The assessment of non-economic loss as a proportion of a most extreme case under s 16 of the Civil Liability Act 2002 (NSW) may be subject to a less restrictive standard of appellate review than the traditional Moran v McMahon discretionary judgment approach, though this was not the ratio of the decision. Past economic loss awards must include appropriate discounts for contingencies even where the plaintiff's evidence of earning capacity is unchallenged. Future commercial domestic care awards must account for the period during which gratuitous care remains available and must be discounted for pre-existing conditions that might independently have given rise to a need for care. The statement in Rabay v Bristow that the defendant bears the onus of proving residual earning capacity may need reconsideration in light of s 13 of the Civil Liability Act.
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