The approach to payment of superannuation in Work Injury Damages claims was looked at in the case of Najdovski v Crnojlovic 2008 where it was found that superannuation is payable on the gross loss of income not net loss. The Court adopted an approach of using 11% of the net loss of superannuation to take into account that super is paid on gross loss and also different taxation treatment of such income.

As a result of the increase in superannuation over the coming years the 11% figure applies to super payable at 9%. When assessing future loss of superannuation we need to “gross up” the future loss which means the percentage used depends on the years to retirement and can be between 11.61% and 14.16%.

For example; 5 years to retirement is 11.61%, 10 years is 12.44%, 20 years is 13.44% and 30 years is 13.85% and so on up to 14.16%.