Dyldam Developments Pty Limited v Jones [2008] NSWCA 56

https://www.caselaw.nsw.gov.au/decision/549fe4d83004262463c29252

65 Mr King SC for Bricklaying submitted that the primary judge made errors in the calculation of economic loss. He submitted that, having regard to the income tax returns that were produced and the wages actually received prior to 20 February 2003, there was no justification for adding an amount for overtime and indeed no justification for going above the $646 per week average over the 33 weeks prior to the accident. He pointed out that the net figure was about $30 too high in any event. He submitted, even accepting that the rates for future economic loss should be as determined by the judgment, the future economic loss should have been calculated at $850 per week rather than the $930 adopted by the judge. In any event, he submitted, the rate adopted in the judgment was too high, for reasons similar to those put in relation to past economic loss.

66 In my opinion, it was erroneous for the primary judge to have paid no regard to the plaintiff’s record of earnings, as disclosed by his tax returns and as disclosed by the records concerning the 33 weeks prior to the accident. Those were important matters, and if they were to be totally disregarded, they needed to be explicitly addressed and reasons given for disregarding them. The failure of the plaintiff to lead satisfactory evidence concerning his pre-accident employment earnings, and to give any explanation for the earnings shown in the income tax returns, means in my opinion that uncertainties created by this absence of evidence should not be resolved in the plaintiff’s favour.