Koncurat v Government Insurance Office of New South Wales

The Government Insurance Office of New South Wales (GIO) appealed to the New South Wales Court of Appeal against a decision of the District Court that had found in favour of the respondent, Mr. Koncurat. The dispute concerned the assessment of damages for personal injuries sustained by Mr. Koncurat in a motor vehicle accident.

The primary legal issue before the Court of Appeal was whether the District Court judge had erred in law by failing to make a finding as to the extent of Mr. Koncurat's earning capacity at the time of the accident, and consequently, whether the damages awarded for loss of earning capacity were excessive. The Court was required to consider the principles governing the assessment of damages for loss of earning capacity, particularly in circumstances where the plaintiff's employment history was intermittent or unstable.

The Court of Appeal held that the District Court judge had indeed erred. It was established that a plaintiff seeking damages for loss of earning capacity must demonstrate that they had a capacity to earn income which was diminished by the injury. The judge's failure to make a specific finding on Mr. Koncurat's earning capacity at the time of the accident meant that the subsequent award for loss of earning capacity was not properly supported. The Court reiterated that the assessment of damages for loss of earning capacity requires a factual determination of what the plaintiff would likely have earned but for the injury, taking into account their skills, experience, and the employment market.

Consequently, the Court of Appeal allowed the appeal, set aside the damages awarded for loss of earning capacity, and remitted the matter to the District Court for a redetermination of that specific head of damages.