Thank you for all of the email feedback. A number of people asked whether any labour market evidence was required if the “reasonably accessible” labour market test does not apply.

“Employability”

“Employability” is invariably stated to involve the existence of “real” and not “hypothetical” “jobs”. A review of the Authorities suggests that the key factors the Courts consider when asking whether or not proposed work options are “real” and not “hypothetical” are whether they are jobs:
Real Jobs (Existence) and Real Prospects

1. which are within the member’s physical capacity; and
2. which are within the member’s psychological capacity; and
3. which have tasks requirements which are within the members transferable skills based on their education, training and/or experience (ETE); and
4. which actually exist in practice; and
5. which the member would have a real prospect of obtaining, performing and holding in the open labour market;
   1. given their capacity as above, and,
   2. given where the jobs are located relative to them (reasonably accessible).

Labour market evidence goes principally to the issues of the “existence” of real jobs which the member can safely perform physically, psychologically and within their transferable skills, and to the “prospect” that they can actually obtain such a job, including both the assessment of their prospect as a job seeker for a job which exists and the investigation of whether those jobs exist where they live.

A person may be capable of obtaining and performing work as a miner, but if they live in the middle of a capital city it may not be a reasonably accessible job.

Viewed in that light the “reasonably accessible” element is an additional limiting factor on the “labour market” tests of existence and prospects, and severable from it.

Evidence of existence and prospects required

Given that the Insurer bears a reversed evidentiary onus to establish “employability” after the member makes a prima facie case by reference to their pre-injury or illness job I would suggest that labour market evidence establishing existence and prospects is still required.

Relevant Labour Market

That raises the question of what labour market may be considered to establish existence and prospects.

Given that an insurance contract should be given a business like interpretation considering the language, commercial circumstances and objects of the contract, if the “reasonably accessible” test based on home address is excluded that would arguably encompass a labour market including at least the State or Territory of the member’s current residence, possibly any State or Territory of residence since the date for assessment, and once the concept of moving for work is accepted then arguably all of Australia.

Bruce Smith

Questions or feedback welcome to: BSmith@expertexperts.com.au or brucesmith@jackshand.com.au

This is not legal advice. I regularly conduct discussion groups on discrete issues in different areas of expert evidence to promote thinking amongst expert witnesses. It’s been suggested my synopses might be of interest to others. If they are I’ll post more.

Seminars: I regularly present seminars on different areas of expert evidence for the Law Society of NSW, sometimes with experts in those fields. I am open to presenting these seminars in-house to larger firms and insurers for whom sending large numbers of people to the Law Society seminars is not practical.

Next Law Society seminar is 12 September 2017:

Dealing with clients with (possible) impaired mental capacity: with Therese Catazariti of 13 Wentworth, Professor Coyle and Alicia Tyler psychologists.

http://eshop.lawsociety.com.au/index.php/catalog/product/view/id/3920