By Tara Plumbe, Partner and Angus Lau, Lawyer

In the recent decision of Fuchs v Coles Supermarkets Australia Pty Ltd [2026] NSWSC 948, Sirtes J, the Supreme Court of NSW (the “Court”) reminded litigants that even where a plaintiff proves genuine long-term incapacity, substantial economic-loss damages will not follow unless the plaintiff can provide evidence demonstrating a real financial loss attributable to that reduced earning capacity.

The Accident

Suzanne Fuchs, slipped forward after stepping on some oily liquid whilst shopping for a cake topper in a Coles supermarket. Due to the accident, the Plaintiff suffered an avulsion tear of the right hamstring tendon which required several surgical procedures.

Proceedings

The Plaintiff initially commenced proceedings in the District Court bringing an action in negligence against Coles. The case was transferred to the Supreme Court because the potential quantum exceeded the jurisdictional limit of the District Court.

The Defendant eventually admitted liability and the Court was left with the question of damages.

The parties submitted the following assessments:

 

	Plaintiff	Defendant
Non-economic loss	$402,000	$185,000
Past out-of-pocket expenses	$65,000	$65,000
Future out-of-pocket expenses	$69,678	$43,500
Past loss of earnings	$683,064	$45,000
Future loss of earnings	$1,019,833	$100,000
Past care	$67,123	$60,000
Future care	$231,762	$75,000
Total	$2,538,460	$573,500

 

The Court noted that the significant disparity of almost $2m mainly comprised:

• non-economic loss;
• past loss of earnings;
• future diminution of earning capacity; and
• future care.

Past Economic Loss

Prior to the accident, the Plaintiff worked as an architect for both a heritage consultancy firm and a business that the Plaintiff co-owed with her husband (P&S Design and Construction Pty Limited) (“P&S”).

The Court noted that the disparity for past loss of earnings was caused by the method of calculation used by the parties’ experts.

The Court reaffirmed the position that income derived through dividends is no impediment to the establishment of loss. However, “Only dividends that genuinely reward a person’s exertion will be captured. Where dividends constitute a return on invested capital of the Plaintiff or on the labour of others, they are not a measure of the Plaintiff’s earning capacity and thus cannot be a measure of loss caused by a reduction in earning capacity through injury.”

According to P&S’s business records, P&S did not suffer any downturn for a period of approximately 14 months after the incident, nor had the Plaintiff’s earning capacity decreased as a result of the injury.

The Plaintiff initially claimed $464,468 but later increased the claim to $683,064. The Defendant submitted there should be no allowance as the financial records failed to reveal any loss but ultimately conceded a minor loss of $45,000 for a single financial year.

There was a significant contest between the forensic accounting experts.

The Court accepted the Defendant’s submission that much of the claimed loss identified by the Plaintiff’s expert was generated not by any decline in the Plaintiff’s earnings but by the asymmetry in the expert’s own methodology.

The Court ultimately accepted the Defendant’s submissions and awarded $45,000.

Future diminution of earning capacity

The Plaintiff initially claimed $945,701 based on her expert’s report. During closing submissions, the claim was increased to $1,019,833, abandoning the assumptions, methodology and conclusions of her expert in favour of different assumptions. The Defendant conceded a buffer of $100,000 and argued that the revised calculations of the Plaintiff were riddled with assumptions unsupported by evidence.

His Honour stated:

“I am unable to accept the Plaintiff’s scenario in support of her claim for future economic loss as a reliable measure of damages. It is compromised. There are too many uncertainties and it requires me to accept the application of a private-heritage fee rate, applied to a practice that she has never run, at full billable utilisation, gross of tax and overheads, without vicissitudes, and with no allowance for holidays or time off. There is no evidence of or submissions made in relation to these matters. I consider that, if I were to adopt that approach, it would overcompensate the Plaintiff over the course of a very lengthy period of time.”

The Court was however prepared to award a buffer. In doing so findings had to be made regarding retirement age (70) and residual earning capacity (24 hours per week over 5 or 6 days).

The Court awarded a buffer of $350,000 for the following reasons:

• “…the Plaintiff would, in her 60s, have undertaken valuable work, either as a heritage consultant (possibly on a full-time basis) or through an amalgam of heritage and architectural work………… However, I do not consider that she would necessarily have worked full-time and I have made allowance for vacations, time off and periods of downturn or quiet in her practice; and

 

• the Plaintiff is a highly credentialed professional. In the sphere of her qualifications and the hourly rate that she could command, which could easily exceed $160 per hour, a sum of $100,000 over the course of over 10 years is a rather meagre sum which appears to represent the lowest, tokenistic sum proposed by the Defendant.”

Future Care

Another major disparity was the allowances for the Plaintiff’s future care – $231,762 v $75,000.

The Plaintiff’s expert adopted the rates for domestic assistance prescribed by NDIS ($58.03 ph). However, the Defendant’s expert Occupational Therapist pointed out that the Plaintiff was not a NDIS participant and that the NDIS prices are upper limits. These amounts apply to registered providers and incorporate specific overheads, supervision and reporting obligations which are not applicable to commercial services of the kind the Plaintiff engaged. The Defendant’s OT used a rate of $35 ph, being the rate charged by the Plaintiff’s current cleaner because “[the Plaintiff’s] own purchasing power is the best available evidence of the market rate.”

The Court allowed $40 ph for an agreed 2.5 hours per week, totalling $127,820.

Takeaway

The decision demonstrates the importance both for plaintiffs and defendants, when retaining experts, to be very careful with the assumptions their experts are asked to make and ensuring that credible evidence is able to be adduced to support those assumptions.