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Finding of total loss of earning capacity despite residual physical capacity

  • Newsletter Article
  • Published 28.08.2019

Mahdi v Marble Design (Aust) Pty Ltd [2019] NSWDC 287 (25 June 2019)


This decision looks at the calculation of work injury damages. The case exemplifies how surveillance film can be used for forensic purposes. The case also takes account of the factors that a court will consider when deciding whether an injured worker has suffered a total loss of earning capacity despite having some physical capacity to perform suitable duties.


The worker was employed by the defendant as a labourer. On 10 May 2012, the worker was unloading large marble slabs when a slab fell onto the worker injuring his ankles and left wrist.

There was no issue that the defendant’s negligence had caused his injury, and the issue at trial was whether the worker had any residual earning capacity, and if so, to what extent?

Surveillance film

The worker told medical examiners and the court that he had developed an altered gait as a result of his injuries.

In response, the defendant relied on surveillance footage to show the worker walking without a limp. The defendant submitted that the worker should not be considered a reliable witness having regard to this evidence.

The trial judge reviewed the footage and was not satisfied that the film actually depicted the worker walking normally, i.e. without any pain or restriction. The judge rejected the defendant’s submission that the worker was not a credible witness.

This result may have been different if the defendant had submitted the surveillance film to medical examiners for their review and comment and obtained an expert opinion on the difference in the gait pattern as seen in the video footage and the gait pattern alleged by the worker.

Factors relevant to finding of total economic loss

The trial judge was satisfied that the worker had a residual earning capacity but then considered the factors set out below to conclude that the worker suffered a total loss of earning capacity on the open labour market:

  • The worker had tried hard to find work that was suitable given his restrictions but was unable to do so;
  • The worker’s limited English skills and work experience in Australia (being an immigrant from Iraq) were barriers to his finding work in Australia; and
  • The worker was motivated to return to work to provide for his family, as evidenced by his enrolment in a course to obtain a Diploma of Community Service.


This case is a reminder that to obtain the full benefit of surveillance film, the footage should be sent to a medical expert to review. Also, even if a worker has a capacity for work, it is not a guarantee that a Judge will find that he or she has a residual earning capacity. During case management it is a good opportunity for insurers to work with rehabilitation providers and workers to upskill workers, particularly assisting an injured worker improve his or her English skills.