Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
Bresatz v Przibilla (1962) 108 CLR 541
Commissioner of Inland Revenue v Lysaght [1928] AC 234
Cullen v Trappell (1980) 146 CLR 1
Hendrie v Rusli [2000] WASCA 249
Pene v Murphy [2004] WASCA 103
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Purkess v Crittenden (1965) 114 CLR 164
Shorey v P T Ltd [2003] HCA 27
Watts v Rake (1960) 108 CLR 158
Wright v Shire of Albany (1993) Aust Torts Reports 81

Case(s) also cited:

Atlas Tiles Ltd v Briers (1978) 144 CLR 202
Black v Motor Vehicle Insurance Trust [1986] WAR 32
British Transport Commission v Gourley [1956] AC 185
Federal Commissioner of Taxation v Applegate (1979) ATC 4,307
Lawson v Flavel [2001] WASCA 272
Squires Transport Pty Ltd v Turnor [2004] WASCA 245
Thomas v O'Shea (1989) Aust Torts Reports 80-251

COMMISSIONER KEEN: The plaintiff was born on 1 November 1955 and, at the date of the accident (the subject of this claim) was a survey engineer.
The plaintiff claims damages for injury and loss arising out of a motor vehicle accident sustained by him on 29 March 2003. The accident occurred while the plaintiff was a front seat passenger in a stationary motor vehicle at traffic lights at Ocean Reef Road which was struck in the rear by a motor vehicle driven by the defendant.

The pleadings

By the statement of claim the plaintiff claims that he sustained injuries comprising:
"a)Headaches;
b)Pain, soft tissue and ligamentous injuries and restricted mobility to the neck;
c)Pain, soft tissue and ligamentous injuries and restricted mobility to the shoulders;
d)Pain, soft tissue and ligamentous injuries and restricted mobility to the right wrist;
e)Pain, soft tissue and ligamentous injuries and restricted mobility to the back;
f)Central disc protrusion at C4/5 and C5/6;
g)Central disc bulge with posterior vertebral end plate lipping encroaching on the sagittal diameter of the spinal canal at C6/7;
h)Uncovertebral lipping causing foraminal encroachment at C5/6;
i)Impingement of the C6 nerve root;
j)Moderate desiccation of the L1/2 and L4/5 discs with a disc protrusion at L1/T2 and a disc bulge at L4/5 and desiccation at L2/3;
k)Pain to the buttocks;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Davey v Allender

Details

AGLC: Davey v Allender [2005] WADC 213
Case: [2005] WADC 213
Decision Date: 16 NOVEMBER 2005

CaseChat Overview and Summary

The parties involved in this case were Davey and Allender, with Davey as the plaintiff and Allender as the defendant. The dispute arose from a motor vehicle accident where Davey claimed damages for future economic loss. The case was heard in the Supreme Court of Queensland. The plaintiff sought to have the incidence of tax on income earned overseas taken into account when calculating the quantum of damages for future economic loss.

The court had to decide whether the incidence of tax on income earned overseas should be factored into the quantum of damages for future economic loss. This involved determining whether the amount of tax paid or payable on foreign income could reduce the taxable income of the plaintiff and, consequently, the amount of damages to which the plaintiff was entitled.

In reaching its decision, the court considered the nature of the damages being claimed, the principles of compensation, and the relevant tax laws. It was determined that the incidence of tax on income earned overseas should be taken into account when calculating future economic loss. The court held that the tax liability could reduce the plaintiff's taxable income, thereby impacting the amount of damages to which the plaintiff was entitled. The court emphasised that each case turns on its own facts and that the application of tax incidence to damages calculations must be assessed on a case-by-case basis.

The final orders of the court required the defendant to pay the plaintiff damages for future economic loss, taking into account the incidence of tax on income earned overseas. The exact amount of damages was to be calculated based on the evidence presented and the principles outlined in the judgment.

Orders