Mastaglia & Anor v Burns [2006] WASCA 190

[4]

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Mastaglia & Anor v Burns [2006] WASCA 190 | Case summary | Zoe

[211]

133 Of the four sentences comprising [122], only the first unequivocally relies on the trial Judge's pre-trial experience. The second sentence, relating to the witness's expression and approach in report writing, is equivocal. It may be interpreted as a comment about the general approach taken by the witness to report writing or the particular approach in the reports tendered at trial. In my assessment the comment is a fair description of Dr Rosenthal's reports of 8 August 2003 and 21 April 2004. In his second report, Dr Rosenthal makes it clear that causation could not be determined by his physical examination of the respondent some years after the event but could only be made "on the basis of a careful analysis of the history and chronology of medical events". The third sentence in [122] is clearly the trial Judge's conclusion based on Dr Rosenthal's written and oral evidence at trial. The final sentence, particularly in the context of the reasons as a whole, is of some significance. It demonstrates that it was not the trial Judge's intention to impugn the independence and impartiality of Dr Rosenthal's evidence. If that was his intention, Dr Rosenthal's evidence would have to be given reduced or discounted weight. As I read the paragraph as a whole, the trial Judge is saying no more than Dr Rosenthal's methodology (which was to review all of the contemporaneous documents and history, including the histories obtained by and the opinions of other medical practitioners) affected the way he presented his evidence which the trial Judge described as involving a tendency to argue the case. As to the broader context, the trial Judge repeatedly describes Dr Rosenthal and his evidence as impressive (at [118] and [129]) and addresses at length his evidence on the central issue in the action which was whether the motor vehicle accident caused the undoubted back-related symptoms from which the respondent suffered. Moreover, the trial Judge's evaluation of Dr Rosenthal's evidence has to be considered against the background of the trial Judge's acceptance of the respondent's evidence, his finding that the vehicle moved and Dr Rosenthal's admitted reliance on Dr Bell's reports. I am satisfied that the trial Judge's remarks in [122] fall well short of giving rise to a reasonable apprehension of bias.

[212]

134 The appellants relied on the recent High Court decision of CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 in support of the bias claim. That case concerns a separate, albeit potentially overlapping, rule of procedural fairness generally described as the "hearing rule". One aspect of the hearing rule is the requirement that judicial decision-makers are generally required to base their decisions on the evidence presented by the parties. If the decision-maker intends to and can properly rely on information from other sources, he or she must disclose that information to the parties and give them the opportunity to meet and answer it. In CSR Ltd, the Full Court of the Supreme Court of Western Australia upheld an appeal from the dismissal of a personal injuries' claim. Instead of ordering a retrial on liability, the Full Court found, after resolving conflicts in the expert medical evidence, that the appellant had negligently caused the respondent's injuries. In preferring the evidence of two of the expert medical witnesses, the Full Court stated that those experts were well-known to the Court as eminent psychiatrists of very long-standing. The Full Court did not bring this knowledge or its potential significance in its decision-making process to the attention of the parties. On appeal to the High Court a majority (Hayne, Callinan and Heydon JJ; Gleeson CJ and Kirby J dissenting) held that the Full Court had breached the rules of procedural fairness. Hayne J said (at [108]) that the Full Court acted on material that was not in evidence and was not the subject of argument, citing Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 and Australian and Overseas Telecommunications Corporation Limited v McAuslan [1993] FCA 620; (1993) 47 FCR 492. Callinan and Heydon JJ held there was a denial of natural justice, being a failure to accord the respondent a proper hearing. They made the obiter observation (at [162]) that, had the Full Court made the information known to counsel, the appellants may have been entitled to ask the Judges to disqualify themselves. That observation is difficult to reconcile with the approach in Vakauta v Kelly.

[274]

"... It is always the loss to the plaintiff which is to be considered. It is he who is to be compensated for his loss, the loss produced by his incapacity. The injured partner's loss will be determined as a starting point by the reduced income which he receives if no replacement is engaged and less work is done or by his share of the cost of replacement labour if it is engaged. There may be (usually there will be) other loss to the partnership. But the claim before the Court is the plaintiff's claim. The Court must assess his loss. When it assesses that plaintiff's loss for pre-trial loss of capacity to earn, the Court should, in my opinion, commence to assess the loss caused to that plaintiff by the expense of replacement labour in deciding what proportion of that expense is or was borne by that plaintiff. As we have seen from Taroporewalla v Berkery (supra) that proportion may not be the same as the plaintiff's 'percentage' of profits as expressed in the partnership agreement. But that 'percentage' and the work and effort which the plaintiff put into the business are relevant. The partner who does all the work will no doubt be entitled to have the full cost of replacement labour taken as the starting point.

I think that in general the starting point should be the proportion of the loss, i.e. the loss by reference to the plaintiff's share in the expense of substitute labour or in the loss sustained. But share does not encompass only 'share of income'. It is the loss to the plaintiff himself not the whole loss to the partnership which must be ascertained as a starting point. Sometimes the two will be the same, or nearly the same. In Taroporewalla v Berkery the plaintiff's contribution to the partnership was held in fact to be 80% despite his entitlement in the books of a partnership to 50% of the profits. If a man has an inactive partner who does no more than lend his name for tax purposes to the partnership then the active partner may well be entitled to the whole cost of replacement labour engaged during his incapacity. It may be, too, that on some occasions it can be shown that not only is a loss occasioned by the cost of engaging replacement labour but that there is some diminution of profit because the substitute labour works less vigorously or less skilfully or for a lesser time than did the injured partner. That can be taken into account."

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Judgment (297 paragraphs)

Mastaglia & Anor v Burns [2006] WASCA 190 (25 September 2006)

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Cases Cited (28)