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.
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  NSWCA 199 at 
“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  NSWCA 61 at  citing Linsell v Robson  1 NSWLR 249 (at 254 – 255). Continue reading