McDonnell v McAliece [2012] NSWCA 346

McDonnell v McAliece [2012] NSWCA 346

The primary judge erred by arbitrarily putting out of account the appellant's demonstrated 2007 earning capacity, whether derived from extrapolating her seven months of employment or from including the Industrial Relations Commission underpayment settlement. The 2007 figures showed capacity at about 80 per cent of average weekly earnings and should have formed the foundation for assessing past and future economic loss, subject to appropriate allowance for risks associated with small business, periods out of work and other vicissitudes. The Court reassessed damages using about 80 per cent of average weekly earnings with a 20 per cent discount for vicissitudes and awarded $483,854.

Jurisdiction
Australia
Judgment Date
15 October 2012
Procedural Posture
Workers Compensation Work Injury Damages Appeal / Appeal From District Court of New South Wales Decision on Damages and Costs
Outcome
Appeal allowed.
Legal Topics
['work Injury Damages' 'past Economic Loss' 'future Economic Loss' 'loss of Earning Capacity' 'assessment of Earning Capacity' 'vicissitudes' 'small Business Earnings']
['workers Compensation' 'tort Law' 'damages' 'employment Law'] ['work Injury Damages' 'past Economic Loss' 'future Economic Loss' 'loss of Earning Capacity' 'assessment of Earning Capacity' 'vicissitudes' 'small Business Earnings']

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Procedural Posture

Workers Compensation Work Injury Damages Appeal / Appeal From District Court of New South Wales Decision on Damages and Costs

Legal Issues

  1. 1 ["Whether the primary judge erred in assessing past and future economic loss by excluding the appellant's 2007 earnings from the damages calculation." "Whether the appellant's demonstrated 2007 earning capacity should form the foundation for assessing loss of earning capacity, with allowance for future vicissitudes and possible small business returns."]

Ratio Decidendi

The primary judge erred by arbitrarily putting out of account the appellant's demonstrated 2007 earning capacity, whether derived from extrapolating her seven months of employment or from including the Industrial Relations Commission underpayment settlement. The 2007 figures showed capacity at about 80 per cent of average weekly earnings and should have formed the foundation for assessing past and future economic loss, subject to appropriate allowance for risks associated with small business, periods out of work and other vicissitudes. The Court reassessed damages using about 80 per cent of average weekly earnings with a 20 per cent discount for vicissitudes and awarded $483,854.

Court Disposition

Appeal allowed.

Orders

  • ['Appeal allowed.' 'Judgment in the District Court as to damages and costs be set aside and in lieu thereof order that judgment be entered for the plaintiff in the sum of $483,854.' "The plaintiff's costs be payable in accordance with the Workers Compensation Regulation 2010." 'Such costs be paid by CGU Workers...