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Loss of opportunities when assessing damages for economic loss

Travers v Caringa Enterprises Ltd [2017] NSWDC 143 (14 June 2017)

An injured worker who has been assessed with at least 15% whole person impairment may bring a claim for work injury damages. The claim is limited to past and further economic loss.

The assessment of economic loss is determined on the basis of past loss of earnings up to the date of settlement or court hearing, and an estimate of future loss of earning capacity thereafter. There is little argument regarding the calculation of past loss. But future loss must include consideration of speculative matters—such as whether or not the worker would have been promoted, or changed jobs, or may have stopped work in any event because of some pre-existing condition.

In most cases, the vagaries of determining future loss of earning capacity are adjusted by allowing a 15% discount to the calculation for ‘the vicissitudes of life’. But some cases require more attention to allegations regarding an anticipated change of job or promotion.

For example, a medical student whose goal was to become a doctor, but who is prevented from doing so because of an injury while performing casual work, will want to have future loss of earning capacity based on the high earnings of a doctor, not the earnings of a student in casual employment. Other examples would include:

  • loss of concurrent, secondary or self-employment opportunities;
  • loss of opportunity to increase working hours, such as from part time to full time.
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