Mead v Kerney

[2012] NSWCA 215

NSW Court of Appeal

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Interrogate

Catchwords

1. Damages
2. › Personal injury
3. › Economic loss
4. › Loss of earning capacity
5. › Residual earning capacity
6. › Theoretical earning capacity of no value where no reasonable prospect of obtaining work to utilise it
7. › Whether defendant discharged evidential onus of proving practically available employment
1. Damages
2. › Personal injury
3. › Economic loss
4. › Loss of earning capacity
5. › Evidential onus
6. › Defendant who contends plaintiff has residual earning capacity bears evidential burden of adducing evidence of available employment
1. Damages
2. › Personal injury
3. › Economic loss
4. › Estimation of lost earnings
5. › Use of comparable employee's earnings as indexation factor
6. › Whether rate of increase of base salary or total earnings appropriate
1. Damages
2. › Personal injury
3. › Economic loss
4. › Future economic loss
5. › Retirement age
6. › Whether 65 or 67 appropriate given arduous physical nature of pre-accident employment

Quick Take

A defendant who contends a plaintiff has residual earning capacity must adduce evidence not only of the types of work the plaintiff can perform but also of the practical availability of such work in the plaintiff's geographic area. Proving theoretical fitness for certain job types is insufficient. Evidence of prolonged unsuccessful genuine job-seeking between accident and trial is a strong indicator that theoretical earning capacity has no practical value, and attributing a percentage chance to future employment without an evidentiary basis constitutes mere speculation.