The assessment of damages can be one of the most difficult aspects of a personal injury claim, particularly where an injured person’s future earning capacity is affected but the precise financial impact is uncertain. Fuchs v Coles Supermarkets Australia Pty Ltd [2026] NSWSC 948 provides useful guidance on how the Supreme Court approaches competing evidence concerning future economic loss, residual earning capacity and the appropriate retirement age. The decision demonstrates the Court’s preference for a fair and informed assessment of loss based on the evidence, rather than calculations based on speculative or unproven future earnings.
While the plaintiff originally pursued a negligence and occupier’s liability claim, the parties mutually agreed to liability and a 10% reduction for contributory negligence, leaving the primary consideration of future economic loss.
The facts surrounded an incident in November 2020, where the 57-year-old Plaintiff, Suzanne Fuchs, entered Bondi Junction Coles supermarket, and while navigating fully stocked roll cages and pillars through the aisles, slipped and had a bad fall on an oily liquid. She was taken by ambulance to hospital and was later diagnosed with an avulsion tear of the right hamstring tendon, and a minor traction injury to the sciatic nerve. This required three surgeries from mid-2021 to April 2023, and a period of rehabilitation. Ongoing pain and difficulty in performing daily tasks persisted. This fact was accepted by the defendant.
The plaintiff’s claim amounted to $2,538,460 in compensable damages, which was the sum of various pecuniary and non-economic losses, past and projected expenses and care, and total loss of earnings. Meanwhile, the defendant contended that the amount was only $573,500.
In evidence, the plaintiff provided statements outlining her incapacity post-injury. Her architecture work for the design and construction company she co-owned with her builder husband required site visits and a substantial amount of walking and carrying surveying equipment around jobsites. This, alongside her employment in cultural heritage, had her working upwards of 60 hours per week. Before the accident, she was in good health and performed these tasks as well as domestic duties with ease.
She provided various medical reports spanning from late 2023 to 2026 demonstrating her debilitation post-injury, including evidence from an orthopaedic surgeon, a physician, a psychiatrist, and an OT.
The defendant’s evidence contained medical reports from a surgeon, physician and an OT between the period of April 2024 to March 2025, which disputed the total claimed cost.
The heads of loss were each considered by Sirtes J in his judgement.
Non-economic loss
Section 16(1) of the Civil Liability Act 2002 (NSW) (“the CLA”) says that no damages are awarded for non-economic loss, unless the injury is at least 15% of a most extreme case.
In Southgate v Waterford (1990) 21 NSWLR 427, the assessment of non-economic loss was decided by considering the elements:
- the findings of evidence pertaining to the loss;
- conceiving a ‘most extreme case’; and
- awarding damages between nil and the statutory minimum by a ratio determined by the judge.
Applying these elements, Sirtes J considered that the relevant factors to non-pecuniary losses were that the Plaintiff had a life expectancy of at least 30 more years, and that she claimed a loss at 50% of a most extreme case. Meanwhile, the defendant contended only a 30% economic loss was appropriate. The Court determined that a 37% loss of $297,480 was appropriate, considering the substantial impact on her income.
Past out-of-pocket expenses were agreed upon by the parties during the hearing.
Future out-of-pocket expenses
The plaintiff sought $69,678 in future losses, determined from her medical assessments, to cover all future MRI scans, joggers and orthotics, and a small travel allowance. The defendant disputed the sum, asserting that only $43,500 based on independent medical assessments was reasonable. The court agreed with some of the claimed expenses, awarding $55,772.
Past loss of earnings
The plaintiff sought $683,064 for past loss of earnings, claiming the maximum amount under s 12 CLA per week, minus actual earnings over the period where the plaintiff had been injured. The plaintiff relied on the report of a forensic accountant who, after being instructed to calculate income based on her reduced capacity, found that her annual earnings suffered a considerable decline.
The court rejected the accountant’s report in favour of the defendant’s contention that the plaintiff’s tax returns indicated no loss of earnings over the period. The plaintiff’s remuneration from dual sources was not proven to have declined overall. Any measurable dips in the plaintiff’s company’s profits were followed by a rebound, and the plaintiff’s mean wages continued to increase in the years following her injury. The defendant reasoned that only $45,000 rather than the plaintiff’s claim of $683,064 was reasonable, and the court agreed.
Future diminution of earnings
Earnings
Similarly, the legal principles were not in dispute, but the amounts were. The court approached the question by referring to Barwick CJ’s approach in O’Brien v McKean (1968) 118 CLR 540 at 545–546, “fair compensation for [loss of earning capacity] is to be determined as a matter of judgement and not of calculation. But it is of course to be an informed judgement.”
The plaintiff claimed over $1 million in future losses. Wary of over-compensating, the court rejected this calculation. Even if the plaintiff were to continue her architecture practice as a consultant (charging $160 per hour) and make extensive future profit (which was unlikely, as her work was always complementary to the more profitable construction side of the company), alongside her heritage work, such a huge sum was not measurable or concrete enough to induce costs. The claim that every possible working hour lost by the plaintiff was compensable was an excessive one.
Age of Retirement
As to the plaintiff’s retirement age, while the court contended that 65 years was a realistic age, the court found that her working age could have continued until 70 years if not for the injury. Thus, compensation up to this point was included in the calculations.
Residual Earning Capacity Evidence
The extent to which the plaintiff was incapacitated was disputed.
Two medical experts for the plaintiff found that, due to her limited ability to sit, stand and walk while carrying out both heritage work and design work, she would be forced to cease work 5 years earlier than she would have, had the injury not occurred. They found that her total working hours were reduced to no more than 20 hours per week due to her injury. A psychiatrist for the plaintiff diagnosed her with anxiety causally connected to the injury, which left her unsuited to stressful or burdensome employment. This would continue to worsen overtime and cause premature retirement.
The defendant’s medical experts disagreed, finding that the plaintiff could continue until retirement on a full-time basis, provide she limited manual handling of heavy items, avoided strenuous walking on uneven ground, and took rest breaks. A claim justifying residual capacity was unfounded.
These divergent medical opinions left the court with a difficult task. It eventually found that since the injury, the plaintiff’s health and capacity to work had decreased. However, it was stabilised and was not likely to worsen. Thus, her residual capacity was limited to 24 hours of work per week, averaging 4 hours per day, but she was likely to be able to continue working until age 70, not age 65. The buffer sum of $100,000 proposed by the defendants was not accepted by the judge, who favoured a fairer sum of $350,000. The court recognised the plaintiff’s expertise and future earning capacity but could not account for the mere possibility that she might have earned $1 million if she had engaged in full-time work as an architect.
Past care
To cover the cost of commercial cleaners hired in her home and the gratuitous care given by family post-injury, the court was satisfied with the plaintiff’s claim and awarded $67,123 for past care.
Future care
The parties’ experts agreed that plaintiff required 2.5 hours of weekly cleaning assistance. They disagreed that she required a driver for long distances, and garden maintenance hire for 15 hours per year. The court permitted 10 hours of commercial gardening service plus other considerations, awarding damages of $127,820 for future care.
Conclusion
In summary, this decision considered the various heads of damages, alongside contributory negligence, to determine a fair sum for all losses incurred as a result of the injury.
The parties agreed to a 10% deduction of the final sum for contributory negligence. The final sum of damages awarded was $907,375.50, plus costs.
For further reading, the full judgement can be found here: https://www.caselaw.nsw.gov.au/decision/19fd9d66b09ecca4de6efbba
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