ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :FENBURY DCJ
Citation  :BURNS -v- MASTAGLIA & ANOR [2005] WADC 13
File No  :CIV 596 of 2002

Catchwords:

Appeals - Adequacy of reasons of trial Judge

Appeals - Allegation of apparent bias on part of trial Judge

Negligence - Motor vehicle accident - Admitted liability for accident

Damages - Personal injuries - whether the respondent's back injuries were caused by the motor vehicle accident or by other means

Damages - Assessment of - Past and future loss of earning capacity - Principles applicable to the calculation of past economic loss in respect to the period in which the respondent was carrying on a business in partnership with his wife

Legislation:

Partnership Act 1895 (WA), s 37(1)

Result:

Appeal allowed in part and cross-appeal dismissed

Category: B

Representation:

Counsel:

First Appellant              :     Mr M H Zilko SC & Mr J R Brooksby
Second Appellant          :     Mr M H Zilko SC & Mr J R Brooksby
Respondent:     Mr K S Pratt

Solicitors:

First Appellant              :     Greenland Brooksby
Second Appellant          :     Greenland Brooksby
Respondent:     Stephen Browne Lawyers

Case(s) referred to in judgment(s):

Australian and Overseas Telecommunications Corporation Limited v McAuslan (1993) 47 FCR 492
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Butler v The Egg and Egg Pulp Marketing Board (1966) 114 CLR 185
Cochrane v Hannaford (1999) 30 MVR 55
Conley v Minehan [1999] NSWCA 432
CSR Ltd v Della Maddalena (2006) 80 ALJR 458
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Fox v Percy (2003) 214 CLR 118
Future Look Landscaping Pty Ltd v Hanlon, unreported; SCt of NSW, CA 40658-1997; 8 July 1998; (Spigelman CJ, Sheller and Giles JJA)
Garrett v Nicholson (1999) 21 WAR 226
Graham v Baker (1961) 106 CLR 340
Husher v Husher (1999) 197 CLR 138
Husher v Husher, unreported; FCt of SCt of Qld (McPherson, Thomas JJA and Derrington J); 21 August 1998
Johnson v Johnson (2000) 201 CLR 488
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
O'Brien v Dungdon (1965) 39 ALJR 78
Randall v Dul (1994) 13 WAR 205
Seymour v Gough [1996] 1 Qd R 89
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Spargo v Haden Engineering Pty Ltd (1993) 60 SASR 39
State Government Insurance Commission (Western Australia) v Oakley (1990) Aust Torts Reports 81‑003
State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 73 ALJR 306
Stead v State Government Insurance Commission (1986) 161 CLR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mastaglia v Burns

Details

AGLC: Mastaglia v Burns [2006] WASCA 190
Case: [2006] WASCA 190
Decision Date: 25 SEPTEMBER 2006

CaseChat Overview and Summary

In this case, the respondent, Mastaglia, appealed against the decision of Burns J, who dismissed his claim for damages arising from a motor vehicle accident. The trial judge found that Mastaglia's back injuries were not caused by the accident but by other means. Mastaglia alleged that the trial judge was biased and that his Honour failed to provide adequate reasons for his decision. The appeal raises issues concerning the adequacy of reasons given by a trial judge, the alleged bias of the trial judge, and the assessment of damages for personal injuries. The court examined whether the trial judge provided adequate reasons for his findings and whether there was any apparent bias in his Honour's decision-making process. The court also assessed the evidence regarding the cause of Mastaglia's back injuries and the calculation of damages for past and future loss of earning capacity.

The court found that the trial judge's reasons were adequate, and there was no apparent bias in his Honour's decision-making process. The court held that the trial judge had properly considered the evidence and made findings on the cause of Mastaglia's back injuries. The court also held that the trial judge had correctly assessed the damages for past and future loss of earning capacity. The court dismissed the appeal, finding that the trial judge's decision was correct and that there was no basis for the alleged bias. The court affirmed the decision of Burns J and dismissed Mastaglia's claim for damages.

Orders