The evidentiary onus of proving earning capacity

It is so easy to focus on the issue of liability when preparing to defend a claim for personal injury that the importance of obtaining the reliable (usually multi-disciplinary) expert evidence required to defend claims for lost earning capacity is often overlooked, despite economic loss often being the largest single head of damage claimed.

The result is often significant difficulty when attempting to negotiate an early settlement, or later in CARS or at trial when expert evidence to defend earning capacity is required.

Money hand LWA1

The defendant bears the evidentiary onus of proving residual capacity to earn

While the Plaintiff bears the legal onus of proving loss of earning capacity the Defendant bears theevidentiary onus of establishing that there is a real residual earning capacity and it’s likely value.

“…it is not incumbent upon the injured plaintiff to prove what employment he or she ‘is not incapacitated from performing’. It is for a defendant which contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person:” see: Raby v Bristow [2005] NSWCA 199 at [73]

“The real defendant [insurer] must have resources from which evidence can be produced to show what sort of employment is within the residual capacity of an injured litigant, and what sum it is likely to produce.  It has, in my view, an evidentiary burden requiring it to adduce material of this kind.” See Kallouf v Middis [2008] NSWCA 61 at [53] citing  Linsell v Robson [1976] 1 NSWLR 249 (at 254 – 255). Continue reading


Grappling with issues in Total and Permanent Disablement (TPD)

Increased awareness amongst lawyers of group life TPD policies within superannuation packages, and reductions in benefits in statutory schemes, have lead to very significant increases in claims on and litigation over TPD policies in recent years.  The number of firms acting on both sides of the record has grown rapidly, with more and more lawyers now grappling with issues in TPD.LifeInsurance.jpg.pagespeed.ce.QRPegAOn0B

While the underlying factual questions about capacity for work or employability are the same as those that arise in other areas of personal injury law, the contractual basis of the cause of action means that the legal tests to be applied are particular to this field, and to the terms of each policy. Continue reading