WALKER v Sell

In *Walker v Sell*, the Supreme Court of New South Wales was asked to determine whether a plaintiff, who had been injured in a motor vehicle accident, was entitled to recover damages for the loss of earning capacity. The defendant, the driver of the other vehicle involved in the collision, admitted liability for the accident. The central dispute therefore concerned the assessment of the plaintiff's damages, specifically the extent to which his pre-accident earning capacity had been diminished by his injuries.

The primary legal issue before the Court was the proper method for calculating damages for loss of earning capacity where the plaintiff's employment was casual and irregular. The Court was required to consider how to assess the plaintiff's pre-accident earning capacity in such circumstances and how to account for the impact of the injuries on that capacity, taking into account the inherent uncertainties of casual employment.

The Court reasoned that in assessing loss of earning capacity for a casual worker, it was necessary to determine the plaintiff's earning capacity at the time of the accident, rather than relying solely on past earnings. This involved considering not only actual earnings but also the opportunities for work that were reasonably available to the plaintiff. The Court applied principles of assessing damages for loss of earning capacity, acknowledging that such an assessment involves a degree of speculation but must be grounded in evidence. The Court found that the plaintiff had established a loss of earning capacity and proceeded to quantify that loss.