CLA: s.11(3) hypothetical considerations & earning capacity

McKenna v Fraser & Anor [2014] QSC 14


The defendant submitted that s.11(3) of the Civil Liability Act 2003 (CLA) rendered inadmissible evidence of the plaintiff as to hypothetical considerations of earning capacity, which was premised on “had I not been injured”. His Honour Justice North held the limitation was in relation causation and not the assessment of quantum.

North J

[5] When the report and the cases referred to are considered it is plain that the section is directed to matters to do with “causation” in the context of the trial upon this issue of breach, not to the assessment of damage for loss of earning capacity.  I think that this is apparent also from a reading of the section, and in particular, the context in which that section is found in the Act noting the provisions in later parts of the Act that deal with the assessment of damages. There is another reason why, in principle, that section should not apply to the consideration of the assessment of damages which flows from the very nature of the task to be performed by a court in assessing damages following personal injury.

[7] In many cases, the High Court has emphasised that the assessment of loss of earning capacity, both between injury and trial but particularly future, is not merely an arithmetical exercise. It involves a consideration and an assessment of the sum of money that a notional plaintiff would have had at his or her disposal but for the accident.  The inquiry into that issue necessarily involves the consideration of the

hypothetical circumstances that might have confronted a plaintiff before and subsequent to trial, or might be in prospect at the time of trial. In other words, necessarily, plaintiffs give evidence of what their plans were, what their aspirations were and what they thought their capabilities in the future might, if uninjured, might have been as well as what they might be in the circumstances of the injury.


[8]    Indeed, a part of the inquiry by the defendant at trial often is directed to those issues so as to flesh out a better picture of what might have been the circumstances applicable absent injury and into the future when the hypothetical of the past and future loss is considered. For these reasons, statements of the nature that “absent injury, my plans in the future were to be” are receivable. The ultimate forensic question at the trial, is whether the evidence is persuasive and what weight is given to it and what role it plays, if any, ultimately in the assessment of the damages.


(footnotes omitted)


Brisbane Barrister – David Cormack

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