Manly Fast Ferry Pty Ltd v Wehbe

Manly Fast Ferry Pty Ltd appealed to the Court of Appeal of New South Wales against a judgment of the District Court of New South Wales. The dispute concerned an award of damages to the respondent, Mr Wehbe, who suffered a knee injury when a ferry operated by the appellant collided with a wharf. The appeal raised questions regarding the fairness of the trial process, particularly the extent of judicial questioning of expert witnesses, and the assessment of damages for both the primary injury and a consequential injury to the respondent's other knee, as well as for domestic assistance.

The Court of Appeal was required to determine whether the primary judge’s conduct during the trial, including extensive questioning of expert witnesses, created a real danger that the trial was unfair and had miscarried. Further issues included whether the primary judge erred in awarding damages for the respondent's right knee injury, which was alleged to be a compensatory injury arising from favouring the injured left knee, and whether the judge erred in awarding damages for commercial domestic assistance when those tasks were being performed by the respondent's brothers. The court also considered whether the primary judge had impermissibly substituted their own medical opinion for that of the experts.

The Court of Appeal found no error in the primary judge's conduct or the assessment of damages. Regarding the judicial questioning, the court held that while the judge's interventions were extensive, they were directed at clarifying complex medical evidence and did not amount to an unfair substitution of the judge's own opinion for that of the experts. The court reasoned that the judge's questions were aimed at resolving inconsistencies and understanding the basis of the experts' opinions, which was permissible in the context of competing expert evidence. The award of damages for the right knee injury was upheld on the basis that the primary judge was entitled to find it was a foreseeable consequence of the initial injury. Similarly, the award for domestic assistance was justified on the grounds that the respondent had a legal entitlement to compensation for the loss of capacity to perform those tasks, irrespective of whether family members provided gratuitous assistance.

The appeal was dismissed, and Manly Fast Ferry Pty Ltd was ordered to pay the respondent's costs of the appeal.