I came across a matter from Australia, Victoria whilst doing capacity research and found it interesting to note that in terms of the Australian Accident Compensation Act a plaintiff shall not claim compensation for personal injury for pain and suffering and/or loss of earning capacity if the injury is not “very considerable” It further needs to be permanent and likely to persists in the foreseeable future and will last and not mend or repair or at least not to any significant extent. The plaintiff has to further establish a loss of earning capacity of more than 40% by comparing after injury earning with before scenario after suitable training (being hardening or retraining).
It is only once this has been established on an application procedure that the plaintiff is then allowed to proceed to trial to proof the quantum. It seems to be a very good way in which to reduce legal costs overall and to weed out claims early on that are not worth the disbursements that would be expended on it. It would certainly free up time in the courts.
What I found interesting though was the difference that is clearly present in that of a loss of productivity versus a loss of earning capacity which is often used interchangeably in our case law and day to day dealings with each other in negotiations. I have always maintained that their is a difference between not having the capacity to do the work and not being productive to do the work and feels that their should be such a distinction and that a lack of capacity should translate into compensation which could conveniently be correlated with a contingency deduction that should be in line with the amount of loss of capacity rather than looking at a pure economic loss in terms of hours in the day or increasing the general damages as per the much reviled Deysel case.
The Collins Thesaurus Dictionary definition of productivity is “output” but also productions, capacity, work rate, yield and efficiency whereas the definition for capacity is “ability” and also gift, genius, capability, aptitude, aptness, competence and competency. If one looks at it in terms of this meaning then my interpretation would be that productivity requires expending energy (of a physical nature) so to speak whereas capacity requires capability (both physical and psychological).