Tinkler v. Federal Commissioner of Taxation.

Judges:
Jenkinson J

Court:
Supreme Court of Victoria

Judgment date: Judgment handed down 10 October 1978.

Jenkinson J.: Appeal pursuant to sec. 187(1)(b) of the Income Tax Assessment Act.

On 10th May 1974 the appellant was injured as a result of a motor car accident. She was a young single woman in clerical employment and her injuries prevented her from working throughout the year of income which ended on 30th June 1975. The accident occurred in this State in circumstances which made applicable to her Pt. III of the Motor Accidents Act 1973. Application having been promptly made on her behalf to the Motor Accidents Board, which was established pursuant to Pt. II of that Act, for payments under Pt. III, sums aggregating $2,371.20 were paid to her by the Board during that year of income in compliance with the provisions of sec. 25(1) of the Act.

In making assessment of the appellant's taxable income of that year of income the Commissioner treated those sums (which by reason of an error immaterial in this appeal were taken as aggregating $2,366 for the purposes of assessment) as assessable income of the appellant; and he disallowed so much of her objection to the assessment as related to the inclusion of those sums in her assessable income.

Mr. Forsyth Q.C., who appeared with Mr. Myers for the appellant, submitted that the payments by the Board to the appellant were receipts of a capital nature and that neither sec. 26(j) of the Income Tax Assessment Act nor any other provision of that Act operated to bring them within ``assessable income'' of the appellant. For the Commissioner, Mr. Sweeney submitted that the payments were included in her assessable income by virtue of sec. 25(1)(a), or alternatively by virtue of sec. 26(j).

Section 25, in Pt. III of the Motor Accidents Act 1973, provides: -

``25.(1) Where a person injured as a result of an accident suffers a loss of income in the capacity of employé by reason of the injury and makes an application under this Act for payments under this sub-section in respect of the loss of that income, that Board shall, subject to this Act, pay to that person an amount calculated in accordance with the formula 4AW/5 where -

A is the amount of the average weekly income of that person as an employé in accordance with section 20;

ATC 4567

and

W is the number of weeks during the period of incapacity of that person.

(2) Where a person injured as the result of an accident suffers by reason of the injury a reduction in his capacity to earn income by personal exertion and makes an application under this Act for payments under this sub-section in respect of that reduction in capacity, the Board shall, subject to this Act, pay to that person an amount calculated in accordance with the formula 4BW/5 X C where -

B is the amount of the average weekly personal exertion income of that person in accordance with section 21;

C is the average proportion by which the capacity of that person to earn income by personal exertion was by reason of the injury reduced during the period of incapacity of that person; and

W is the number of weeks during the period of incapacity of that person.

(3) The Board shall not pay to a person injured as a result of an accident an amount that exceeds -

(a) the amount of the sum of the amounts referred to in sub-sections (1) and (2) less four-fifths of the amount of income received by or due to that person in the capacity of employé in respect of the period of incapacity of that person less four-fifths of the amount required to be deducted from that amount of income by employers under Division 2 of Part VI of the Income Tax Assessment Act; or

(b) $200 multiplied by the number of weeks during the period of incapacity of that person -

whichever is the lesser.

(4) In determining for the purposes of sub-section (2) the average proportion by which the capacity of a person to earn income by personal exertion is reduced during that period by reason of an injury resulting from an accident, the Board shall have regard to all relevant matters and in particular to -

(a) the nature of the injury and the extent of capacity resulting from the injury during that period;

(b) the amount of the average weekly personal exertion income; and

(c) the amount of income from personal exertion within the meaning of sub-section (3) of section 21 received by or due to the person during that period -

and may take into account medical evidence and the opinion of a medical practitioner relating to the injury.

(5) Where it appears to the Board that a person injured as a result of an accident who makes an application under this Act for payments under sub-section (2) has, by reason of the injury, suffered a reduction in his capacity to earn income by personal exertion but has not, in the opinion of the Board, suffered a material loss of income by reason of the injury, the Board may, by notice in writing given to that person, refuse the application or, for such period as it states in the notice, defer determination of the application.

(6) An appeal lies to the Tribunal against the refusal or deferring of an application by the Board under sub-section (5).

(7) In this section `period of incapacity' in relation to a person who is injured means the period or periods during which -

(a) a loss of income in the capacity of employé; or

(b) a reduction in the capacity of that person to earn income by personal exertion -

is suffered by that person by reason of the injury but does not include -

(c) a period that, or several periods the aggregate of which, exceeds 104 weeks;

(d) a period after the expiration of the period of five years after the date of the accident from which the injury resulted; or

(e) a period after the death of the person.''

Section 22(1)(a) of the Motor Accidents Act provides: -

ATC 4568

``22.(1) Subject to this section, a person who is injured as the result of an accident may make application in the prescribed form to the Board -

(a) for payments under section 25 at any time within the period of three years after the date of the accident.''

Section 20 provides: -

``20.(1) A reference in this Part to the average weekly income of a person as an employé who is injured or dies as a result of an accident is a reference to -

(a) the amount of the weekly income of that person calculated in accordance with sub-section (2); or

(b) $250 -

whichever is the lesser.

(2) For the purposes of sub-section (1), the weekly income of a person who is injured or dies as the result of an accident is the weekly average of the amount of salary or wages received by or due to that person in the capacity of employé -

(a) during such period as the Board determines, not being less than one week and not more than 10 weeks, before the day on which the accident occurred;

(b) during the year ending on the day preceding the day on which the accident occurred; or

(c) during the last year of income within the meaning of the Income Tax Assessment Act that ended before the day on which the accident occurred -

whichever the Board determines, less the amount required to be deducted from that amount of salary or wages by employers under Division 2 of Part VI of the Income Tax Assessment Act.''

Section 3(4) provides: -

``3(4). For the purposes of this Act, a reference to the salary or wages of a person during a period is a reference to the gross amount due to that person in respect of that period as salary, wages, commission, bonuses or allowances, whether payable at piecework rates or otherwise and includes -

(a) an amount paid or payable to that person in respect of that period -

(i) under a contract wholly or substantially for the labour of that person;

(ii) by a company by way of remuneration to that person as a director of that company;

(iii) in respect of sick leave, annual leave or long service leave;

(iv) by way of superannuation, pension or retiring allowance; or

(v) by way of commission to that person as a canvasser or collector; and

(b) an amount paid or payable or contributed in respect of that person in respect of that period by an employer of that person under a superannuation, pension or retirement scheme.''

The amount specified in sec. 20(1)(b) was increased to $250 by an amendment which came into operation during the year of income which ended on 30th June 1975. Other amendments of a similar kind were made during that year of income, but they will not be the subject of further mention because nothing of relevance to this appeal arises out of them.

Section 28 provides: -

``28. Where the Board is satisfied that a person who is injured or dies did not receive income during the period of ten weeks before the date of the accident from which the injury or death resulted by reason that -

(a) during that period employment reasonably suitable for that person was not reasonably available; or

(b) that person was not employed by reason of sickness or such other reason as the Board considers reasonable in the circumstances of the case -

the Board may make payments -

(c) under sub-section (1) of section 25 in respect of a period in respect of which the Board is satisfied that, but for the injury, that person would be likely to receive income; and

ATC 4569

(d) under sections 26 and 27 to a dependent spouse or dependent child of that person -

and, for the purposes of those sections, the average weekly income of that person as an employé is such weekly amount, not exceeding $250, as the Board determines is the average weekly amount, less income tax, that that person would be likely to have received during the period of ten weeks before the accident if he had been employed.''

Section 21 prescribes a means of deriving a value for the letter B in sec. 25(2) by reference to the weekly average of that part of the taxable income - received by or due to the applicant during a period before the accident to be selected by the Board - which is generically designated as ``personal exertion income''. ``Personal exertion income'' is for the purposes of sec. 21 defined as follows: ``in relation to a person means the amount that is the income of that person consisting of earnings, fees, the proceeds of a business carried on by that person either alone or as a partner with any other person, an amount received as a bounty or subsidy in carrying on a business and a profit arising from the sale by that person of property acquired by him for the purpose of profit-making by sale or from the carrying on or carrying out of a profit-making undertaking or scheme less - (i) amounts deductible from that income as allowable deductions (other than concessional deductions) within the meaning of the Income Tax Assessment Act; (ii) salary or wages received by or due to that person in the capacity of employé; (iii) interest, unless that person's principal business consists of the lending of money or unless the interest is received in respect of a debt due to that person for goods supplied or services rendered by him in the course of his business; and (iv) rents or dividends.'' The word ``business'' is declared to include for the purposes of sec. 21 ``a profession, trade, employment, vocation or calling but does not include occupation as an employé.''

During the year of income ended on 30th June 1975 the following provision was inserted in sec. 21: ``Where the Board is satisfied that the average weekly personal exertion income of a person under the foregoing provisions of this section does not properly reflect the actual effect of the result of the accident on the financial position of that person the Board may determine that the average weekly personal exertion income of that person is such amount not exceeding $125 as it thinks just and reasonable in the circumstances.''

Section 25 makes provision for two of the benefits prescribed by Pt. III, all of which afford in some measure recoupment of economic loss sustained in consequence of personal injury caused by or arising out of the use in Victoria of a motor car. The persons for whom the benefits are provided are the persons so injured and the dependent spouses and children of those who die as a result of motor car accidents in Victoria. Upon such dependents entitlement is conferred to amounts calculated by reference to the income before the fatal accident of the person killed and to the amount (if any) paid in respect of the fatal accident to that person before death in pursuance of sec. 25: see sec. 26 and 27. Entitlement is conferred on persons injured as a result of motor car accidents to payment by the Motor Accidents Board of the whole or a specified percentage of the reasonable costs of a variety of goods and services provided to those injured persons in Victoria by reason of their injuries: hospital, ambulance, medical, nursing and other therapeutic services, and medicines and other curative appliances and materials. (See sec. 30 and 31.)

By amendment of the Motor Car Act 1958 it was provided that the fund out of which the Board should discharge the liabilities imposed on it by the Motor Accidents Act was to be derived, in part, from a proportion of the premiums payable under the scheme of compulsory third party motor car insurance which Pt. V of the Motor Car Act prescribes. Before and after the enactment of the Motor Accidents Act the scheme prescribed by Pt. V of the Motor Car Act enabled liability in damages incurred by an owner and a driver of a motor car in respect of death or bodily injury caused by or arising out of the use of the car in Victoria to be satisfied out of one or other of the funds which those premiums alimented. The Motor Accidents Act includes provisions designed to ensure that legal proceedings to recover such damages should not result in the payment out of one of those funds of money in respect of a loss

ATC 4570

or an expense which the Motor Accidents Board is liable under the Motor Accidents Act to recoup: see sec. 79. The Act made provision also to exact, or by agreement to procure, contribution to the fund out of which the Board's liabilities should be discharged from other persons who had incurred, or who might be likely to incur, liability to pay damages in respect of injury or death resulting from the use of a motor car in Victoria, but whose contribution to that fund had not been secured, or was thought not to be in amount sufficiently enlarged, by the statutory diversion of third party premium income to the Board's fund: see Pt. V and sec. 70, 71, 72, 73 and 74.

It was Mr. Forsyth's submission that an amount payable under sec. 25(1) is a compensation for the loss or for the impairment, during a particular period, of a capacity which the injured person had to earn income; and that, as that earning capacity was in contemplation of law a capital asset, compensation for loss or impairment of the capacity was received, not as income, but as a capital sum.

It will be observed that the conception of reduction, by injury, of capacity to earn income by personal exertion is given explicit expression in sec. 25. Mr. Forsyth did not, however, place particular reliance on that circumstance, perhaps because the appellant's entitlement to the payments in question in this appeal derived from subsec. (1) of sec. 25, the verbiage of which does not include reference to a capacity to earn income. He did, however, point to the conception which the use of the words ``an amount'' in subsec. (1), (2) and (3) might be thought to suggest of entitlement to a single sum of money in respect of incapacity during the periods limited by subsec. (7).

Measurement of that ``amount'' by reference to weekly earnings of the injured person before the accident provided no justification for characterising any of the payments as income, it was submitted on the appellant's behalf, and the submission was fortified by reference to reasoning of the kind which was expressed by Dixon and Evatt JJ. in
C. of T. (Vic.) v. Phillips (1936) 55 C.L.R. 144 at p. 156 and by Owen J. in
Barrett v. F.C. of T. (1968) 118 C.L.R. 666 at pp. 671-672.

Section 32, in Pt. III of the Motor Accidents Act provide: -

``Payments by the Board under this Part may be made at such times and by such instalments as the Board determines.''

Subsections (4), (5) and (6) of sec. 22 of the Act provide: -

``4. Where the Board receives an application under this section from a person for payments that do not appear to the Board to be payments that it is liable to make, the Board shall inform that person by notice in writing that it refuses the application for those payments.

5. Where the Board receives an application under this section from a person for payments and does not, within the period of one month after receiving the application -

(a) give to that person notice of refusal under sub-section (4); or

(b) make part of the payments to which the application relates -

the Board shall be deemed to have given to that person a notice of refusal under sub-section (4).

6. An appeal lies to the Tribunal against a refusal of the Board of which notice is given under sub-section (4) or is, under sub-section (2), to be deemed to have been given.''

Mr. Forsyth submitted that the Act afforded the Board power to pay the amount to which entitlement under sec. 25(1) arose by instalments which were few in number and between which unequal periods elapsed. There was in his submission no statutory requirement of that regular periodicity of payment which has been said to assist to characterisation of payments as income. (See
F.C. of T. v. Dixon (1952) 86 C.L.R. 540 at pp. 557, 567-568.)

It will be observed that some constraint may be placed on the exercise of the discretionary power found in sec. 32 by the timing of applications under sec. 22(1) and by the requirements of sec. 22(5). Although the singular expression ``an amount'' is used in subsec. (1), (2) and (3) of sec. 25, the plural number is used, both in sec. 22(1)(a) and in sec. 25(1), in the phrase

ATC 4571

``application... for payments'', as it is also in sec. 26, 27, 28 and 29. Further, sec. 19 in my opinion contemplates that each payment made in discharge of the liability imposed on the Board by sec. 13(1) and sec. 25(1) shall be attributable to a period of days between specific dates.

Section 19 provides: -

``19(1) Where the Board makes a payment under section 25 that relates to a period that is less than a week of seven consecutive days or that consists of one or more such weeks and such a period, the Board shall determine whether, for the purposes of calculating the period of 104 weeks referred to in that section, the period is to be deemed to be a week, such part of a week as the Board specifies or a number of weeks and such part of a week as the Board specifies.

(2) A reference in this Part, except this section, to a week includes a reference to a period that is under sub-section (1) to be deemed to be a week.

(3) Where for the purposes of this Part it is necessary to calculate the number of weeks in a period that includes a period specified under sub-section (1) as a part of a week, the second-mentioned period, expressed as such a part of a week, shall be included in the number of weeks in the first-mentioned period.''

Section 13(1) provides: -

``13(1) Subject to this Part, the Board is liable to make payments under this Part in respect of a person to whom or in relation to whom this Part applies.''

I therefore think that, whether or not regular periodical payments under sec. 25(1) are contemplated by the Act, plurality of payments is contemplated, and that each payment effects the discharge of a separate liability in respect of a particular period of incapacity, and that the expression ``an amount'' in sec. 25(1) and in sec. 25(2) means that amount which is payable in respect of the specific period of which the number of weeks is the value for W in any particular calculation which the Board makes in pursuance of sec. 25(1) or sec. 25(2) in response to an ``application... for payments''. Further, an injured person who is entitled to payments under sec. 25(1) during a substantial period is enabled, in my opinion, to ensure that a payment is made regularly. The value for W would increase each week and application could, if necessary, be made weekly in pursuance of sec. 22(1). Section 22(5)(b) would constrain the Board, after an initial delay of one month, to make some payment each week in response to weekly applications.

Whatever expectation of regularity in payment of money due under sec. 25(1) the other provisions of the Act excite, there can in my opinion be no doubt that the entitlement to that money accrues as the value for W in sec. 25(1) increases, provided application is made in compliance with sec. 22(1). Nor can there be any doubt, in my opinion, that the entitlement derives from ``loss of income in the capacity of employee'' by reason of the injury: sec. 25(1), sec. 25(7)(a) and sec. 20. (The phrase ``in the capacity of employé'' is found, orthographically varied, in the definition of ``income from personal exertion'' in sec. 6(1) of the Income Tax Assessment Act.). And it is clear, I think, that the entitlement thus derived is to an amount ``in respect of the loss of that income'' (to use the phrase which in sec. 25(1) qualifies the word ``payments'') - not only in the sense that the amount has been measured by reference to the diminution of income caused by the injury, but in sense also that the amount is, substantially, a statutory substitute, pro tanto, for the salary or wages lost. And in my opinion an amount to payment of which entitlement arises by force of sec. 13(1) and 25(1) acquires the character of income which the salary or wages had, whether that amount be in respect of a loss of a week's income or of many weeks' income, and whether or not it was received in the course of regular periodic payments.

The words ``employé'' and ``employer'' in the Motor Accidents Act are declared to ``have the same meanings as in Division 2 of Part VI of the Income Tax Assessment Act'', and the words ``salary or wages'' are defined in terms similar to those in which the expression ``salary or wages'' is defined for the purposes of that Division in sec. 221A(1) of the latter Act: see sec. 3(1) and sec. 3(4) of the Motor Accidents Act. Although sec. 3(4)

ATC 4572

operates to include, in the amount for loss of which sec. 25(1) affords compensation, receipts - and, by sec. 3(4)(b) a benefit - which are not in common understanding salary or wages, those receipts and that benefit are not in my opinion of such a character as to put in doubt the conclusion that payments under sec. 25(1) have themselves the character of income in the hands of the recipient. In particular, addition of the amount defined by sec. 3(4)(b) to the amount of salary or wages does not in my opinion falsify the conclusion that sec. 25(1) is to be regarded as making good a loss of income in respect of an identified period.

Mr. Forsyth's submission that the entitlement under sec. 25(1) is to compensation for loss or impairment of a capacity, and not for the loss of income by reference to which the compensation is quantified, was supported by argument that the mischief to remedy which the Motor Accidents Act was enacted was the hardship caused to the victims of motor car accidents by the delay in recovering compensation in common law proceedings out of the funds which compulsory third party insurance provides and by the unavailability of those funds to those victims who are unable to establish liability at common law for their injuries; and by the argument that the integration of the compensatory schemes provided by Pt. V of the Motor Car Act and Pt. III of the Motor Accidents Act, which the latter Act effected, afforded strong grounds for characterising the entitlement under sec. 25(1) of the latter Act in the same way as the Australian courts have in recent times been characterising the entitlement to damages at common law for tortiously caused diminution of capacity to earn income. Mr. Forsyth cited the exposition of that common law doctrine which was given by Dixon C.J., Kitto and Taylor JJ. in
Graham v. Baker (1961) 106 C.L.R. 340 at pp. 346-347. If his submissions had been made a few days later Mr. Forsyth could have cited a more emphatic exposition by Barwick C.J. in
Atlas Tiles Ltd. v. Briers 78 ATC 4536, in these terms: -

``But the plaintiff has not in a relevant sense lost the earnings either in the period before verdict or the future thereafter. He has lost the capacity to earn perhaps the equivalent of his current earnings or perhaps more or less, according to the reasonable expectations of the employment of his earning capacity. If the award of damages for such an injury destroying or diminishing his earning capacity were merely a matter of replacing those earnings, the amount of the award would be taxable; but it is not, for the reason that the award is for a capital loss, however much the amount of the award is quantified by a consideration of what the use or employment of that capacity might be expected to produce. In other words, the assessment of damages for loss of earning capacity is, in truth, an exercise in valuation. It is quite true to say that what that capacity may reasonably be expected to produce is a factor, indeed a major factor, in the process of valuation. Indeed, in some uncomplicated situations it may provide a sure guide to the amount of the valuation. So many cases before the courts concern personal injury to industrial workers which destroys or reduces their capacity to earn. The uncomplicated nature of the financial affairs of such a person and the prevalence of a PAYE system of tax collection have, in my opinion, worked to obscure the matters of principle which fall to be considered in this case...

Some have thought the distinction I have drawn between loss of earnings and loss of earning capacity is illusory or insubstantial. But, in my opinion it is real and radical. A capacity to earn which is not being exercised nor presently intended to be exercised has a value which can be estimated, though no current earnings are available to demonstrate its worth even with approximation. Again, the plaintiff may have been currently employed in an industry which, for some reason or other, was doomed to extinction, or in a capacity which technology was likely to render redundant. Yet retrained, other and more remunerative employment may be available. Earning capacity may produce not merely earnings, but a satisfactory way of life which, being denied or destroyed, may need to be reflected in the value of the capacity. In my opinion, the distinction I make is not a matter of semantics, but basically conceptual.''

It will be apparent that these arguments of Mr. Forsyth find more support in the

ATC 4573

verbiage of subsec. (2), (4), (5) and (7)(b) of sec. 25 than in the words of sec. 25(1). I have not to determine whether payments received under sec. 25(2) would be income of the recipient for the purposes of the Income Tax Assessment Act. It is sufficient to say that I do not find in the provisions of subsec. (2), (4), (5) and (7)(b) of sec. 25 reason to characterise payments received under sec. 25(1) as compensation of the kind which Barwick C.J. so clearly describes in the passages I have read from his reasons for judgment in Atlas Tiles Ltd. v. Briers, supra. I think the verbiage of those subsections to have been adopted for its usefulness as a drafting device rather than as an expression of conceptual identification with common law doctrine. But whatever similarity may be discerned between a payment received in pursuance of sec. 25(2) and so much of a common law award of damages for personal injury as relates to impairment of earning capacity, I am unable to find in the provisions of the Motor Accidents Act a basis for regarding a payment received in pursuance of sec. 25(1) as a receipt of a capital nature. Those provisions in my opinion afford no basis for treating payments under sec. 25(1) - singly or in the aggregate - as compensation for a capital loss, or as compensation for loss or impairment of an evaluated capacity.

As to the mischief against which the Motor Accidents Act was framed: for all that its long title or its provisions disclose, the legislative objects may have been no less the alleviation of economic hardship to motor accident victims with no right to damages at common law and the discouragement from resort to common law actions of those with minor injuries or doubtful common law claims than the supplementation of remedies for those whose compensation is to be provided by a common law judgment for damages.

Attention was drawn by Mr. Forsyth to the circumstance that the directions given throughout Pt. III of the Motor Accidents Act for the calculation of income received by or due to those in respect of whose incapacity or death entitlement to compensatory payments is to be determined are designed to produce amounts approximately equivalent to taxable income, not to assessable income: see sec. 18(1)(b), 20(2), 21(2), 21(3)(b)(i), 25(3)(a), (28). That circumstance indicated, in Mr. Forsyth's submission, a legislative assumption or understanding that the amounts payable as compensation under Pt. III in respect of incapacity and death would not be assessable income of those who received them. Such an understanding of the Victorian legislature cannot in my opinion be allowed an influence on the proper construction of Commonwealth legislation, nor on the characterisation of the amounts as capital or income in the hands of the recipients. In any event, the circumstance upon which Mr. Forsyth relied does not in my opinion point at all clearly to the legislative understanding or assumption for which he contended. The amount of salary or wages for calculation of which direction is given for the purposes of Pt. III includes, by virtue of the definitional provision in sec. 3(4)(b), ``an amount paid or payable or contributed in respect of that person in respect of that period by an employer of that person under a superannuation, pension or retirement scheme''. And it is from an amount of salary or wages ascertained in compliance with that provision that sec. 20(2) directs subtraction of ``the amount required to be deducted by... by employers under Division 2 of Part VI of the Income Tax Assessment Act''.

When an amount which is not income in contemplation of the Income Tax Assessment Act is included in such a calculation, no confident inference of the kind Mr. Forsyth sought to draw can be based upon directions for subtraction of amounts which would in particular circumstances be deductible by an employer under Div. 2 of Pt. VI of that Act, in my opinion.

Evidence was adduced of the payments made by the Board to the appellant during the year of income ended 30 June 1975. The evidence established the date and the amount of each payment and the number of working days in respect of which the payment was made; and the evidence also identified by dates the period within which the working days fell. The following table summarises those facts, as I find them: -

            
                                      Number
                                        of
Date of                               Working                Period
Payment           Amount               Days           From               To
 2/7/74           $ 91.20               10           22/6/74            5/7/74
 8/7/74           $ 27.36                3            6/7/74           10/7/74
22/7/74           $109.44               12           11/7/74           26/7/74
28/8/74           $228.00               25           27/7/74           30/8/74
13/9/74           $ 91.20               10           31/8/74           13/9/74
23/9/74           $ 91.20               10           14/9/74           27/9/74
4/10/74           $ 54.72                6           28/9/74           7/10/74
10/10/74          $173.28               19           8/10/74           1/11/74
14/11/74          $ 91.20               10           2/11/74          15/11/74
29/11/74          $ 91.20               10          16/11/74          29/11/74
 4/12/74          $ 45.60                5          30/11/74           6/12/74
20/12/74          $228.00               25           7/12/74           10/1/75
 4/2/75           $136.80               15           11/1/75           31/1/75
10/2/75           $ 91.20               10            1/2/75           14/2/75
25/2/75           $ 91.20               10           15/2/75           28/2/75
14/3/75           $ 91.20               10            1/3/75           14/3/75
27/3/75           $ 91.20               10           15/3/75           28/3/75
10/4/75           $ 91.20               10           29/3/75           11/4/75
24/4/75           $ 91.20               10           12/4/75           25/4/75
 9/5/75           $136.80               15           26/4/75           16/5/75
27/5/75           $ 91.20               10           17/5/75           30/5/75
13/6/75           $136.80               15           31/5/75           20/6/75
                 ---------
                $2,371.20

The evidence also established that before the accident the duties of the appellant's employment were performed on five days in each week.

The payments by the Board were in my opinion made with a substantial regularity which suggests a characterisation of those payments as income received by the appellant. Regularity of payment in prompt discharge of the Board's successively accruing liabilites under sec. 25(1) is in my opinion to be expected upon a consideration of the subject matter of the Motor Accidents Act and of its provisions. That expectation has been fulfilled in this case and thereby the conclusion is fortified that the payments in question formed part of the appellant's assessable income by virtue of sec. 25(1)(a) of the Income Tax Assessment Act.

Having reached that conclusion, I express no opinion on the question, to which Mr. Forsyth and Mr. Sweeney addressed careful and helpful submissions, whether the payments fell within sec. 26(j)(ii) of the Act.

The order of the Court is that the appeal be dismissed.

Mr. Sweeney: I ask for costs, Your Honour.

Mr. Myers: I cannot resist that application.

Jenkinson J.: There will be an order that the respondent's costs of the appeal be taxed and paid by the appellant.

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