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The New South Wales Court of Appeal’s decision in Randwick City Council v Wunderwald [2026] NSWCA 116 assists in understanding awards for future economic loss for minors arising as a consequence of an injury to which the Civil Liability Act 2002 (NSW) (the Act) applies.

Background

The plaintiff Lily, then six-and-a-half-years-old, suffered an injury in a café at Maroubra in January 2020. The café was occupied and operated by the defendant Randwick City Council.

Lily approached a table that was approximately her height, placed her hands on its edge and leaned against it. Due to the instability and weight of the table, it tipped and caused her to fall backwards.  As it fell the tabletop struck her forehead resulting in a significant cut extending to the bone.

As a result, her mother (and tutor) then made a claim in the District Court of New South Wales for damages. Lily was successful with her claim and was awarded $175,300 in damages including $50,000 for future economic loss.

In establishing liability for her injury, Lily relied on ergonomic expert evidence concerning the stability and suitability of the table.

Randwick City Council appealed, contending that the primary judge erred in finding the following:

1. the risk of injury was not insignificant;
2. that a reasonable person in the Council’s position would have taken the precautions to avoid similar risks of harm by either affixing the tables to the floor or removing them altogether; and
3. that the plaintiff was entitled to an award of $50,000 for future economic loss by way of a buffer.

The Court of Appeal’s Decision

The Court of Appeal allowed the appeal in part.

It rejected the first two grounds of appeal upholding that the risk was “not insignificant” and that the Council could have prevented the risk by affixing the tables to the floor or removing them altogether, in line with s5B(1)(b)(c) of the Act.

However, the Court upheld the ground of appeal regarding the award of damages for future economic loss. Leeming JA, with Stern and Ball JJA agreeing, found that the decision of the primary judge to award $50,000 as a buffer for future economic loss did not satisfy the requirements of s 13 of the Act

Section 13 requires a court to identify the assumptions underpinning an award for future economic loss and to be satisfied that those assumptions reflect a claimant’s most likely future circumstances. It is also necessary to establish some loss to earning capacity by reason of the defendant’s negligence.

In awarding $50,000 for economic loss the primary judge relied on two possibilities namely

that there may be some disadvantage suffered by the plaintiff in regard to changing jobs on the open labour market, and that the plaintiff may have “period of apprehension, anxiety, worry or increased stress” requiring her to take time off work, reduce hours, or take other steps that may lead to financial loss.

The Court of Appeal held that these matters lacked any sufficient evidence or calculations and were expressed as mere possibilities for the plaintiff.

The orders made by the Court of Appeal were:

1. Appeal allowed in part.
2. Set aside the prior judgment in favour of the plaintiff, and in lieu thereof, enter judgment for the plaintiff in the sum of $125,300.
3. The appellant to pay three quarters of the costs of the respondent in the Court.

Significance

This case confirms a key principle in personal injury and public liability matters: that “buffers” for economic loss must be rooted in calculation and supported by evidence rather than mere possibility, and for matters involving young children, it is extremely difficult to assess and predict.  Nevertheless, any award must still comply with s13 of the Act and should be decided on a case-by-case basis.

Disclosure and important note: This article is based on our own legal research and thinking. Some of its content has been drafted with the assistance of artificial intelligence. The authors have checked and approved this article, including the AI generated content, for publication.

This article was published on 28th of August 2026 by Carroll & O’Dea Lawyers and is based on the relevant state of the law (legislation, regulations and case law) at that date for the jurisdiction in which it is published. Please note this article does not constitute legal advice. If you ever need legal advice or want to discuss a legal problem, please contact us to see if we can help. You can reach us on 1800 059 278 or via the Contact us page on our website. (www.codea.com.au). If you or a loved one has been injured, use our Personal injury Claim Check now.