JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DAVEY -v- ALLENDER [2005] WADC 213
CORAM: COMMISSIONER KEEN
HEARD: 29, 30 & 31 MARCH, 31 AUGUST, 1 & 2 SEPTEMBER 2005
DELIVERED : 16 NOVEMBER 2005
FILE NO/S: CIV 2824 of 2003
BETWEEN: JOHN WALTER DAVEY
Plaintiff
AND
BRETT MICHAEL ALLENDER
Defendant
Catchwords:
Motor vehicle accident - Quantum award of damages - Future economic loss - Incidence of tax on income earned overseas - Turns on own facts
Legislation:
Income Tax Assessment Act 1936
Motor Vehicle (Third Party Insurance) Act 1943, s 3C
Result:
Damages awarded to the plaintiff for $622,889
Representation:
Counsel:
Plaintiff: Mr K S Pratt
Defendant: Mr J P Olivier
Solicitors:
Plaintiff: Trewin Norman & Co
Defendant: Talbot & Olivier
Case(s) referred to in judgment(s):
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;
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- AGLC
- Davey v Allender [2005] WADC 213
- Case
- [2005] WADC 213
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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