Where a plaintiff had a pre-existing disability at the date of the tortious injury, the question whether the plaintiff's theoretical earning capacity would have been productive of income but for the accident is a hypothetical question to be assessed by determining the degree of probability or possibility, not on the balance of probabilities. The court must make a practical assessment of the likelihood of the plaintiff having obtained employment and state the percentage possibility in accordance with s 13 of the Civil Liability Act 2002 (NSW).
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