With thanks to David Higgs SC for drawing my attention to Smith v Alone  NSWCA 287 which is of interest for its appellate consideration of burden of proof issues in relation to residual earning capacity and vicissitudes. Future commercial care was also considered.
The trial judge had reduced the claimant’s damages on the basis that, after a period of treatment, he would have residual earning capacity, The trial judge had also discounted damages by 35% for vicissitudes on the basis of consequences of the claimant’s alcohol addiction and had declined to award damages for the cost of future commercial care where that care had been provided in the past by family members.
Macfarlan JA, with Meagher and White JJA agreeing, at  discussed the evidentiary burden:
It was necessary for the primary judge, guided by the evidence, to make a practical assessment of the likelihood of the appellant being able to obtain and retain the jobs that the respondent postulated would be suitable for him (Nominal Defendant v Livaja  NSWCA 121 at ; Mead v Kerney  NSWCA 215 at– ; South Western Sydney Local Health District v Sorbello  NSWCA 201 at ). In this regard the respondent bore “the evidentiary burden of adducing evidence of what work the plaintiff is capable of performing and what jobs are open to a person with such capacity” (emphasis added) (Kallouf v Middis NSWCA 61 at ; Mead v Kerney at ; South Western Sydney Local Health District v Sorbello  NSWCA 201 at ).
The trial judge had found that after the expiration of a two year period during which the appellant would undertake pain management/substance abuse withdrawal treatment, he would be able to earn an estimated $250 per week which would reduce his estimated future economic loss from $1,000 net per week to $750 net per week. In that regard at :
Implicit in this finding is an assumption that the pain management and substance abuse withdrawal treatment would be effective to overcome the appellant’s present pain and his addiction to the drug Oxycontin. However, the validity of that assumption was not supported by the evidence. In particular, no-one who had the expertise to make good that assumption, for example a pain management expert or drug addiction treatment expert, was called to give evidence.
As regards the appropriate allowance for vicissitudes, at :
The decision to allow a particular discount is an evaluative decision to which the principles in House v The King (1936) 55 CLR 499;  HCA 40 are applicable. Thus, in the absence of specific error (of which none is identified here), such a decision will not be reversed on appeal unless it is found to be “unreasonable or plainly unjust”. To my mind, the primary judge’s allowance of 35% was however unreasonable in this sense. The point is very much one of impression, but it seems to me that an increase from 15% to 25% (which represents an increase of two-thirds of the normal percentage) would adequately account for the above average vicissitudes that the appellant would have been likely to face but for the accident. I take into account in this respect that the appellant had been drinking alcohol heavily for some years prior to the accident, yet had been able to earn substantial income in most years. The risks he faced in the future were undoubtedly higher than those an average person would have faced, but I do not consider that they should be regarded as more than double those facing the average person. After all, the average person can hardly be regarded as a paragon of virtue when it comes to heavy drinking.
In relation to commercial care, it was noted at  that as Basten JA (with the concurrence of Meagher JA) stated in White v Benjamin (2015) 70 MVR 188;  NSWCA 75 at , consideration must be given to a plaintiff’s family circumstances for the purpose of determining whether commercial care will be needed in the future. Basten JA said (at ) that “although there is a significant chance that commercial assistance will not be obtained, a greater reduction would be self-fulfilling”: that is, if the plaintiff’s damages were reduced further, she might be unable to afford commercial assistance and therefore not be able to obtain it, however much she wanted or needed it.
Macfarlane JA then concluded at :
In the present case, I consider that the appellant has established a need for commercial care and assistance for the hours that I have identified above. As I noted earlier, his primary carers are his two sisters. They have their own full-time jobs and families (each having two children) and live at a distance from the appellant. It is reasonable to assume that if the appellant has funds available to pay for commercial assistance he will use them to obtain that assistance. Clearly, he is embarrassed by having to rely on his sisters. He said in evidence that he did not like his family and friends having to take time out of their lives to help him and that he would replace their services with those from commercial providers if he had the money to do so (T 53). He also commented that it was “hard on Rebecca [the sister who is his main carer], she works 40 hours a week as well” (T 54).