On 10 July 2010, Mr Abrahim Fardous (“the respondent” to the appeal) slipped and fell at Coles Supermarket sustaining an injury to his back.
The respondent sued Coles Supermarkets Pty Ltd (“the appellant”) for damages for negligence. The respondent, following a hearing in the District Court before Sorby DCJ, succeeded on the issue of liability and was awarded damages in the total amount of $354,965.00.
The principal question on appeal, with the appellant not challenging a finding of liability, was whether the respondent had any earning capacity at the time of his injury, having regard to an earlier work related injury, which occurred on 27 September 2007, from which he suffered severe lower back pain extending into his left leg, and for which he required a hospital admission for five days and surgery under the care of Dr Mark Davies, Neurosurgeon and Spinal Surgeon, on 31 January 2008. Thus, the appellant challenged awards for past economic loss of $79,600.00, future economic loss of $219,640.00 and future out of pocket expenses of $25,725.00.
Section 13 of the Civil Liability Act 2002 (NSW)
Section 13 of the CLA provides:
“Future economic loss—claimant’s prospects and adjustments
(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.
(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.
(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”
The Court of Appeal found that application of this section in a case where the extent of the plaintiff’s pre-accident earning capacity is in issue requires a statement of the court’s assumptions (that is, findings) about the extent to which, but for injury which is the subject of the claim, any earning capacity that the plaintiff had at the date of the subject injury would have been productive of income thereafter. This involves a finding of the percentage possibility of income of a certain level being earned.
The Court of Appeal further found that with respect to the assessment of earning capacity remaining after the injury that is the subject of the proceedings, there needs to be a “practical assessment” of the likelihood of the plaintiff having obtained employment.