Plaintiff successfully appeals trial judge’s findings in relation to economic loss

In work injury damages claims where damages are limited to economic loss, the assessment of economic loss is often the significant issue in disagreement between the parties. Parties regularly obtain experts to make an assessment as to the injured worker’s capacity to return to work. Defendants have an onus to demonstrate the likelihood of the plaintiff obtaining employment in the future. The decision of Fuller v Avichem Pty Ltd trading as Adkins Building and Hardware [2019] NSWCA 305 provides guidance as to the factors the Court must consider.

On 11 August 2009, the plaintiff injured his back and left shoulder whilst lifting fibreboard sheets in the course of employment and sued his employer. The plaintiff claimed damages for alleged breach of statutory duty and Scotting DCJ awarded him damages totalling $421,652 for past and future economic loss.

His Honour relied upon an earning capacity assessment by Ms Own, clinical psychologist, which identified roles that she said the appellant would be able to undertake, including customer service call centre role. His Honour found the plaintiff completely incapacitated for work from the date of accident until the conclusion of hearing but that thereafter, he had a residuary earning capacity of 8 hours per week.

The plaintiff appealed and was successful.

The plaintiff appealed as to the adequacy of economic loss raising whether primary judge erred in finding that the plaintiff had a residual earning capacity of 8 hours per week, whether Ms Owen was sufficiently qualified to give expert evidence on the matters with which her report dealt amongst other issues.

Upholding the appeal the Court found that the defendant did not discharge its onus of demonstrating the likelihood of the plaintiff obtaining employment in the future and the Trial Judge should have assessed damages on the basis of total incapacity for the remainder of his working life. The Court considered the age of the plaintiff, 57, that the plaintiff had been out of the workforce for some 15 of the last 17 years, and the proposed jobs suggested by Ms Owen did not properly take in to account the plaintiff’s physical limitations.

The amount of 25% for vicissitudes should also have been reduced to the conventional allowance of 15%.

Bernard McAuley

McAuley Hawach Lawyers
11 Fennell Street, Parramatta NSW 2124
Telephone: (02) 9633 1826

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