Evaluation of the relevant criteria when determining non-economic loss and a buffer for loss of earning capacity
Clifton & Ors v Lewis  NSWCA 229
Judgment date: 30 July 2012
Jurisdiction: NSW Court of Appeal
- An award of non-economic loss is an evaluative judgment, and there are only limited circumstances where an appellate court will alter a primary judge’s award.
- To be entitled to an award for future economic loss a plaintiff must establish not only a diminution in earning capacity, but that the diminution is or may be productive of financial loss. This is distinct from a comparison of a loss of pre- and post-accident income, though this may be indicative of a loss of earning capacity.
- It is not necessary for medical evidence to expressly state that a plaintiff’s earning capacity is impaired. Such a finding may be made following a review of all relevant evidence.
On 28 August…