Dwight v Bouchier & Ors [2003] NSWCA 3
51 His Honour’s approach in accepting the reality of the business is consistent with that of the High Court in Husher v Husher (1999) 197 CLR 138 at 147 – 149 regarding the assessment of lost earning capacity. In the joint judgment the following was said:
52 The court stressed the importance of the facts in each case. Their Honours said:
53 In my opinion, there is no reason why the approach of the High Court in Husher, based on the particular facts of this case, should not be extended to corporations.
54 In my opinion his Honour was entitled to look to the realities of the situation. In this case the reality was that the business was a family partnership to which the deceased contributed the lion share. His Honour was not obliged to confine himself to the tax returns in assessing the deceased’s pre-accident income. He was obliged to consider the evidence as a whole, including the first respondent’s oral testimony.
55 It was also submitted on behalf of the appellant that his Honour made no allowance for the possibility that back taxes, penalties and interest might be charged by the Taxation Office.
56 In McIntosh v Williams [1976] 2 NSWLR 237 at 245 Moffitt P considered that the chance of discovery of undisclosed earnings and the imposition of back taxes and penalties was a contingency which should have been allowed for in the assessment of damages.
57 In this case the trial judge reduced the figure of $1,000 per week gross by the applicable tax to a net figure of $635 p.w., back dated to the accident. The judge allowed a 10% reduction for contingencies. He did not specifically include the adverse contingency relating to possible back taxes and penalties. I do not see that this matters. If the Commonwealth believes that it has cause, it can proceed against the estate of the deceased and the first respondent and seek the payment of any back tax and imposition of penalties. If this occurs, those amounts will be liable to be paid. It seems to me that the contingency allowed was sufficient to include the possibility of successful action by the Taxation Office.
58 In giving reasons his Honour made it plain that he was seeking to compensate the first respondent and the children for the loss of her husband’s income which she suffered ‘as a wife’ and not as a business partner.