AVWEST AIRCRAFT PTY LTD as trustee for AVWEST AIRCRAFT TRUST -v- CLAYTON UTZ (A FIRM) [2018] WASC 167 (6 June 2018)

(1) the plaintiff has been deprived of the opportunity to enter into a Cabin Modification Agreement which provided it with an indemnity in respect of loss suffered (including consequential loss) as a result of the damage caused by the fire;[1] and

(2) if Comlux would not have agreed to enter into a Cabin Modification Agreement with such an indemnity, the plaintiff has been deprived of the opportunity to terminate the Aircraft Sale Agreement and use the funds expended on the aircraft to generate a profit through alternative investment in the usual course of its business.[2]

1. It is claimed that, in either case, the plaintiff has suffered loss. The plaintiff claims damage by reference to alleged deprivation of additional capacity to purchase and onsell aircraft by reason of not having the capital that was applied in the purchase of the Bombardier Global Express SRS aircraft following the plaintiff entering into the Cabin Modification Agreement with Comlux.
2. Accordingly, one of the issues at trial is a question of causation. There is a contested issue as to the steps the plaintiff would have taken either as to the Cabin Modification Agreement or the Aircraft Sale Agreement had the plaintiff received the advice which it contends the defendant ought to have provided. In that respect, the plaintiff must prove what would probably have eventuated had the defendant's alleged negligence not occurred.[3]
3. I observe that the question is necessarily hypothetical. It involves an evaluation of circumstances which did not, in fact, happen. Direct evidence is not essential. The court may infer causation by reference to the objective facts and probabilities.[4]

1. The plaintiff seeks to meet its onus on the causation issue by, in part, having two witnesses, Mr Burton and Mr Roberts, give direct evidence on the question.
2. Mr Burton is now a director of the plaintiff. At the relevant time he was responsible for the financial accounting and daytoday administration, including contractual administration, of the group of companies of which the plaintiff was a member. Mr Burton reported to Mr Roberts on all material matters of finance and administration. In late 2010 Mr Roberts was the sole director of the plaintiff. He was responsible for and took all material business and financial decisions on behalf of the plaintiff.
3. In the paragraphs of the witness statements the subject of the objection Mr Burton and Mr Roberts give evidence of what they would have done if the defendant had given the advice which the plaintiff contends ought to have been given.
4. For example, at [61] of his first witness statement Mr Burton says that if the defendant had told him certain matters then he would have raised the issue with Mr Roberts. Mr Burton says that had the defendant suggested particular amendments he would have either made the change himself and sent the drafting back to Comlux or raised the issue with Mr Roberts. If Comlux refused the change, Mr Burton would have alerted Mr Roberts to the issue and left it for Mr Roberts to decide how he wished to proceed.
5. Other evidence concerning Mr Burton's belief as to what course he would have adopted if particular advice had been given was also the subject of objection.[5]
6. Similarly, at [68] of his witness statement dated 28 February 2018, Mr Roberts gives evidence that the risk of proceeding with the Aircraft Sale Agreement would have been too great had he been advised of the limitations of Comlux's liability. Mr Roberts gives evidence, at [66] of that witness statement, that in the event the defendant had given certain advice he would have endeavoured to agree a position whereby the plaintiff was fully indemnified by Comlux and, failing that, would not have proceeded with the transaction.
7. Those paragraphs, and other evidence as to the course that Mr Roberts says he would have adopted, were the subject of the defendant's objection based on s 5C(3)(b).[6]

1. In Australia the common law test of causation is subjective.[7]
2. At common law, evidence of a plaintiff as to what he or she would have done if a defendant had not been negligent is admissible. However, it is well established that a plaintiff's evidence concerning his or her belief as to what course he or she would have adopted if the defendant had not been negligent and, in the case of a defendant who is a professional person, if proper advice had been given, must be treated with caution.[8] McHugh J stated in Chappel v Hart:

Human nature being what is, most plaintiffs will genuinely believe that, if he or she had been given an option that would or might have avoided the injury, the option would have been taken. In determining the reliability of the plaintiff's evidence in jurisdictions where the subjective test operates, therefore, demeanour can play little part in accepting the plaintiff's evidence. It may be a ground for rejecting the plaintiff's evidence. But given that most plaintiffs will genuinely believe that they would have taken another option, if presented to them, the reliability of their evidence can only be determined by reference to objective factors, particularly the attitude and conduct of the plaintiff at or about the time when the breach of duty occurred. [9]

1. Similar reservations about the value of such hypothetical evidence were expressed in Rosenberg v Percival in the context of a medical negligence case involving a doctor's failure to warn a patient about the risks of surgery.[10] Unless objective evidence confirms its reliability such evidence often has little probative value.[11]
2. Evidence by a plaintiff as to what he or she would have done if a defendant had not been negligent is obviously selfserving. Such testimony should be assessed carefully. The admonition that conclusions should be reached, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events,[12] has its usual force.
3. If, viewed in its totality, the evidence suggests that the acts or omissions of a defendant would have made no difference to a plaintiff's course of action, the defendant has not caused the harm which the plaintiff has suffered.[13]

1. Part 1A of the Civil Liability Act 2002 (WA) was introduced by the Civil Liability Amendment Act 2003 (WA). It is headed: 'Liability for harm caused by the fault of a person'.
2. By s 5A(1), subject to s 3A and s 4A, Part 1A applies to any claim for damages for harm caused by the fault of a person unless the section states otherwise. The Part extends to a claim for damages for harm caused by fault even if the damages are sought to be recovered in an action for breach of contract (s 5A(2)). The reference to 'harm' means harm of any kind and includes economic loss (s 3).
3. Part 1A addresses various specific topics such as recreational activities (Division 4), contributory negligence (Division 5) and assumption of risk (Division 6). It commences, however, by restating aspects of civil liability relating to duty of care (Division 2) and causation (Division 3).
4. Section 5C appears within Division 3 dealing with causation.
5. Section 5C of the Act provides:

5C. General principles

(1) A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements

(a) that the fault was a necessary condition of the occurrence of the harm (factual causation); and

(b) that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).

(2) In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things)

(a) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and

(b) whether and why the harm should be left to lie where it fell.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault

(a) subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and

(b) evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor. (Emphasis added)

1. The plaintiff always bears the onus of proving, on the balance of probabilities, any facts relevant to the issue of causation.[14]
2. Section 5C(3) preserves, subject to the qualification in s 5C(3)(b), the subjective character of the common law test of causation. However, contrary to the position at common law, evidence of the 'injured person' as to what he or she would have done if the tortfeasor had not been at fault is inadmissible. It is this provision which grounded the defendant's evidentiary objection.
3. In identifying the purpose of s 5C(3)(b) senior counsel for the defendant referred me to Neal v Ambulance Service of New South Wales.[15] In that case there was consideration of the New South Wales analogue to s 5C, namely, s 5D of the Civil Liability Act 2002 (NSW). There are some textual differences between the two statutory provisions which I discuss below. However, it was submitted, and I accept, that both provisions were introduced in response to the Review of the Law of Negligence, Final Report (2002). There it was stated:

The Panel is also of the view that the question of what the plaintiff would have done if the defendant had not been negligent should be decided on the basis of the circumstances of the case and without regard to the plaintiff's own testimony about what they would have done. The enormous difficulty of counteracting hindsight bias in this context undermines the value of such testimony. In practice, the judge's view of the plaintiff's credibility is likely to be determinative, regardless of relevant circumstantial evidence. As a result, such decisions tend to be very difficult to challenge successfully on appeal. We therefore recommend that in determining causation, any statement by the plaintiff about what they would have done if the negligence had not occurred should be inadmissible.[16]

1. In Neal v Ambulance Services of New South Wales Basten JA (with whom Tobias JA and Handley AJA agreed) observed that the lack of weight likely to attend selfinterested assertions was well understood prior to the introduction of the Civil Liability Act 2002 (NSW). It was said to be unlikely that the provision was introduced to prevent the trivial waste of time which might attend the adducing and challenging of such evidence. Rather, the purpose of the provision appeared to be to prevent a trial judge placing any weight on such evidence in circumstances where it could not be said to be an abuse of his or her advantage as a trial judge.[17]

1. There are limited authorities that have considered s 5C of the Civil Liability Act 2002 (WA). None of those authorities addressed the question of statutory construction now under consideration. However, I was referred in argument to a number of New South Wales authorities and one decision of the Federal Court of Australia. Those authorities concerned s 5D of the Civil Liability Act 2002 (NSW) (although the Federal Court authority mentions the Western Australian provision without drawing any distinction between it and the New South Wales provision).
2. Section 5D of the New South Wales Act is in slightly different terms to s 5C of the Western Australian Act. Section 5D(3) of the New South Wales Act is in these terms:

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

1. There are seven textual differences between the two statutory provisions.
2. First, the Western Australian provision defines the 'person who suffered harm' as the 'injured person'. Second, the Western Australian provision refers to the 'tortfeasor' whereas the New South Wales provision refers to the negligent person. Third, the Western Australian provision refers to fault whereas the New South Wales provision refers to the negligent person being negligent. Fourth, in s 5D(3)(a) of the New South Wales Act the proviso that the provision is 'subject to paragraph (b)' appears in a different place. Fifth, different language is used as to the operative part of s 5D(3)(a), the New South Wales provision referring expressly to the subjective nature of the enquiry. Sixth, the New South Wales provision contains a proviso to the limitation on admissibility in s 5D(3)(b) that is not found in the Western Australian provision (statements against interest being admissible in New South Wales).
3. Importantly, the limitation on admissibility is expressed in different terms in that:
   • in the Western Australian provision the limitation is as to evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault; and
   • in the New South Wales provision the limitation is as to any statement made by the person after suffering the harm about what he or she would have done.
4. Those textual differences reduce the significance of the authorities on s 5D of the New South Wales Act to which I was referred.
5. The first authority was AI McLean Pty Ltd v Hayson.[18] There Bergin J (as her Honour then was) held that s 5D(3)(b) would have rendered inadmissible any evidence from a director of the corporate plaintiff about what he would have caused the plaintiffs to do if the defendant solicitors had advised the plaintiff to pursue a particular course.[19] Accordingly, the case supports the contention of the defendant. However, as I read AI McLean Pty Ltd v Hayson, the contest between the parties was whether the New South Wales Act applied to the proceedings at all.[20] There was no argument by the parties, and no detailed consideration by her Honour, as to whether on its proper construction the phrase 'statement made by the person after suffering the harm' included the evidence of the director of a corporate plaintiff.
6. As the issue was not in contention, and Bergin J was not required to give the matter full consideration with the benefit of the argument of counsel, I do not view the passage in AI McLean Pty Ltd v Hayson relied on by the defendant as establishing an authoritative ruling as to the scope of s 5D(3)(b) of the New South Wales Act.[21]
7. A different result occurred in Wingecarribee Shire Council v Lehman Brothers Australia Ltd (in Liq).[22] There it was held that, despite s 5D(3)(b) of the New South Wales Act and s 5C(3)(b) of the Western Australian Act, the hypothetical responses of council officers as to what each would have done had particular matters been brought to their attention were admissible.[23] However, this was due to it being 'common ground' between the parties that the provisions had no application to the proceedings. Again, in my view, the authority is of limited precedential value.
8. The issue was noted by Ball J in UGL Rail Pty Ltd v Wilkinson Murray Pty Ltd:

There is a question whether this evidence is admissible under s 5D(3)(a) of the [New South Wales Act]. In AI Mclean Pty Ltd v Hayson, Bergin J (as her Honour then was) took the view that s 5D(3)(a) applied where the evidence was given by a director of a company about what the plaintiff company would have done. However, as Villa points out, it is difficult to reconcile that approach with the actual working of the section: see D Villa, Annotated Civil Liability Act 2002 (NSW) (2nd ed, 2013, Lawbook Co) at 1523. The section appears to be restricted to cases where the person giving evidence is the person who suffered the harm. It does not obviously apply where the person suffering the harm is a corporation; and it is not clear that it can be used to exclude evidence given by any employee of what he or she might have done. [24]

1. The final decision to which I was referred was Richtoll Pty Ltd v WW Lawyers Pty Ltd (in Liq).[25] There, Sackville AJA (with whom McColl JA and Barrett AJA agreed) noted the differences between the decisions of Bergin J in AI Mclean Pty Ltd v Hayson and Ball J in UGL Rail Pty Ltd v Wilkinson Murray Pty Ltd.[26] Sackville AJA went on to observe that:

In a professional negligence suit in which a company is the only company, it is the company, not its directors, which is alleged to have suffered loss by reason of the defendant's negligence.[27]

1. The authorities on s 5D(3) of the New South Wales Act do not provide any significant assistance. The one case that suggests that hypothetical evidence on the part of the directors of a corporate plaintiff is inadmissible proceeded without argument or a considered determination as to the proper construction of the provision. The latter cases, while exhibiting reservations as to the conclusion reached by Bergin J, do not proceed to make any determination on the point. And, as previously discussed, there are a number of textual differences between the New South Wales provision and the Western Australian provision.
2. Accordingly, in my view, it is necessary to reach a conclusion as to the proper construction of s 5C(3)(b) of the Civil Liability Act 2002 (WA). In doing so I am not constrained in the way I would be were there to be a prior decision on the interpretation of uniform national legislation.[28]

1. Before addressing the parties' arguments as to the proper construction of s 5C(3)(b) it is appropriate to consider the process of statutory construction generally.
2. Statutory construction involves the attribution of legal meaning to statutory text.[29] Its process is well understood. However, it assists to restate some general principles:

(1) The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have.[30]

(2) The task of statutory construction must begin with a consideration of the text itself.[31] So must the task of statutory construction end.[32]

(3) The statutory text must be considered in its context.[33] This includes the legislative history and general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[34] Context also includes extrinsic materials.[35] However, legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.[36] The constructional task is to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.[37]

(4) The context and purpose of a provision are important to its proper construction because the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.[38]

(5) The interpretation that would promote the purpose or object of the Act is to be preferred over a construction that would not promote that purpose or object.[39]

(6) The purpose of a statute resides in its text and structure. Purpose must be derived from what the legislation says and not from any assumption about the desired or desirable reach or operation of the relevant provisions.[40]

(7) Inconvenience or improbability of result may assist the court in preferring a construction other than a literal interpretation which is reasonably open and more closely conforms to the legislative intent.[41]

(8) A court construing a statutory provision must strive to give meaning to every word of the provision.[42]

1. As was stated in ADCO Constructions Pty Ltd v Goudappel:

The appropriate inquiry in the construction of ... legislation is directed to the text, context and purpose of the [provision], the discernment of relevant constructional choices, if they exist, and the determination of the construction that, according to established rules of interpretation, best serves the statutory purpose. [43]

1. In considering purpose it is necessary to identify the purpose of the specific provision rather than the purpose of the enactment as a whole.[44]
2. Accordingly, the key elements in determining the proper construction of the phrase 'evidence of the injured person' are the statutory text, context and purpose.[45] The text is the starting and end point. It provides the 'surest guide'[46] to Parliament's intent. However, the text must be read in its context, including the general purpose and policy of the statutory provision.

1. Senior counsel for the defendant raised a number of matters in support of the contention that, on its proper construction, the phrase 'evidence of the injured person' in s 5C(3)(b) included the challenged evidence of Mr Burton and Mr Roberts as directors of the plaintiff.
2. The starting point was said to be that in every written law the term 'person' includes a company.[47] However, in the case of an Act, such interpretive rules do not apply where the intent and object of the statutory provision or something in the subject or context of the statutory provision is inconsistent with such application.[48] Senior counsel for the plaintiff submitted that was the case in relation to s 5C(3)(b).
3. Essentially, the question is one of whether the intent and object of s 5C(3)(b), or something in its subject or context, is inconsistent with its application to a corporate plaintiff.
4. Senior counsel for the defendant next referred to the fact that the term 'person' was used in s 5C(1). It was said that the term 'person' should have the same meaning in s 5C(1) and s 5C(3)(b). It was suggested that if the term 'person' in s 5C(1) was limited to a natural person then that aspect of the Civil Liability Act 2002 (WA) would only apply in the context of harm caused by a natural person.[49] That was suggested to be an improbable result. Accordingly, senior counsel for the defendant submitted that in s 5C(1) the term 'person' included non-natural persons; and that must also be the case in s 5C(3)(b).
5. There are two answers to that submission.
6. First, while it is usually assumed that words are used consistently in legislation and should be given the same meaning consistently,[50] that is not always the case. There are examples of the one word bearing different meanings in the same section.[51] The presumption is readily rebuttable[52] and yields to context.[53]
7. Second, the 'person' being referred to in s 5C(1) is a different 'person' to that being referred to in s 5C(3). The person in s 5C(1) is the tortfeasor; the person in s 5C(3) is the injured person. The circumstance that a particular limitation arises as to s 5C(3)(b) ought not affect the generality of s 5C(1).
8. I note that, while such a submission was not advanced, a similar type of submission could have been advanced by the defendant as to the reference to 'person' in the chapeau to s 5C(3) and 'injured person' in s5C(3)(a).[54] There the second answer as given in the preceding paragraph would not be applicable. But it still remains necessary to consider whether the intent and object of s 5C(3)(b), or something in its subject or context, is inconsistent with its application to a corporate plaintiff.
9. Senior counsel for the defendant then submitted that the statutory purpose evinced by s 5C(3)(b), as identified in Neale v Ambulance Services of New South Wales, was equally applicable to natural injured persons and directors of corporate injured persons.
10. There was force in that submission. But the fact that the purpose which underpins s 5C(3)(b) applies equally to natural persons and corporate persons is not determinative. Examination of the legislative history and extrinsic material is not an end in itself. Such materials cannot displace the statutory text. It is necessary, in my view, to focus on the phrase 'evidence of the injured person' rather than to make an assumption about the desirable reach and operation of the provision. To do otherwise would be to trespass into the role of the legislature.
11. In answer to a submission on the part of the plaintiff, senior counsel for the defendant said that little ought to be read into the use of the personal pronouns 'he or she' in s 5C(3)(b). Senior counsel for the plaintiff had suggested that those words, contextually, were fundamentally inconsistent with the term 'person' including a company.
12. I agree with senior counsel for the defendant that little significance should be given to Parliament's use of the personal pronouns 'he or she'. The phrase is no more than a modern drafting convention; 50 years ago the convention would have been to use 'he' meaning, in most circumstances, he, she or it. As senior counsel for the defendant remarked, in the future the convention might be to refer to 'they' or use more genderneutral language.
13. The latent question in the defendant's preferred construction of s 5C(3)(b) was how did an injured person (ie, the person who had suffered harm) being a company give evidence? For it is only the evidence of the injured person that is rendered inadmissible by s 5C(3)(b).
14. Senior counsel for the defendant submitted that a corporate plaintiff had to speak through its officers. Messrs Burton and Roberts were giving evidence for the plaintiff. That was, in senior counsel's submission, manifest in relation to Mr Roberts. At the time of the relevant events he was the sole director and the directing mind and will of the plaintiff. It was said, rhetorically, that if Mr Roberts could not speak for the plaintiff, then the plaintiff must be mute for all purposes.
15. The submission is one which equates evidence of the injured person with evidence on behalf of the injured person.
16. The injured person (ie, the person who suffered harm) is the plaintiff, being AVWest Aircraft Pty Ltd. It is not Mr Roberts. Nor is it Mr Burton. Moreover, as to the impugned evidence, the evidence challenged was not evidence of what the plaintiff would have done. Rather, it was evidence of what the relevant witness, either Mr Roberts or Mr Burton, would have done. There is a distinction between the corporate plaintiff, on the one hand, and Messrs Roberts and Burton, on the other.
17. A construction of s 5C(3)(b) that equates evidence of the injured person with evidence on behalf of the injured person must be rejected. Such a reading of s 5C(3)(b) goes well beyond what is required to fulfil the statutory purpose of the provision as identified in Neale v Ambulance Services of New South Wales. It would mean that where the plaintiff 'injured person' was a natural person the restriction on hypothetical evidence would extend beyond him or her to others who gave evidence on his or her behalf. But it is only the hindsight bias in the plaintiff's own testimony that was to be addressed by the introduction of s 5C(3)(b).
18. To the extent that senior counsel for the defendant's submission invoked principles of attribution it is self-evidently correct that a company can only act through its officers. And it is also the case that, in some instances and in some areas of the law, it will be correct to speak of a company as being the alter ego of a natural person. But that does not mean that a plaintiff company and its directors are one and the same 'injured person' for the purpose of s 5C(3)(b). Section 5C(3)(b) is dealing with the admissibility of evidence. I do not accept, in that context, that Parliament intended that the evidence of certain persons on behalf of a corporate injured person would be inadmissible because the person was directing mind and will of the company or the company was his or her alter ego. Determination of admissibility might then necessitate a mini-trial as to the extent of the relationship or association between the witness and the corporate plaintiff. That is an inconvenient and improbable result.
19. In construing s 5C(3)(b) due consideration must be given to the statutory text and its use of the word 'evidence'. The effect of the provision - to create a rule as to inadmissibility - highlights that the subject of the provision is evidence. Who, then, is capable of giving evidence?
20. A company may be required to attend, by its proper officer, to give evidence in relation to the production of documents.[55] But a limited company cannot give evidence at large in answer to a subpoena to give oral evidence.[56] A corporation cannot itself give evidence[57] and cannot itself be required to attend for the purpose of giving evidence on oath.[58] As was said in PennTexas Corporation v Murat Anstalt:

If evidence is to be taken by the 'English mode', I do not see how it is possible to take the evidence of a limited company, whether by its proper officer or otherwise. If the proper officer attends for examination, it is he who goes into the witnessbox; it is he who takes the oath; it is he who is liable to be prosecuted for perjury; it is he, in short, who is the witness. I do not think it helps to say that when interrogatories are answered by the proper officer of a company, his answers are the company's answers and bind the company. I do not think that touches the question whether an officer can go into the witnessbox and give oral evidence which can be said to be that of the company. The answers given by him would be his answers, based upon his own memory and knowledge; and though any admission by him would no doubt be binding on the company, the evidence would still be his evidence and not that of the company. [59]

1. Only a natural person may be examined on oath or affirmation. A company cannot itself give oral evidence. That impossibility has had consequences for the proper construction of various statutory provisions requiring that persons attend before an examiner for the purpose of giving evidence.
2. So, for example, where under the predecessor to the present day s 596A and s 596B of the Corporations Act 2001 (Cth) the court was empowered to make an order for examination 'in relation to a person', it was accepted that the order must be directed to a natural person; such an order could not be directed to a company.[60]
3. Other provisions enabling notice to be given to a 'person' to attend to give evidence have been construed as being limited to require only a natural person to attend to give evidence. That was the case in Smorgon v Australia and New Zealand Banking Group Ltd. There the power arose under s 264(1)(b) of the Income Tax Assessment Act 1936 (Cth). Stephen J, noting that a corporation cannot itself give evidence, concluded that the provision was confined in its operation to natural persons. It could apply only to those persons capable of physical attendance and of actually giving evidence.[61]
4. I construe s 5C(3)(b) of the Civil Liability Act 2002 (WA) in the same way. The subject and context of s 5C(3)(b) is inconsistent with its application to a corporate plaintiff. In referring to 'evidence of the injured person' in s 5C(3)(b) Parliament is necessarily referring to an injured person (ie, the person who suffered harm) who is giving evidence - meaning that he or she must be capable of giving evidence himself or herself. This restricts the operation of the statutory provision to a natural person plaintiff.
5. The evidence of Messrs Roberts and Burton that was the subject of the defendant's objection was not evidence of the injured person, namely the plaintiff AVWest Aircraft Pty Ltd, within the meaning and for the purpose of s 5C(3)(b) of the Civil Liability Act 2002 (WA). I therefore disallowed the objection. I said, in delivering my ruling, that it was a ruling as to admissibility only. The weight and reliability of the evidence would no doubt be a matter for further consideration following cross-examination of the witnesses and closing submissions.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Further Amended Statement of Claim dated 1 August 2017 [46(a)], [46(e)].

[2] Further Amended Statement of Claim dated 1 August 2017 [46(f)].

[3] This onus was acknowledged in the plaintiff's opening submissions at [70].

[4] Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 [25], [44].

[5] Witness Statement of Timothy Herbert Burton dated 28 February 2018 [60] [62].

[6] Witness Statement of Timothy Andrew Roberts dated 28 February 2018 [48] (first and second sentences), [65], [66] (other than fourth sentence), [70] (third sentence), [123], [129]; Supplementary Witness Statement of Timothy Andrew Roberts dated 9 May 2018 [2].

[7] Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 [32], [93]; Rosenberg v Percival [24], [44], [87].

[8] Falkingham v Hoffmans (a firm) [2014] WASCA 140; (2014) 46 WAR 510 [247].

[9] Chappel v Hart [32] (footnote 64). See also [87].

[10] Rosenberg v Percival [15] - [17], [44] - [45], [86] - [87], [157] - [158], [221].

[11] Attard v James Legal Pty Ltd [2010] NSWCA 311; (2010) 80 ACSR 585 [120], [126].

[12] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [31].

[14] Civil Liability Act 2002 (WA) s 5D.

[15] Neal v Ambulance Service of New South Wales [2008] NSWCA 346.

[16] Review of the Law of Negligence, Final Report (2002) [7.40].

[17] Neal v Ambulance Services of New South Wales [39].

[18] AI McLean Pty Ltd v Hayson [2008] NSWSC 927.

[19] AI McLean Pty Ltd v Hayson [245].

[20] AI McLean Pty Ltd v Hayson [241] - [245].

[21] CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 [13]; Archer v Howell (1992) 7 WAR 33, 46 (a case resting on an assumption sub silentio cannot constitute a binding precedent).

[22] Wingecarribee Shire Council v Lehman Brothers Australia Ltd (in Liq) [2012] FCA 1028; (2012) 301 ALR 1.

[23] Wingecarribee Shire Council v Lehman Brothers Australia Ltd (in Liq) [1124].

[24] UGL Rail Pty Ltd v Wilkinson Murray Pty Ltd [2014] NSWSC 1959 [191].

[25] Richtoll Pty Ltd v WW Lawyers Pty Ltd (in Liq) [2016] NSWCA 308.

[26] Richtoll Pty Ltd v WW Lawyers Pty Ltd (in Liq) [54].

[27] Richtoll Pty Ltd v WW Lawyers Pty Ltd (in Liq) [54].

[28] Cf York Street Mezzanine Pty Ltd (in Liq) [2007] FCA 922; (2007) 162 FCR 358 [22] - [23].

[29] Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 [65].

[30] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78]; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 [25].

[31] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39]; Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; (2013) 250 CLR 523 [47].

[32] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [39].

[33] Project Blue Sky Inc v Australian Broadcasting Authority [69]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [39].

[34] Sons of Gwalia Ltd v Margaretic [2007] HCA 1; (2007) 231 CLR 160 [108]; Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390, 397; Project Blue Sky Inc v Australian Broadcasting Authority [69].

[35] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [39].

[36] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [39].

[37] Taylor v Owners - Strata Plan No 11564 [65].

[38] Project Blue Sky Inc v Australian Broadcasting Authority [69], [70]; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [24].

[39] Interpretation Act 1984 (WA) s 18.

[40] Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [25] [26].

[41] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 [408]; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273 [11], [12].

[42] Project Blue Sky Inc v Australian Broadcasting Authority [71].

[43] ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; (2014) 254 CLR 1 [28]. The quotation concerns delegated legislation. However, it is equally applicable to legislation generally.

[44] ADCO Constructions Pty Ltd v Goudappel [29].

[45] Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468 [10]; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232 [184]; ElecNet (Aust) Pty Ltd v Commissioner of Taxation [2016] HCA 51; (2016) 259 CLR 73 [49]; Talacko v Bennett [2017] HCA 15; (2017) 260 CLR 124 [82]; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 351 ALR 225 [34].

[46] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [47].

[48] Interpretation Act 1984 (WA) s 3(1)(b).

[49] A similar argument could have been advanced by reference to s 5A(1) of the Civil Liability Act 2002 (WA).

[50] D Pearce and R Geddes, Statutory Interpretation in Australia (8th ed, 2014) [4.6].

[51] Clyne v Deputy Commissioner of Taxation [1981] HCA 40; (1981) 150 CLR 1, 10 - 11.

[52] D Pearce and R Geddes, Statutory Interpretation in Australia (8th ed, 2014) [4.7].

[53] Clyne v Deputy Commissioner of Taxation, 10.

[54] For the avoidance of doubt, these reasons only come to a conclusion as to the proper construction of s 5C(3)(b) of the Civil Liability Act 2002 (WA). It is unnecessary for me to reach a conclusion as to the meaning of the term 'person' in the chapeau to s 5C(3) or the meaning of the term 'injured person' in s 5C(3)(a). However, my provisional conclusion is that the subject and context of s 5C(3)(b), which is inconsistent with its application to a corporate plaintiff, does not apply to these other aspects of s 5C(3), i.e. s 5C(3)(a) does apply to an injured person that is a company.

[55] PennTexas Corporation v Murat Anstalt [1964] 1 QB 40, 55 - 56; PennTexas Corporation v Murat Anstalt [No 2] [1964] 2 QB 647, 662; Rochfort v Trade Practices Commission [1982] HCA 66; (1982) 153 CLR 134, 146.

[56] PennTexas Corporation v Murat Anstalt [No 2], 662.

[57] Smorgon v Australia and New Zealand Banking Group Ltd [1976] HCA 53; (1976) 134 CLR 475, 481.

[58] PennTexas Corporation v Murat Anstalt, 56, 67 - 69, 73 - 74. However, in Novotny v Todd [2002] WASCA 79, McLure J (as her Honour then was) assumed without deciding that a company can be compelled to attend - by its proper officer - to give oral evidence: at [38].

[59] PennTexas Corporation v Murat Anstalt , 56.

[60] Rothwells Ltd (Provisional Liquidator Appointed) (1989) 15 ACLR 168, 187; Gerah Imports Pty Ltd v The Duke Group Ltd (in Liq) [1993] SASC 3902; (1993) 62 SASR 158, 160-161.

[61] Smorgon v Australia and New Zealand Banking Group Ltd, 481 - 485.