Dodds and Murdoch

In *Dodds and Murdoch*, the Supreme Court of Victoria was asked to determine whether a plaintiff, who had been injured in a motor vehicle accident, was entitled to recover damages for economic loss arising from the loss of future earning capacity. The plaintiff had been employed as a truck driver at the time of the accident and alleged that the defendant's negligence had caused injuries that prevented him from continuing in that profession. The defendant, however, contended that the plaintiff's claim for economic loss was overstated and that he had failed to mitigate his loss by not seeking alternative employment.

The central legal issue before the Court was the assessment of damages for loss of future earning capacity in circumstances where the plaintiff's pre-accident employment was physically demanding and the plaintiff's capacity to perform such work was permanently impaired. Specifically, the Court had to consider the extent to which the plaintiff's ability to earn income in alternative, less physically demanding roles should be taken into account when calculating the economic loss. This involved an examination of the principles governing the duty to mitigate loss and the evidentiary burden on a defendant seeking to reduce damages on this basis.

Judge Obradovic reasoned that the plaintiff was entitled to recover damages for the loss of his pre-accident earning capacity as a truck driver, as this was the capacity that had been impaired by the defendant's negligence. However, the Court also held that the plaintiff had a duty to mitigate his loss by seeking alternative employment that he was capable of performing. The Court found that the plaintiff had made reasonable efforts to find alternative work, but that the evidence did not establish that suitable alternative employment was readily available to him. Therefore, the Court awarded damages for the loss of future earning capacity, taking into account the plaintiff's diminished ability to earn income in his pre-accident occupation, but not reducing this amount based on hypothetical alternative employment that was not demonstrably available.