Dyldam Developments Pty Ltd v Jones  NSWCA 56
Giles, Hodgson and Basten JJA
In assessing economic loss, an Assessor or a Judge is
required to explain why the assessment is not based upon
historical earnings, such as , if some other basis, such as
average weekly earnings, is utilised.
An Insurer may argue that historical earnings must be
used to assess loss of earning capacity absent compelling
reasons to do otherwise.
The NSW Court of Appeal handed down its decision in
Dyldam Developments Pty Ltd v Jones on 8 April
Whilst the Appeal dealt with a number of issues, of most
importance to motor accident practitioners is the Court of
Appeal's discussion of the assessment of economic
The Defendant argued that the trial judge erred in assessing
the Plaintiff's economic loss by reference to average
weekly earnings, in circumstances where the Plaintiff's
tax returns disclosed lower earnings in the years prior to the
At the time of his accident, the Plaintiff was 29 years of
age and was employed as a bricklayer. The Plaintiff was injured
in a work accident on 20 February 2003.
The Plaintiff produced tax returns for the years ending 30
June 2000, 2001 and 2002 which disclosed average net weekly
earnings of $267.31, $391.48 and $97.17 respectively. There was
also evidence that between 1 July 2002 and the accident on 20
February 2003, the Plaintiff earned an average of $562 net per
Notwithstanding these historical figures, the trial judge
found a loss of $850 net per week for the past and assessed
future loss of earning capacity at $930 net per week.
Court of Appeal
In the Court of Appeal, the leading Judgment on this issue
was delivered by Hodgson JA.
At paragraph 66, his Honour held that the trial judge erred
in her assessment of economic loss, as follows:
"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
Justices Giles and Basten agreed with Hodgson JA.
Insurers are frequently faced with Schedules of Damages
which claim past and future economic loss based upon average
weekly earnings or other sums which are not supported by the
Claimant's historical financial records.
Whilst an Assessor or a Judge may assess loss of earning
capacity in a sum which differs from the Claimant's
historical earnings, Dyldam Developments is authority
for the proposition that caution should be exercised in doing
so and that reasons must be given.
An Insurer is entitled to argue that past and future loss of
earning capacity should be based upon the Claimant's
historical earnings in the absence of compelling reasons to do
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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