly improbable" interpretation of facts will be
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).