Background
Suzanne Fuchs slipped on red-tinged oily liquid in an aisle of a Coles supermarket at Bondi Junction on 1 November 2020. She suffered an avulsion tear of her right hamstring tendon and a minor traction injury to the sciatic nerve, underwent several related procedures, and continued to experience pain and functional restrictions.
Fuchs, an architect and heritage consultant, alleged that the injuries substantially reduced her ability to work and perform domestic tasks. Shortly before trial, Coles admitted liability, and the parties agreed to reduce damages by 10% for contributory negligence. The trial therefore concerned damages only.
The Court’s Holding
Sirtes J assessed Fuchs’s damages at $1,008,195 before the agreed reduction. The Court awarded $297,480 for non-economic loss, $65,000 for past out-of-pocket expenses, $55,772 for future out-of-pocket expenses, $45,000 for past economic loss, $350,000 for future diminution of earning capacity, $67,123 for past care, and $127,820 for future care.
The Court rejected Fuchs’s substantially larger quantified claims for past and future earnings. Her financial records did not establish past loss beyond the accepted $45,000 for the 2022 financial year, while her proposed future-loss model relied on unsupported assumptions about billing rates, billable hours, overheads, and a hypothetical architectural practice. Nevertheless, the Court found that her capacity was reduced to approximately 24 working hours per week and awarded a $350,000 buffer for future economic loss.
After applying the agreed 10% deduction, the Court entered judgment for Fuchs for $907,375.50 and ordered Coles to pay her costs.
Key Takeaways
- A physical reduction in earning capacity is compensable only to the extent that it causes or may cause financial loss.
- Salary, dividends, and company profits must be examined according to their economic substance; returns attributable to capital, goodwill, or another person’s labour do not measure the injured person’s lost earning capacity.
- A court may award a buffer where future economic loss is real but cannot reliably be calculated, while rejecting a model built on unsupported assumptions.
Why It Matters
The decision illustrates the evidentiary difficulty of proving economic loss for a plaintiff whose income comes through both personal remuneration and a closely held business. Continued or increased wages, dividends, revenue, and profits may undermine a calculated-loss claim unless the plaintiff proves what portion was attributable to personal exertion and what would probably have been earned without the injury.
It also shows that rejecting a plaintiff’s precise future-loss calculation does not necessarily eliminate recovery. Where impaired capacity is established but its financial consequences remain uncertain, a substantial global buffer may provide fair compensation.