19 February 2018

There is reversed evidentiary onus of residual earning capacity based upon the decision of Garling, J in Kearney .v. Mead later confirmed by the Court of Appeal.

                "it is not incumbent upon the injured plaintiff to prove what employment he or she is not incapacitated from performing.   It is for a defendant who contends that the plaintiff has a residual earning capacity to educe evidence of what the plaintiff is capable of doing and what jobs are open to such a person".

In that case, the plaintiff lived about 1 hour's drive from Mudgee NSW and the defendant argued that the plaintiff should have moved to a larger labour market such as Sydney to obtain a job.

The Court did not accept this argument and limited its consideration of "labour market" to Candos and the surrounding areas.

This represents good news for the injured person in a Civil Liability claim, for otherwise the injured person would have his/her post injury work capacity assessed or limited to fictional employment available perhaps 100's of kilometres from where the injured person lives.

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