When a rough and ready assessment of future loss of earning capacity is warranted

Bathis v Star Track Express Pty Limited and Ors [2009] QSC 331

This decision is a helpful example of a global approach to the calculation of loss of earning capacity when a precise mathematical formula is not practical.

In this instance the plaintiff had returned to work as a local truck driver with a ‘sympathetic’ employer, but was precluded for a number of reasons, including personal, in engaging in interstate or long haul truck driving. The difference between was not precise, but on one version was in the order of $250.00.

On this basis the defendant proposed this amount after 5 years for 20 years, until 65 years, discounted on the usual basis, totalling $156,643.20.

The plaintiff proposed a range of calculations that went from a loss of $450 week ($235,000.00), $800 ($339,000.00), to scenarios of not working again after 10 years ($425,000.00) or after 5 years ($643,000.00).

His Honour Justice Byrne SJA concluded at paragraphs 115 & 116:

[115] There is no escaping a rough and ready assessment; but the exercise must reflect a substantial chance that, after age 50, the plaintiff may not work much if at all. [116] Approaching the matter globally, as both sides accept is inevitable, and discounting not only for present receipt but also for the usual sorts of vicissitudes, $300,000 is awarded for diminution in future earning capacity, to which should be added 9% for superannuation foregone.

Brisbane Barrister – David Cormack

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