The onus rests on the plaintiff to prove loss of earning capacity, but a defendant who contends the plaintiff has a residual earning capacity bears an evidentiary burden to adduce evidence of what work the plaintiff is capable of performing and what jobs are available. A defendant who fails to lead such evidence runs the risk that the plaintiff's meagre materials will be held sufficient to support a finding of severely restricted earning capacity. However, even where the defendant fails to discharge this evidentiary burden, the plaintiff must still establish the extent of incapacity claimed — a finding of total unemployability requires evidence that goes beyond the absence of challenge from the defendant. Damages for loss of superannuation are not recoverable where economic loss is calculated on a self-employed basis.
The full text is available to signed-in members, including the 33 later cases that cite this judgment.
9 of the 33 citing cases carry a classified treatment. How each court treated it is available to signed-in members.