Mastaglia v Burns - [2006] WASCA 190

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MASTAGLIA & ANOR -v- BURNS [2006] WASCA 190

CORAM: MARTIN CJ
McLURE JA
BUSS JA

HEARD: 19 MAY 2006

DELIVERED : 25 SEPTEMBER 2006

FILE NO/S: CACV 6 of 2005

BETWEEN: NATHAN JARED MASTAGLIA
First Appellant
GARY HAYWOOD
Second Appellant
AND
JAMES BURNS
Respondent

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 141
Taroporewalla v Berkery [1983] 3 NSWLR 28
Todorovic v Waller (1981) 150 CLR 402
Trigwell v Trigwell (1997) 18 WAR 83
Vakauta v Kelly (1989) 167 CLR 568
Ward v Newalls Insulation Co Ltd [1998] 1 WLR 1722
Webb v The Queen (1994) 181 CLR 41
Zachopoulos v State Government Insurance Commission (1986) Aust Torts Reports 80‑023
Zahra v Brown [2006] NSWCA 162

Case(s) also cited:

Galea v Galea (1990) 19 NSWLR 263
Hughes v Cornwall [2001] WASCA 157
Livesey v NSW Bar Association (1983) 151 CLR 288
Mifsud v Campbell (1991) 21 NSWLR 725
Warren v Coombes (1979) 142 CLR 531

MARTIN CJ: This is an appeal from an assessment of the damages awarded to the respondent by reason of personal injuries which he alleged he suffered as a result of a motor vehicle accident in which he was involved on 11 November 1998.

The Motor Vehicle Accident

Although there was an issue at trial about the precise consequences of the accident, the general circumstances of the accident were not in issue. On the morning of the day in question, the respondent was driving a Nissan Patrol 4WD vehicle in a south‑westerly direction on the Mandurah Bypass. The vehicle he was driving was towing a trailer which was approximately seven feet by four feet in dimensions, having a fully enclosed metal frame with a flat roof, upon which there was a roof rack on which the respondent carried conduits and ladders which he used in the course of his work as an electrician.
The respondent stopped his vehicle between half a car length and three car lengths behind the vehicle in front of him when that vehicle came to a stop. He heard a squeal of brakes and then felt a collision from the rear of the vehicle in which he was sitting.
That collision was caused by a Sigma Sedan having been propelled into the rear of the trailer being towed by the respondent as a result of the Sigma vehicle having been hit from behind by a RAV4 vehicle driven by the first appellant.
After that impact, the respondent felt a second impact from the rear of the vehicle in which he was sitting. That occurred as a consequence of a truck estimated to be between five and eight tonnes driven by the second appellant having collided with the rear of the RAV4 vehicle.
Liability in negligence was admitted on behalf of both appellants, which is hardly surprising given the circumstances I have described. The only issue which remained to be tried was the quantum of damages to be awarded to the respondent in respect of the injuries which he alleged he suffered as a consequence of the events I have described. Because each appellant was jointly represented, there was no need to apportion responsibility between the appellants.
At trial and on appeal the substantive (but not the only) issue of controversy was whether the disabling back condition from which the respondent suffered at the time of trial was caused by the motor vehicle accident which I have described, or some other circumstance or circumstances, or event or events for which the appellants were not legally responsible.

The Evidence at Trial

The Respondent

It will assist consideration of the issues which arise on the appeal if I briefly set out the main features of the evidence given at trial that are pertinent to those issues.
At the time of the motor vehicle accident, the respondent carried on business as an electrician in partnership with his wife trading under the name J & R Electrics. That partnership had been in existence since early 1983. There was no formal partnership deed (t/s 25).
The respondent described the circumstances on the day of the motor vehicle accident. He gave evidence to the effect that the trailer he was towing was loaded with rolls of cable, power points, light fittings, light switches etc and that it had a braking mechanism which was activated by the braking system of the car that he was driving.
In his evidence‑in‑chief the respondent described the effect of the collisions in the following terms:
"Can you tell us what happened after that?---I was travelling in a south‑westerly direction. I passed through two sets of traffic lights. There was this very nice yellow Holden station wagon - I think it was about a 1969 model - in front of me. I was following it down the highway. We merged with some other traffic before we went on to the bridge and then I noticed that his brake lights were coming on. I applied my brakes. I came to a stop about probably half a car length to three car lengths behind him and then there was this squeal of breaks behind me as if someone was trying to stop in a great hurry and next minute I was just thrown forward to the limit of the safety pole [sic belt].
Do you remember what happened to your head during that?---I just almost hit the steering wheel. It was such a force that threw me forwards.
What happened after that, if anything?---I was coming back towards the seat. As you know when you go to the full length of the safety bolt [sic belt] you're literally propelled back and then I heard another big bang and I was thrown forward again into the same limit as where I was the first time.
What about your neck that time?---I beg your pardon?
What about your neck that time?---I was actually turned to look in my rear vision mirror to find out what was going on behind me.
What happened to the neck?---It got sore, very sore.
Sorry, what happened to the neck during that second collision, if anything, second bang?---I can't really tell. It was so quick. I was just thrown forward, and as I said, I nearly hit the windscreen again."
Following the collisions, the respondent inspected the car he was driving and the trailer it was towing. He observed that the trailer hitch attached to his car, which was a piece of metal 16 mm thick, was bent up to an angle of approximately 45 degrees. The back right‑hand side lights of the trailer were broken, the back tailgate on the right‑hand side was pushed in and the floor of the trailer was crinkled because it was sitting on top of the bonnet of the Sigma Sedan (t/s 31). He described the Sigma as having been extensively damaged - its bumper bar was hard up against the back wheel of his trailer (t/s 32).
The respondent was asked about the movement of the vehicle in which he was sitting. His evidence‑in‑chief on that subject was as follows:
"In the collision, or the two collisions, do you know whether your car moved forward or not?---I couldn't tell you. I was more interested in what was happening around me to tell you whether – how far my car moved.
Right?---It could have moved 100 millimetres or it could have moved half a yard, half a metre. I don't know. I couldn't tell you."
The respondent repeated that he had a sore neck immediately following the collisions and also said that he had a headache which came on approximately 10 minutes later (t/s 33).
After reporting the accident at the police department and providing a statement, the respondent attended his general practitioner, Dr Walker, at approximately 12.30 pm on the day of the accident (t/s 34). His evidence‑in‑chief as to that consultation was in the following terms:
"Do you remember what your neck was like, say, when you saw him that day?---I saw Dr Walker and I said to him that my neck was sore and I had a headache and I had a sort of slight pain in my lower back. He said, 'Well, it looks like you might have a bit of muscle damage.' He manipulate [sic] my neck which relieved the pain pretty quick and he said, 'Just take some Panadol to relieve your headache,' and he said that it could take anything up to about a week to come back to normal, 'Just take it easy'.
You mentioned your low back. When did you first suffer pain there?---It gradually came on after the accident. It wasn't there – my neck was causing me more trouble at that stage than my lower back but I knew it was there."
He also said in evidence that later that day he had to cease work because he was unable to bend over any more as a result of soreness in his neck and the middle of his lower back just above the hip line (t/s 35). He said in evidence‑in‑chief that he suffered constant pain in his neck and back over the following week, which was exacerbated if he did any digging.
After that first week the respondent engaged his son, Steven, to assist him in the performance of his work as an electrician. He said that Steven did the digging and lifting work because of his sore back (t/s 37).
The respondent said that as a result of the continuation of the pain, he attempted to make another appointment to see Dr Walker, but could not obtain such an appointment for about a week and a half (t/s 37). So the respondent asked Dr Walker if it would be advisable to go and see Mr Stacey, the physiotherapist and was told that would be advisable (t/s 38). He consulted Mr Stacey on 8 December 1998, at which time he was suffering pain in his lower back and neck. He stated in evidence‑in‑chief that at that time his back was causing more problems than his neck (t/s 38). Mr Stacey gave the respondent exercises to do for his lower back and neck (t/s 38).
The respondent consulted Mr Stacey a couple of times before an incident occurred at approximately 4.30 pm on the afternoon of 15 December 1998. The respondent was attending a factory in Mandurah Road in the course of his work as an electrician. While walking into the factory he slipped on some unidentified slippery substance on the floor of the factory, which caused his left foot to slide, which in turn caused very sharp pain in his lower back – in the same position which was already sore (t/s 41). Early the following morning the respondent collapsed at home suffering excruciating pain in his lower back (t/s 41).
He consulted both Mr Stacey and Dr Walker the following day and suffered considerable pain in the ensuing weeks. He was unable to work for approximately six weeks as a result of that pain, after which he returned to light duties (t/s 42).
The respondent testified that he continued to suffer constant pain in the lower back and neck throughout 1999, although he was able to control it (t/s 44). He said that the pain continued in the following years and although it was not at a level that precluded him from working, it did inhibit the tasks he was able to carry out (t/s 47). He consulted Mr Popovic, a neurosurgeon, during 2001 and was advised to restrict his physical activities. During this time he was assisted in the performance of his work by his son, Steven. Steven's wages were paid by the partnership (t/s 49).
Steven ceased working for the partnership on 2 February 2003, after which the respondent utilised a mechanical trench digger to assist him in the performance of his work. He was also selective in the nature of the work he undertook (t/s 50).
On the advice of Dr Popovic the respondent ceased working as an electrician on 30 June 2003. He gave evidence to the effect that but for his back problem, he would have continued to work until the age of 65 (t/s 55).
In cross‑examination the respondent accepted that the damage to the trailer had cost approximately $900 to repair and that the damage to the Nissan Patrol was minimal, being limited to the towbar. He reaffirmed his evidence‑in‑chief to the effect that he had complained of soreness in the lower back to Dr Walker on the day of the accident, notwithstanding that Dr Walker had made no note of that symptom (t/s 65). He maintained that evidence, despite the terms of a letter to the Insurance Commission of Western Australia dated 19 March 1999 and signed by him in which it was stated:
"Dr Walker kindly saw me on the day of the accident due to my neck pain and severe headache, that was only a few hours after the accident and the lower back injuries had not become apparent at that time."
The next sentence in that letter was in the following terms:
"Several weeks later after some days of lower back pain I rang Dr Walkers [sic] surgery for an appointment but couldn't get one for several days so I went to Alan Stacey for Physiotherapist treatment on the same day the 8th and again on 12 December as lower back complications were developing at this stage."
When asked to explain that sentence, the respondent stated that what he meant was that "the lower back was getting worse. I had lower back pain from day 1 of the accident" (t/s 67).
The accident report form dated 1 December 1998 was signed by the respondent in which he described his injuries as "whiplash - neck". It was also put to the respondent in cross‑examination. He reiterated that:
"my back was sore, yes, but it really wasn't stopping me from doing my work. It just progressively got worse, that's why I went to …
… Alan Stacey or rang Dr Walker to find out what I could do to relieve my back pain and my neck pain." (t/s 68)
He denied that the back pain had not commenced until some time between 1 December and 8 December 1998 (t/s 68).
The terms of the report from Dr Frank Bell, orthopaedic surgeon, were put to the respondent in cross‑examination. He denied that the history recorded in the report was an accurate record of the history which he gave to Mr Bell (t/s 75). He stated that Dr Bell did not examine him on the first consultation - only the second (t/s 77).
The respondent was also reviewed by Dr Edibam, an orthopaedic surgeon. A portion of Dr Edibam's report was put to him in the following terms:
"Then he goes on:
'Throughout this time the Nissan Patrol Mr Burns was sitting in did not move forwards. Consequently there was no damage to the vehicle in front. By then that vehicle had started to move off.'
Does that accurately reflect what you told Mr [sic] Edibam on that day?---No.
You told his Honour this morning that you don't know whether your vehicle moved?---I've got no idea.
So that could be ---?--- If you were in a vehicle would you know exactly how far, if you've been through [sic thrown] forward, would you know? I don't.
I don't have to answer that question, Mr Burns. I'm checking with you ---?--- No. I'm just saying – no.
You say it could have moved 100 mil or half a yard. So we're looking at, what, either zero according to Mr [sic] Edibam or 4 to 18 inches according to you. Are they the parameters?---I don't know. I cannot tell you how far that car moved.
…
But do you deny that you could have told Mr [sic] Edibam that the vehicle didn't move?---I deny it, yes. We wrote a letter to him explaining that too." (t/s 91)
In re‑examination the respondent reiterated that he had told Mr Stacey that although his back pain had been minor immediately following the motor vehicle accident, it progressively got worse. He also stated that the letter of 19 March 1999 to which I have referred was written by his wife, whose words were "Nine times out of 10" the words used in the letter (t/s 95).
In re‑examination the respondent was also taken to a document entitled "Notice of Intention to Make Claim" dated 13 December 1998 and signed by him in which his injuries are described as "neck and back injury".

Dr Popovic

Dr Popovic was called by the respondent. His view was that it was more likely than not that the respondent had suffered lumbo sacral disc degeneration prior to the motor vehicle accident in 1998, but it was "highly likely that the accident is responsible for his subsequent low [sic] back symptoms with pain radiating into his lower limbs" (report of 4 September 2001 - part of exhibit 13). In his view, the respondent's symptoms were 90 per cent attributable to the car accident and 10 per cent to the slip at work (t/s 110).
In cross‑examination Dr Popovic agreed that the cause of the respondent's injuries would have been acceleration and deceleration of his whole body. He agreed with the proposition that such an injury could not be suffered if the impact was of such a nature that it did not "cause the struck vehicle to move" (t/s 114). Dr Popovic accepted in cross‑examination that there was an error in his report based upon a wrong assessment of the respondent's history. He also accepted that he could not say that the pain suffered by the respondent following the slip at work could not have happened without the motor vehicle accident (t/s 121).

Dr Watson

Dr Watson, a neurosurgeon, gave evidence of his belief that the motor vehicle accident caused an injury to the respondent's lumbar spine and that it was not possible for him to state separately what injuries were caused by the slip at work on 15 December 1998 (t/s 132). In cross‑examination he confirmed that the history he obtained from the respondent was to the effect that immediately following the motor vehicle accident he suffered from neck pain, with the onset of lower back pain over the few days following the accident. He did not agree that an injury to the back could only be sustained in a collision which caused the vehicle to move; in his view, jarring to the back could occur and cause injury without vehicle movement (t/s 142).
In Dr Watson's view, it was quite possible that substantial damage may have been caused to the respondent's disc by the motor vehicle accident and then the last few annular fibres might have been severed by the slip at work, causing substantial increase in the pain suffered (t/s 145). However, like Dr Popovic, Dr Watson could not say that the slip at work could not have caused the subsequent symptoms if the motor vehicle accident had not occurred.

In relation to the significance of the delay between the motor vehicle accident and the onset of pain in the lower back region, Dr Watson gave the following somewhat ambivalent evidence:
"The proposition I put is that if the pain didn't come on for 3 or 4 days – not whether he noticed it. If the pain didn't come on for 3 or 4 days, it's unlikely to be related?---Yes, if the history is that the pain absolutely was not present for 3 or 4 days. But I can't say it's unlikely to be related, but ‑ ‑ ‑"

Dr Walker

Dr Walker was called by the respondent. In chief he described the symptoms of which the respondent complained on the day of the accident, which relevantly included "aching in his neck". Following the incident at work on 15 December 1998, during a consultation on 17 December 1998, Dr Walker recorded a complaint of neck and back pain which the respondent said he had had for several weeks (t/s 161 - 162).
Dr Walker confirmed that in mid 2003 he agreed with Mr Popovic that it was appropriate for the respondent to cease his current employment and look at alternatives.
In cross‑examination, Dr Walker stated that during the consultation two and a half hours after the motor vehicle accident, he detected general neck stiffness as a result of the muscles having been generally tight (t/s 166). Dr Walker was not specifically asked whether or not the respondent reported lower back pain in the course of that consultation; although he did say in cross‑examination that the only note he had in respect of the onset of lower back pain was the note made in the course of the consultation on 17 December to the effect that the respondent had been suffering "continuing neck and back pain for several weeks" (t/s 168).
In re‑examination, Dr Walker accepted that if Mr Stacey, the physiotherapist, had detected pain in the lower back area of the respondent on examination prior to his slip on the 15 December 1998, that would be consistent with the respondent having suffered injury to the spine prior to the slip on 15 December 1998.

Dr Ker

Dr Ker was called by the respondent. He affirmed a view expressed in an earlier report to the effect that it was reasonable to attribute the respondent's lower back symptoms predominantly to the motor vehicle accident, because of the relative violence associated with that accident, compared to the later slip which did not cause the respondent to fall to the ground. He did not accept the proposition that if the vehicle in which the respondent was sitting did not move, he could suffer acceleration/deceleration injury of the spine (t/s 186). He also reported that the respondent gave him a history of the onset of lower back pain within three to four hours of the motor vehicle accident. However, he agreed that if the respondent had not suffered any acute back symptoms in the four weeks following the motor vehicle accident, the likelihood of the motor vehicle accident contributing to his back pain would be minimal (t/s 188).

Mr Stacey

Mr Stacey gave evidence to the effect that when the respondent consulted him on 8 December 1998, he gave a history to the effect that following manipulation of his neck by Dr Walker, on the day of the motor vehicle accident, his neck pain decreased, but two days later, pain in the lower cervical spine gradually increased. This evidence was obviously of considerable significance, given that the consultation with Mr Stacey occurred one week before the respondent's slip on 15 December 1998.
Mr Stacey treated the respondent again on 11 December 1998, at which time he noted that the respondent gave a history of having suffered a sore cervical spine and lumbar spine the day after his previous treatment. Mr Stacey also noted that during examination on 11 December 1998, the respondent expressed pain when either L4 or L5 levels of his spine were pressed.
The appellants called three witnesses at trial: all medical practitioners. Dr Bell gave evidence to the effect that he had retired from medical practice two or three years prior to giving his evidence. The evidence which he gave was drawn from his reports, because the notes which he took at the time of the respondent's consultations with him were eaten by white ants (t/s 262).

Dr Bell

In Dr Bell's first report of 16 August 1999, he recorded opinions based upon his review of the respondent on 21 July 1999. According to his report, Dr Bell noted a history of back pain emerging two‑three weeks after the motor vehicle accident, preceding a slip and twist of the back four and a half to five weeks after the motor vehicle accident. He confirmed the opinion expressed in that report to the effect that any back symptoms suffered by the respondent were related to his slip, rather than the motor vehicle accident. However, in his oral testimony, Dr Bell stated that his opinion was based upon a history of no back pain prior to the slip at work (t/s 269). He later slightly qualified that evidence by saying that the history was of no significant back pain prior to the slip at work. In cross‑examination he agreed that if the Court was to find that the respondent had, in fact, suffered pain in his lower back which increased during the first week following the motor vehicle accident, it would establish some connection between that pain and the collision.

Dr Rosenthal

Dr Rosenthal, a specialist in rehabilitation medicine, gave evidence of observing grossly abnormal changes in the L4‑5 disc of the respondent. Although he expressed the view that there was satisfactory medical evidence to the effect the motor vehicle accident imposed some degree of strain on both the cervical and lumbar region of the respondent, it was Dr Rosenthal's view that the motor vehicle accident had not prevented Mr Burns from working as an electrician; rather, it was his view, that that inability was a consequence of degenerative change. Dr Rosenthal unequivocally stated that because he had not had the opportunity to confer with the respondent until many years after the events giving rise to his claim, he was reliant upon other sources of information including, in particular, the history reported by Dr Bell (t/s 306).
Dr Rosenthal was emphatic in his opinion that the respondent was not fit enough to work as an electrical contractor (t/s 307).

Dr Edibam

Dr Edibam examined the respondent on two occasions. He reported that when taking the history from the respondent, he was advised that the Nissan Patrol, in which the respondent was sitting, did not move forwards. As a result, he formed the view that he could not have sustained any injuries because there could have been no acceleration or deceleration of the body. It was therefore his view that the disc protrusion, which the respondent suffered, came about as a consequence of the slip on 15 December 1998.
In cross‑examination, Dr Edibam was taken to a short report to the solicitors for the appellants dated 3 August 2001, which was the same day he produced a lengthy report in which he set out his opinion. The shorter report was in the following terms:
"I must point out to you one factor regarding the motor vehicle accident. It is quite definite that the vehicle that Mr Burns was sitting in at the time of the accident, did not move. It remained static and consequently I cannot see how he could have sustained any injuries as the injuries resulting in rear end collisions are due to acceleration and deceleration when the body is thrown backwards and forwards.
I am just pointing this out to you so that this point can be clarified again …"
When asked why he provided those views in a separate letter, Dr Edibam speculated that it may have come about as a consequence of an afterthought.
It was also put to Dr Edibam that he worked exclusively as a medico legal practitioner for insurance companies. He accepted that he did medico legal reports for insurance companies and very occasionally for claimants.

The decision at first instance

As it will be necessary to consider portions of the reasons given for the decision at first instance in the context of considering individual grounds of appeal, at this stage, a superficial overview of those reasons will be sufficient.
The trial Judge made extensive findings of fact by reference to the evidence which I have reviewed. He accepted the evidence given by the respondent. He reviewed the evidence given by the medical practitioners to whom I have referred and after weighing that evidence, determined that he preferred the evidence of the medical practitioners called on behalf of the respondent. As a result, he concluded:
"… on the balance of probabilities, and as a matter of common sense given the plaintiff's history, that whatever happened to his lumbar spine in the motor vehicle accident was a significant factor in his disc herniation suffered as a result of the slip at work five weeks later. There is no real doubt that following that slip at work the plaintiff commenced to and increasingly continued to suffer symptoms of degeneration in his lumbar spine. Similarly, given his lack of pre-accident symptoms I find that the difficulties he suffers with the disc in his cervical spine are also related to the motor vehicle accident." (judgment [135])
Although the trial Judge had earlier referred to two distinct possibilities, namely that:
(a)the possibility that the injury sustained after the slip on 15 December would not have occurred had the respondent not been in the physical condition caused by the defendant's negligence; and
(b)the possibility that the respondent would have suffered some injury as a result of the slip on 15 December, but which injury was greater because of the earlier injury;
it seems clear from the passage I have set out above and from the approach which his Honour took to the award of damages, that he must have concluded the case before him was in the former category. No attempt was made by his Honour to differentiate between the financial consequences which would have been suffered had the slip on 15 December 1998 occurred without the occurrence of the prior injury in the motor vehicle accident, which differentiation would, of course, have been necessary had his Honour concluded that the case was in that category (see State Government Insurance Commission (Western Australia) v Oakley (1990) Aust Torts Reports 81‑003).
The trial Judge then assessed damages on the basis of four weeks' loss of work following the slip on 15 December 1998 (being $3320) and the costs incurred by the partnership in hiring the respondent's son to assist him in the performance of the work up until the termination of the respondent's son's employment on 2 February 2003. The trial Judge allowed no damages for the period between 3 February 2003 to 30 June 2003 because he was not satisfied that any loss had been established during that period.
In respect of losses claimed for the period commencing 1 July 2003, notwithstanding the evidence to which I have referred, the trial Judge found that the respondent could have continued to work as an electrician, but would have required assistance to cope with heavy aspects of the work, the cost of which he assessed at $400 per week. He applied that rate to calculate past lost earning capacity up to the date of judgment and to assess future lost earning capacity over the period of 13 years until the respondent turned 65, discounted for contingencies by 4 per cent. The trial Judge also allowed amounts claimed by the respondent in respect of various past expenses and interest at the rate of 6 per cent on those expenses and past lost earnings, bringing the total award to an amount of $350,330.70.

The Grounds of Appeal

Ground 1 - Dr Bell

The first ground of appeal complains that the trial Judge failed to give any or any adequate reasons for rejecting the evidence of Dr Bell.
In relation to Dr Bell, the trial Judge observed that his evidence suffered from the fact that his contemporaneous notes had been lost, combined with his advanced years. He also observed that his first report was written nearly four weeks after the consultation on 21 July 1999. The trial Judge considered that report to be written in unusual terms, one example being given - to the effect that under a heading of specific complaints, the first item recorded was, in fact, a lack of complaint of headache. The trial Judge also referred to the failure of Dr Bell to make any mention in his report of 10 March 2000 to the slip at work suffered by the respondent in December 1998. In his final report, Dr Bell apologised for that omission, which he said was due to him having forgotten that the respondent had a slip some time following the motor vehicle accident.
There is, of course, no doubt as to the obligation of a trial Judge to provide reasons which disclose the intellectual process whereby a particular determination has been made, including the process whereby a trial Judge has come to prefer one version of the evidence over another (see Garrett v Nicholson (1999) 21 WAR 226, 248; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 280; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430, 443).
The appellants complain that the criticisms made by the trial Judge, and which I have set out above, were not accompanied by a detailed analysis of the oral evidence given by Dr Bell in the reasons for decision. However, the trial Judge had accepted the evidence given by the respondent. That evidence was inconsistent with that given by Dr Bell in a number of material respects, including most relevantly the history given by the respondent to Dr Bell. Given the adverse findings which the trial Judge had made in relation to the credibility of Dr Bell's evidence and which I have set out above, little point or purpose would have been served by rehearsing the oral evidence given by Dr Bell, given that the trial Judge was disinclined to accept it. The reasons given by the trial Judge for that view appear, to me, to be entirely adequate to sustain the conclusion at which he arrived. In my view, there is no substance in the first ground of appeal.

Grounds 2 and 3 - Dr Edibam

The second and third grounds of appeal advance a similar complaint in respect of the inadequacy of the reasons for rejecting the evidence of Dr Edibam and further allege apparent bias in relation to that witness.
The trial Judge found that "Dr Edibam had a barely concealed bias or mindset in his evidence particularly in cross-examination".
He also referred to the second report of Dr Edibam dated 3 August 2001 and which I have set out above. Although the trial Judge did not enunciate his conclusions in relation to that report expressly, it seems clear from the terms of his judgment that he drew an inference of partisanship from the terms of that report. The trial Judge also observed that Dr Edibam did not examine the respondent until 2½ years after the events giving rise to his claim, in terms which make it clear that he considered this delay diminished the significance of his evidence. He also observed that Dr Edibam placed reliance upon the history taken, and observations made, by Dr Bell in forming his opinion. Given the findings made as to the inaccuracy of that history and the opinions expressed by Dr Bell, plainly the trial Judge regarded this as a weakness in the evidence of Dr Edibam.
The trial Judge also observed that the firmness of the view expressed by Dr Edibam in relation to the lack of movement in the vehicle was a weakness in his evidence. That observation is explained by his later finding to the effect that the respondent's vehicle did in fact move, albeit only a short distance and his further view that in any event, the vehicle may have rocked on its own suspension or the respondent's body may have been accelerated and decelerated without the vehicle necessarily having had to move. Those findings are the subject of a separate ground of appeal, to which I will later refer, but if those findings stand, it is clear that they are in conflict with the facts assumed by Dr Edibam for the purposes of formulating his opinion and which would, therefore, obviously effect the weight appropriately given to that opinion.
The appellants complain that the trial Judge failed to give particulars for his conclusion that Dr Edibam had a barely concealed bias or mindset in his evidence. However, I am not at all sure that the obligation to provide reasons would go so far as this submission would suggest, but in any event the trial Judge's reference to the second report of 3 August 2001 provides a sufficient foundation for that conclusion. In my opinion, an inference to the effect that the second report was written to encourage the solicitors for the appellants to undertake further investigations into the movement of the vehicle, the outcome of which could be used to resist the respondent's claim is an inference that was open to the trial Judge and which he inferentially found (albeit not explicitly). The appellants also complain that the trial Judge's reliance upon Dr Edibam's assumption that there was no movement of the vehicle to diminish the weight of his evidence is flawed because there was no evidence to the effect that the vehicle moved. However, as I have already pointed out, this submission is simply wrong; the respondent did give evidence to the effect that the vehicle may well have moved and there was no evidence to the contrary. In any event, the respondent gave uncontradicted evidence to the effect that his body had been accelerated and decelerated on each occasion of impact.
As with Dr Bell, the appellants also complain that the trial Judge did not review in detail the oral evidence given by Dr Edibam. However, this complaint is, in my opinion, answered in the same way as the similar complaint made in respect of Dr Bell's evidence; namely, that having determined to reject the evidence given by Dr Edibam for the reasons which he gave, little point or purpose would have been served by rehearsing that evidence at length.
In my opinion, the reasons given by the trial Judge were quite adequate to explain his rejection of the evidence given by Dr Edibam. Because of the adequacy of those reasons, it seems, to me, to follow that there can be no question of bias, either actual or apparent, in the approach taken by the trial Judge to the evidence of Dr Edibam. In my opinion, there is no substance in grounds 2 and 3.

Ground 4 - Dr Rosenthal

This ground complains of apparent bias against Dr Rosenthal.
The trial Judge's findings in relation to Dr Rosenthal commence with the observation that he was the most impressive of the medical witnesses called on behalf of the appellants. This is an unlikely start to a judgment which would excite a suspicion of bias in a fair‑minded lay observer. In his reasons for decision, the trial Judge sets out significant portions of the reports provided by Dr Rosenthal and which supported that witness's conclusion that the respondent's injuries were not caused by the motor vehicle accident. The trial Judge then observed:
"Dr Rosenthal regularly gives evidence in cases of this kind on behalf of the defendant, in reality an insurance company. His mode of expression and report writing suggests that he regards himself as a medical inquirer who, sleuth-like, meticulously reviews all of the contemporaneous documentation and history and then forms an opinion. He tended to argue the case for the defendant both in his reports and in his evidence. That is not to say that his view should be discounted, but, as he would put it, his views need to be assessed in the context of their formulation."
The trial Judge went on to observe that a significant plank of the reasoning adopted by Dr Rosenthal was his assumption that the appellant did not suffer any pain in his back within hours of the motor vehicle accident.
The trial Judge also observed that Dr Rosenthal was quite impressive as a witness in his evidence‑in‑chief, being forthright, firm and definite in his views. He then analysed the evidence given by Dr Rosenthal in cross‑examination and concluded that his evidence was inconsistent in relation to the significance of the observation made by Mr Stacey of tenderness during palpation of the lumbar spine on 11 December 1998.

The trial Judge also observed that Dr Rosenthal had placed reliance upon the history taken by Dr Bell, and then observed:
"I have some concerns about the effect that reliance upon Dr Bell's reporting, about which I have already made some remarks, has upon Dr Rosenthal's opinion. Putting that to one side however it is quite clear that in a medical sense Dr Rosenthal's evidence strongly is to the effect that the motor vehicle accident did not cause the plaintiff's spinal symptoms. Of course there may be a difference between medical and legal causation.
As will be apparent from these Reasons so far, I have a favourable view of the plaintiff and his witnesses. The plaintiff has the burden of proof to satisfy the Court on the balance of probabilities that his case has been made out. With varying degrees of impressiveness the plaintiff's medical witnesses support his case on causation. Although I found Dr Rosenthal's evidence, as I have indicated, to be impressive, on the balance of probabilities I prefer the plaintiff's case and I am satisfied on the balance of probabilities that it was the motor vehicle accident that occurred on 11 November 1998, that set in train the processes that caused the plaintiff to have the cervical and lumbar symptoms about which he complains."
In argument, the appellants relied heavily upon the decision of the High Court in CSR Ltd v Della Maddalena (2006) 80 ALJR 458. In particular, significant reliance was placed upon the joint judgment of Callinan and Heydon JJ in that case. However, it is to be observed that their Honours were in dissent and further, that the basis of their Honours' conclusion was a failure by the Full Court in that case to afford notice to the parties of the prospect of a positive finding being made in favour of the medical practitioners concerned because of their greater medical experience. As I have observed, ground 4 is not based upon a denial of procedural fairness in the sense of lack of opportunity to meet the argument, but on the basis of apprehended bias. This was confirmed by counsel for the appellants during the course of the hearing of the appeal.
On the subject of apprehended bias, neither Gleeson CJ or Kirby J, who comprised two of the majority members of the Court, considered that the observations of the Full Court in that case gave rise to such an apprehension. The other member of the majority, Hayne J, agreed with the dissentients as to the denial of procedural fairness in the Full Court by the failure to give notice of the matters in support of the evidence of the medical practitioners upon which reliance was to be placed. It can thus be seen that although there was a majority in that case in favour of the proposition that failure to give notice of the positive matters to be relied upon in support of the medical practitioners' evidence constituted a denial of procedural fairness, there was no support for the proposition that the expression of those positive views demonstrated apparent bias towards the practitioners. This is the essence of the appellants' ground in this case.
That is, of course, not to say that there is not authority to support the proposition that the creation of an appearance of a preconceived adverse view about a particular witness provides a sufficient apprehension of bias to vitiate the decision. Plainly there is authority in favour of that rather obvious proposition (Vakauta v Kelly (1989) 167 CLR 568, 572). The question in the present case is whether the observations made by the trial Judge, in respect of the practice of Dr Rosenthal giving evidence on behalf of defendants and their insurers and of the characteristics which the trial Judge had observed, were such as to give rise to that apprehension.
Although the matter is not entirely free from doubt, in my view, the answer to that question in this case is provided by an evaluation of those observations in the context of the general approach taken by the trial Judge to the evidence of Dr Rosenthal. As I have endeavoured to demonstrate, it is clear that the trial Judge gave detailed and serious consideration to that evidence and on a number of occasions expressed the view that Dr Rosenthal was an impressive witness. It is not at all clear that he actually rejected the evidence of Dr Rosenthal, but rather brought it into the balance against the evidence which he had received from the medical practitioners called on behalf of the respondent. In weighing that balance, he ended up concluding that the evidence of the medical practitioners called on behalf of the respondent was to be preferred. Having regard to the serious consideration which the trial Judge gave to Dr Rosenthal's evidence and his careful analysis of it, in my opinion, the reasonable and intelligent lay observer whose hypothetical impressions provide the yardstick to be applied when questions of this kind arise, would not have concluded that the trial Judge had a preconceived mindset against the acceptance of Dr Rosenthal's evidence. In my opinion, ground 4 should be rejected.

Ground 5 - causation

Ground 5 alleges that the finding of the trial Judge to the effect that the symptoms of back injury suffered by the respondent were caused by the motor vehicle accident on 11 November 1998 were against the evidence and the weight of the evidence. Various particulars are given in support of that ground which it is unnecessary to set out in detail. I hope I do no injustice to the appellants' argument if I summarise it by observing that it relies heavily upon allegations of inconsistency in the evidence given by the respondent when compared with documents he wrote much closer in time, particularly with regard to the time of onset of pain in his lower back. The contemporaneous documents relied upon in particular are the accident report form of 1 December 1998 and the letter written to the Insurance Commission on 19 March 1999 and to which I have referred.
The trial Judge gave quite specific consideration to those documents in the context of his evaluation of the respondent's evidence. Although inferences could have been drawn from them which are adverse to the evidence of the respondent, neither directly and specifically contradicts the evidence which he gave in relation to the time of onset of pain in his lower back and the terms of each were explained by the respondent in his evidence. Applying the approach to appellate review enunciated by the High Court in cases such as State Rail Authority of NSW v Earthline Constructions Pty Ltd(1999) 73 ALJR 306 and Fox v Percy (2003) 214 CLR 118, there is nothing glaringly improbable or contrary to compelling inference in the conclusion arrived at by the trial Judge after evaluating this evidence. As his Honour pointed out, there was clear evidence from Mr Stacey which corroborated the evidence of the respondent to the effect that he was experiencing pain in his lower back prior to the slip which occurred on 15 December 1998. The respondent's evidence in that regard is also corroborated by the history which he gave to Dr Walker and which Dr Walker recorded, albeit that history was given two days after the slip, on 17 December 1998. As I have observed, the respondent's evidence was to the effect that the pain in his lower back came on gradually after the motor vehicle accident and worsened in the following weeks, to the point where he required treatment in early December, prior to this slip. His consultations with Mr Stacey prior to the slip on 15 December substantiate that evidence. In my opinion, it was entirely open to the trial Judge to accept that evidence and this ground should be dismissed.

Grounds 7, 8 and 9 (there is no ground 6) - the motor vehicle accident

Grounds 7, 8 and 9 can be considered together and were addressed together in argument. Essentially, they complain of the findings made by the trial Judge as to the means by which the respondent suffered his back injuries in the course of the motor vehicle accident. It is asserted that there was no evidence to enable the trial Judge to conclude that the vehicle in which the respondent was sitting in fact moved, and further that the process of reasoning used to sustain his conclusion was not the subject of evidence, nor notified to the parties during the course of the hearing.
These complaints centre upon the following paragraph from the reasons of the trial Judge:
"I do not accept the defendant's case that the Nissan Patrol did not move. I do not think one can say that because it moved only a short distance, even half a metre, that there is therefore no significant acceleration/deceleration to be experienced by a passenger. In my view a sudden acceleration albeit for a very short distance can produce some form of acceleration/deceleration. There was a lot of force applied to the vehicles behind the Nissan Patrol. The bending of the 16 millimetre metal tow hitch is something that I think would be easy to under-estimate. Obviously I am not an expert in physics, and there has been no expert evidence called on the point, but in my view there would have been a diffusion of energies of impact in the trailer and in the hitch, obviously, but it was a big dual axle trailer and it would have applied force directly to the Nissan which must have had some acceleration/deceleration. In my view the vehicle does not need to move, necessarily, for there to be some acceleration/deceleration. For example, a vehicle can rock on its own suspension."
The allegation that there was no evidence to sustain the finding that the vehicle moved forward can be shortly addressed. Plainly, the respondent did give evidence to the effect that the vehicle may have moved forward at the time of collision, but he could not say whether it had or had not, or how far it had moved. There was, however, evidence of two substantial impacts and of damage to the tow bar of the vehicle in which the respondent was sitting, from which an inference could be drawn to the effect that it was more likely than not that the vehicle in which the respondent was sitting may have moved to some extent. There was no evidence to the effect that it did not move, apart from the hearsay evidence of Dr Edibam as to the statements he said were made by the respondent.
But in any case, it seems to me that the question of whether the vehicle moved or did not move, was not of great significance. Rather, the question was whether the body of the respondent was accelerated and then decelerated with a degree of force. The emphatic evidence of the respondent was to the effect that he did suffer such acceleration and deceleration on two occasions. This was evidence which the trial Judge was quite entitled to accept and did accept. It was evidence which, if accepted, entirely explained the injuries which the respondent alleges he suffered in the course of that accident, consistently with the medical evidence produced at trial. In my opinion, there is no substance in these grounds.

Ground 10 - last earnings in January 1999

This ground complains of the award of $3320 of lost earnings for the period of four weeks during which the respondent was unable to work in December 1988 and January 1999. It was not substantially pressed in written or oral submissions. It is without substance. The trial Judge made that award by reference to the average income derived from the provision of the respondent's services during the year ended 30 June 1999. That seems to me to have been an entirely appropriate course.

Ground 11 - quantum of damages

This ground contains a number of separate and distinct allegations. The first is to the effect that there was no, or no sufficient evidence to sustain the awards made in respect of past lost earning capacity for the periods up to 3 February 2003, calculated by reference to the payments made to the respondent's son. The evidence of both the respondent and his son was to the effect that the employment of his son was necessary in order to undertake the physical tasks which the respondent was unable to perform by reason of his back injuries. The amounts paid to the respondent's son were established by the evidence. I can see no reason why they do not provide a satisfactory measure of loss suffered over that period (see, for example, O'Brien v Dungdon (1965) 39 ALJR 78, 78 ‑ 79.
The second allegation contained within this ground is an allegation to the effect that having found that no loss had been established to the requisite degree in respect of the period between 3 February 2003 and 30 June 2003, the trial Judge had no basis for finding that there was lost earning capacity in respect of the period after 1 July 2003. While there is a certain superficial inconsistency between those two conclusions, upon analysis of the factual circumstances pertaining to those two periods, the inconsistency is, in my view, resolved.
During the period from 3 February 2003 to 30 June 2003, the respondent was working as an electrician and did not find it necessary to employ his son to undertake the duties he was unable to perform. The trial Judge was not satisfied from the evidence adduced by the respondent that the limitation upon his duties during that limited period in fact caused any reduction in income earned by the partnership. It may be observed that this approach may have been a little harsh to the respondent, given the evidence which the trial Judge accepted as to his reduced capacity and which would, in all probability, have manifested itself in reduced earnings.
However, from 1 July 2003 onwards, the respondent accepted the advice given by Dr Popovic and Dr Walker to the effect that he should cease work as an electrician. The trial Judge found that the respondent did have a continuing capacity to work as an electrician, which again, might, in the light of the evidence of Drs Popovic and Walker seem to have been a little harsh as against the respondent. However, he assessed his diminution in working capacity by reference to the cost of employing an assistant to undertake the physical work which he was precluded from undertaking by reason of his back injuries.
Accordingly, the difference between the period prior to 1 July 2003 and the period after that date is that in respect of the former period, there was evidence of income having been earned; whereas in respect of the latter period, the Court had of necessity to make an assessment of diminished earning capacity during a period in which no income was earned. On the basis of the evidence adduced, the trial Judge found that the respondent had failed to discharge the onus of showing loss in respect of the former period, but had discharged the onus in respect of the latter because of the inferential conclusion that, notwithstanding the views of Dr Popovic and Dr Walker, the respondent would have been able to work as an electrician if he had the support of a labourer. For the reasons I have endeavoured to set out, this seems to me to have been a finding that was open to the trial Judge, albeit perhaps a finding that was, on one view, somewhat harsh as against the respondent.
The third allegation contained within ground 11 is an allegation that the trial Judge failed to take account of the fact that the respondent was in an equal partnership with his wife, with the result that his entitlement to past lost earnings was in fact one‑half of each of the amounts awarded. During the course of the hearing, the same proposition was advanced in relation to the estimate of future earnings, on the basis that the evidence compelled the conclusion that but for his injuries, the respondent's earnings would still have been derived from his equal share of the partnership with his wife.
In my opinion, this argument misconceives the basis upon which damages are awarded for lost earning capacity in cases of personal injury. As has been enunciated many times, where a person is injured as a result of the tort of another, by reason of which injuries the person is rendered less able to work, that for which compensation is awarded is lost earning capacity, not simply lost earnings. In the context of earnings derived through a partnership in which the whole of the income is essentially derived from the personal exertion of the person who has suffered injury, which partnership is terminable at will, the High Court has made clear that the amount which is to be compensated is that which the injured person has lost; namely, what he or she would (as opposed to could) have expected to have had under his or her control and at his or her disposal by utilising the working capacity impaired as a consequence of the injuries sustained (see Husher v Husher (1999) 197 CLR 138).
In that case, the High Court upheld an appeal from a decision of the Court of Appeal of Queensland (see Husher v Husher, unreported; FCt of SCt of Qld (McPherson, Thomas JJA and Derrington J); 21 August 1998) in which that Court had unanimously considered it should follow its previous decision in Seymour v Gough [1996] 1 Qd R 89. Seymour v Gough (supra) was characterised as establishing that in cases involving lost or impaired earning capacity which had, prior to injury, been used to earn profits for a partnership from which the profits derived by the partners were not directly referrable to their contribution, the value of that earning capacity was to measured by:
"… the loss of earning capacity that would have produced income actually received by the injured party in the circumstances that would have prevailed if the injury had not occurred. Those circumstances include the reduction in his actual income consequent upon the partnership arrangement.
Under this method, it is accepted that in suitable circumstances an additional allowance should be made for the positive contingency that, absent such injury, the partnership may have otherwise terminated at some time in the future so that he would then have received the full return from his earnings … " (Husher, unreported (supra) per Derrington J)
This approach was contrasted to that described in the following terms:
"The Batt v Wilkinson principle would have assessed the loss on the full value of the plaintiff's capacity to earn income actually exercised by him even though he had chosen to divert the benefit of part or all of the proceeds of that exercise to some other party by some means such as a partnership. It says that this represents his loss of capacity that he would have exercised, and that even though he may have diverted part of the fruits of his labour away from himself to another, that is something that he has lost. In the present case that would lead to an assessment based on the value of the earnings which the appellant brought to the partnership." (Husher, unreported (supra) per Derrington J)
The appeal to the High Court was allowed unanimously, with that Court holding that on the facts of that case the amount to be allowed for lost earning capacity, and in the context of that case, lost capacity to earn in the future, was the revenue which would have been injected into the partnership had the plaintiff not sustained his injuries, without adjustment for any profits that might have been split with other partners had the partnership continued. The High Court must therefore be taken to have disapproved of the approach taken in Seymour v Gough (supra).
Although the judgment of the High Court is directed to the question of lost future earning capacity, I do not read any of the judgments in that Court as drawing a distinction in principle between the assessment of the value of the earning capacity that has been lost up to the point of trial, and the value of the earning capacity lost in the future. On the contrary, in my opinion, the following passage at [7] from the joint judgment compels the contrary conclusion:
"Since at least Graham v Baker [(1961) 106 CLR 340] it has been recognised that it is convenient to assess an injured plaintiff's economic loss 'by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss' [at 346 ‑ 347]. But damages for both past loss and future loss are allowed to an injured plaintiff 'because the diminution of his earning capacity is or may be productive of financial loss' [Graham v Baker at 347]. Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained."

Similarly, after reviewing the decisions in Seymour v Gough (supra) and Batt v Wilkinson (supra), in the joint judgment it was observed at [17]:
"Those principles require identification of what earning capacity has been impaired or lost and what financial loss is occasioned by that impairment or loss. In the present case there is no doubt that the capacity that the appellant lost was a capacity to earn whatever he could have earned working as a block layer. But the injury does not stop at what the appellant could have earned. It is necessary to ask what loss the appellant suffered because of the diminution of that capacity and that invites attention to what would have happened but for the negligent infliction of injury (as best a court can predict that future course of events). The latter question (what would have happened but the negligent infliction of harm) was said to be answered, in this case, by identifying that it was highly probable that the partnership at will would have been maintained but for the occurrence of the accident."
As I read that passage in the joint judgment, the relevant temporal point of distinction is the point in time at which earning capacity is lost or impaired; that is, the date of the accident, not the date of the trial. Of course, the suffering of a significant personal injury will alter the course of events which would otherwise have occurred. Thus, given that the measure of damage is the sum required to put the innocent party in the position he or she would have been in had he not sustained the wrong for which he is being compensated (Husher (supra)), the hypothesis which is being explored by the High Court is not what would have happened after the trial but, rather, what would have happened but for the accident.
Similarly, at [18] their Honours observed:
"The financial loss occasioned by impairment of earning capacity is the loss of what (if there had been no accident) the injured plaintiff would (as opposed to could) have expected to have had under his or her control and at his or her disposal by exercising that capacity. We refer to 'control' and 'disposal' because what the plaintiff has lost are the financial rewards from work that are the rewards the plaintiff would have been able to direct to whatever purpose or destination he or she chose."
As I read that passage, the question to which attention must be directed is the value of the earning capacity which the injured plaintiff would have had the ability to apply to the derivation of profit but for the injuries which he or she suffered. That is not a question which is affected by the point in time at which the trial is held, although the mathematical precision with which the lost capacity can be valued may turn upon whether one is measuring the past or the future.
It is to be remembered that in Husher there was a finding of fact that the partnership would, in all probability, have continued had the plaintiff not suffered his injuries. Thus, the hypothetical future scenario was, on those facts, identical to the factual circumstances of this case in which the partnership had in fact continued for a period after the plaintiff suffered his injuries. Given that finding of fact, it seems to me to necessarily follow that the decision of the High Court establishes that no different assessment of value follows from answering the question of whether or not a partnership terminable at will has in fact, or would in fact, have continued but for the suffering of personal injury.
Rather, as I read the decision of the High Court, the significance of the capacity of the injured party to terminate the partnership at will, in a case in which the profits of the partners are not derived by reference to their contribution, is that it is relevant to the assessment of that which has in fact been lost; because that which has been lost is, in that circumstance, that which the injured person chose to contribute to the partnership. In a circumstance in which the partnership was for a fixed term or in which persons other than the injured person contributed significantly to the profits derived, that which the injured person has actually lost may need to take account of the precise terms of the partnership arrangement.
But, where the partnership is terminable at will, there are no restraints upon the capacity of the plaintiff to elect to deploy his other earning capacity elsewhere, and that capacity is therefore to be valued without diminution because of the partnership.
In my view, the decision of the High Court establishes, on facts relevantly identical to those of this case, that the value of the earning capacity lost by reason of the injury is not to be diminished by deduction of the profits which the plaintiff would have, or indeed did share with his wife.
That approach to the construction of the joint judgment in Husher is consistent with the reference in the joint judgment of their Honours to the decision in Spargo v Haden Engineering Pty Ltd (1993) 60 SASR 39, without apparent criticism. In that case, Perry J (with whom the other members of the Court agreed on this point) observed, at 53:
"It might have been contended that the only amount to be allowed by way of loss of earning capacity for the plaintiff was the amount represented by whatever distribution was made to him by the family trust. Such an approach, however, would have been inappropriate, as what is compensated for is loss of earning capacity rather than actual loss of earnings. In this case, the starting point in determining the true measure of the incapacity was the total income produced by reason of the plaintiff's exertions in the business, even although by reason of the mechanism of the family trust, that income was distributed, at least in last measure, to other family members."
In Husher (supra) Callinan J arrived at the same conclusion as those members of the Court who wrote jointly, albeit for reasons slightly differently expressed. However, in my view, his Honour did not draw any distinction between the principles applicable to the assessment of the value of earning capacity lost prior to trial, and the value of the capacity lost after trial, as the following passage at 158 [53] demonstrates:
"To compensate the plaintiff in this case upon the basis of his actual capacity to earn income rather than by reference to the income that was actually attributed to him in the partnership accounts does not offend the well‑established principle that a defendant takes the plaintiff as he finds him [Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 406 ‑ 407]. That principle must hold good whether it is to the disadvantage or the advantage of the defendant. But I do not think it has such an application here as to lead to any reduction in the appellant's damages. How in truth did the defendants find the plaintiff in this case? At the time of the accident the plaintiff was choosing to employ the whole of his earning capacity for the benefit of his family. He chose to do that because there were income tax advantages in doing so. However in so acting he was also discharging the moral and legal obligations that he owed to his spouse. There was nothing to hold the appellant to that arrangement indefinitely. Both during the period before the trial and in the future the appellant was free to disengage himself from the partnership and to utilize his earning capacity in whatever way he saw fit … "
Further, his Honour cited with apparent approval the decisions in Ward v Newalls Insulation Co Ltd [1998] 1 WLR 1722 and Taroporewalla v Berkery [1983] 3 NSWLR 28.
In Ward's case, the Court of Appeal observed at 1732 ‑ 1733 that:
"[T]he agreement between Mr. and Mrs. Ward was not formal, in that there was no formal partnership agreement entered into, and nothing in the arrangement alleged committed the partnership to paying 25 per cent. of the profits to Mrs. Ward for any period of time. Even accepting that this informal agreement between husband and wife was intended to create a legal contractual relationship between them, there could not conceivably be an implied term of that arrangement that notice was required for termination of that agreement. The reality was that it was Mr. Ward's earning capacity that would have produced the lost profits, and on the evidence the money received as a result of Mr. Ward's efforts ended up in the couple's joint account anyway. It was immaterial whether that money was credited to husband and wife: it would have ended in the joint account anyway."
When that passage is read in the context of the judgment as a whole, it seems to me to be clear that the question of terminability of the arrangement is addressed by the Court of Appeal for the purpose of assessing the value of that which is lost, not for the purpose of assessing what would in fact have happened, or indeed what did in fact happen in relation to the partnership after the plaintiff suffered his injuries. That, I think, is clear from the following passage, at 1733 in Ward:
"The reality is that Mr. Ward could and would have reorganised his affairs if it had been suggested to him that the legal effect of this arrangement was to halve the damages to which he was otherwise entitled. Thankfully, that is not the law."
Again, this passage seems to me to make clear that that which is to be assessed is lost earning capacity, which in turn may be affected by the terminability of the partnership arrangement, but not by the events which in fact occurred after the commission of the tort.
Taroporewalla (supra) seems to me to be to the same effect, as is the subsequent decision of the Court of Appeal of New South Wales in Future Look Landscaping Pty Ltd v Hanlon, unreported; SCt of NSW, CA 40658-1997; 8 July 1998; (Spigelman CJ, Sheller and Giles JJA).
In my opinion, these authorities compel the conclusion that that which must be valued is the earning capacity lost by the plaintiff by reason of the injuries he or she has suffered. That capacity is to be measured by reference to circumstances which existed at the time of commission of the tort and by reference to the assessment of the earnings which that capacity could have been used to generate but for the commission of the tort. Thus, the rights and obligations to which the plaintiff had subjected the relevant earning capacity at the time he or she suffered injury will be relevant to the assessment, but, in my view, the question of whether or not the plaintiff did in fact exercise a right to terminate the partnership agreement, subsequent to the suffering of injury, will not be relevant.
I can see no reason why the principles governing assessment of lost earning capacity would vary depending upon whether damages are being awarded in respect of past or future lost earning capacity. In each case that which has been lost is the capacity of the injured person to inject the fruits of his or her earning abilities into the partnership of which he or she was a proprietor. In my opinion, it would be entirely capricious and unreasonable to apply a substantively different basis to the assessment of loss based merely upon the happenstance of the date of trial. That which has been lost; namely, earning capacity, is the same before and after trial. Any contrary approach would also reward tortfeasors by reference only to the particular form of business structure adopted by the person who has suffered injury and loss by reason of the commission of the tort without regard to the reality and true substance of their actual loss and contrary to what I take to be the principle established by the High Court in Husher v Husher (supra).
In this case, with the exception of the award in respect of the period of four weeks during December 1998 and January 1999, the assessment made by the trial Judge of both past and future lost earning capacity was based on the cost of engaging a labourer to perform the physical tasks which the respondent was unable to perform and not by reference to either the revenue or the profits of the partnership. In cases where damages are awarded by reference to partnership profit, adjustment may be necessary to take account of the contribution made by others to that profit such as, in this case, the respondent's wife. However, with the exception of the four‑week period to which I have referred, this is not such a case and any adjustment to the award for that period to reflect the wife's contribution would, in my view, be tinkering
In this case, the assessment made by reference to the cost of engaging labour to perform tasks which the respondent was unable to perform, provides an accurate measure of the earning capacity which the respondent lost by reason of his injuries and puts him in the position he would have been in but for those injuries by notionally restoring his pre‑accident capacity. With respect to those who hold a contrary view, I can see no reason why that cost should be treated as a partnership expense; because what is being measured is the value of the earning capacity which the respondent had at his disposal and would have elected to inject into the partnership. Treating the labour cost as a partnership expense seems, to me, to impermissibly confuse damages measuring capacity by reference to the cost of engaging substitute labour with those measured by reference to profits foregone.
I would therefore dismiss ground 11 in all its aspects.

Ground 12 - lost future earning capacity

This ground alleges that there was no evidence to sustain the assessment made by the trial Judge of lost future earning capacity, based upon his assessment of the cost of employing a labourer over the balance of the respondent's working life. Counsel for the appellants made clear during the course of argument that the complaint was not made in respect of the particular sum of $400 per week adopted by the trial Judge, but rather in relation to the approach which he took in principle.
For reasons which I have already given, it seems to me that, if anything, the approach taken by the trial Judge was somewhat harsh as against the respondent. Nevertheless, there was, in my view, ample evidence to sustain the conclusion of the trial Judge to the effect that at least one measure of the respondent's diminished working capacity was the cost of engaging a person to undertake the physical activities which the respondent was no longer able to undertake. That approach was plainly justified by the evidence as to the course which the respondent in fact adopted over the period of four years during which his son was employed to undertake those activities. As no complaint is made in respect of the amount of $400 per week used by his Honour to calculate the cost of engaging such a person, there seems to me to be no substance in this ground of appeal.
The amended Notice of Appeal contained a ground 13, but this ground was abandoned at hearing.

The Cross-Appeal

The respondent filed a cross-appeal complaining of inadequacies in the awards made the trial Judge in relation to past special damages and future medical expenses. However, at the hearing of the appeal, counsel for the respondent accepted that any amendments made by this Court in response to those grounds would be contrary to the principle against "tinkering" with damages awards in personal injury cases and on that basis did not press the cross‑appeal. In those circumstances it is, I think, unnecessary to give substantive consideration to the issues raised in the cross‑appeal which should be dismissed.

For these reasons, in my opinion both the appeal and cross‑appeal should be dismissed.
McLURE JA: I have had the advantage of reading the reasons for judgment of the Chief Justice with which I am, save on one issue, in general agreement. The matter on which I hold a different view relates to the determination of past economic loss. I also wish to make some additional observations on the grounds relating to the evidence of Mr R Edibam (orthopaedic surgeon) and Dr J Rosenthal (rehabilitation physician).
The appellants claim that the trial Judge demonstrated in his reasons apparent bias towards Mr Edibam (ground 2) and that he failed to give adequate reasons for rejecting Mr Edibam's evidence (ground 3). The appellants also claim that the trial Judge demonstrated in his reasons apparent bias towards Dr Rosenthal (ground 4).
The trial Judge did not accept Mr Edibam's evidence for a number of reasons. First, because the witness had "a barely concealed bias or mindset in his evidence particularly in cross‑examination". Secondly, and related to the first ground, the witness lacked independence, relying on a second letter dated 3 August 2001 from Mr Edibam to the appellants' solicitors ("the second letter"). Thirdly, Mr Edibam relied on observations made by Dr Bell and the trial Judge had concluded that little or no weight should be placed on Dr Bell's evidence. Finally, the trial Judge noted that Mr Edibam's opinions were "not dissimilar" to those of Dr Rosenthal which suggests the trial Judge's objective reasons for not preferring Dr Rosenthal's medical opinion on relevant issues also applied to Mr Edibam's opinions.
The appellants' claim of a reasonable apprehension that the trial Judge was biased relies on a number of separate threads. First, the trial Judge's failure to explain why and on what evidence he formed the conclusion that Mr Edibam had a barely concealed bias or mindset. This is also the basis for the appellants' challenge to the adequacy of the trial Judge's reasons. Secondly, that it was not open to conclude that Mr Edibam lacked independence. Thirdly, the trial Judge did not advise counsel of his views regarding Mr Edibam or seek further submissions from the appellants. Finally, the appellants assert the trial Judge had, by the time Mr Edibam gave evidence, formed the view that the vehicle had moved despite there being no evidence to support such a conclusion. I will deal with each of these matters in turn.

The principles applicable to the requirement for, and adequacy of, reasons were detailed by the Full Court in Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 at [26] ‑ [29]. For present purposes it is sufficient to note that in determining sufficiency, it is necessary to look at the reasons as a whole and, if necessary, in the context of the evidence, to see if they give the sense of what was intended in a way that achieves the required function and purpose of reasons: Garrett v Nicholson (1999) 21 WAR 226 at 248 per Owen J.
As stated by the trial Judge, his assessment that Mr Edibam had a barely concealed bias or mindset is based primarily on Mr Edibam's cross‑examination as well as the second letter. The cross‑examination shows the witness to be argumentative and aggressively defensive of his stated opinions which on occasions did not travel beyond dogmatic assertion. A consideration of the cross‑examination as a whole supports the trial Judge's conclusion, as a matter of impression, of closed‑minded partiality. The fact and content of Mr Edibam's second letter also provides support for the trial Judge's assessment that Mr Edibam did not have the independence and objectivity required of an expert. Mr Edibam's first letter records the respondent's history that the vehicle did not move. In his second letter, Mr Edibam highlights that history and its significance (to him) for the purpose of having the appellants' solicitors get that history confirmed. The trial Judge's assessment of Mr Edibam is reasonably open on the evidence. Further, the trial Judge's reasons, albeit not ideal, are sufficient.
The remaining matters on which the appellants rely are not relevant to bias. They are, in any event, without foundation. There was no obligation on the trial Judge to advise counsel for the appellants of his views regarding Mr Edibam, or seek further submissions from them, before delivering judgment because Mr Edibam's independence and impartiality were squarely challenged by the respondent in cross‑examination. As it was an issue at the hearing, procedural fairness did not require the matter to be raised again by the trial Judge. Finally, there is no basis for a conclusion that the trial Judge had, by the time Mr Edibam gave evidence, formed a concluded view that the vehicle had moved. I would dismiss grounds 2 and 3.

I would set aside the award for past loss of earning capacity and interest thereon and hear from the parties on the amounts to be awarded,

calculated in accordance with these reasons. I would otherwise dismiss the appeal and the cross‑appeal.

BUSS JA: The grounds of the appeal and the cross‑appeal are described, and most of the material facts are recounted, in the reasons for judgment of the Chief Justice.

Appeal

I agree with the Chief Justice, for the reasons he gives, that grounds 1‑10 of the appeal are without merit. I also agree with the additional observations of McLure JA on grounds 2, 3 and 4.
Ground 11 of the appeal alleges that the learned Judge erred in law in:
"finding that the Plaintiff [respondent] had suffered past loss of earning [sic] of $6,155.00 for the year ended 30 June 1999, $13,082.00 for the year ended 30 June 2000, $18,655 for the year ending 30 June 2001, $27,181.00 for the year ended 30 June 2002, $17,659.00 for the period from 1 July 2002 to 3 February 2003, and $31,200.00 for the period from 1 July 2003 to 28 January 2005. In each of the above periods there was no or no sufficient evidence to support the finding that these losses had been suffered by the Plaintiff [respondent]. Alternatively, the learned trial judge failed to take into account that the Plaintiff [respondent] was in an equal partnership with his wife such that his entitlement to past loss of earnings [sic] was one‑half of each of the above amounts."
I agree with the Chief Justice, generally for the reasons he gives, that the first and second allegations in ground 11 should fail. In my opinion, however, the third allegation in ground 11, which concerns the principles enunciated in Husher v Husher (1999) 197 CLR 138 and whether those principles apply to the respondent's claim for past loss of earning capacity in respect of the period in which he was carrying on business in partnership with his wife, has merit. My reasons in relation to this issue, which are significantly different from those of McLure JA, are set out below.
In early 1983, the respondent and his wife commenced carrying on business in partnership under the trading name, J & R Electrics. The nature of the partnership business was the provision of electrical contracting services. The partnership carried on business on a continuous basis between early 1983 (when it was formed) and 30 June 2003 (when it

was dissolved). The respondent and his wife were equal partners. They shared profits equally.

Prior to the accident, the partnership's income was derived from work which the respondent performed exclusively. After the accident, the respondent was assisted, for a substantial period, by his son, Stephen Burns, in performing that work. The partnership paid the respondent's son a salary. At all times, prior to and after the accident, the respondent's wife undertook accounting and administration duties, including the preparation of invoices, bookkeeping, credit control and the preparation of income tax returns. She spent, on average, 15 hours per week carrying out that work.
The revenue, expenses, profit and allocation of profit during the period from and including the financial year ended 30 June 1995, up to and including the financial year ended 30 June 2003, was as follows:

Financial Year Ended	Revenue	Expenses	Profit	Distribution of Profit to Respondent	Distribution of Profit to Respondent's Wife
30 June 1995	$96,062.00	$71,901.00	$24,161.00	$12,081.00	$12,080.00
30 June 1996	$75,908.00	$57,476.00	$18,432.00	$9,216.00	$9,216.00
30 June 1997	$94,474.00	$66,006.00	$28,468.00	$14,234.00	$14,234.00
30 June 1998	$87,058.00	$63,265.00	$23,793.00	$11,897.00	$11,896.00
30 June 1999	$133,532.00	$74,892.00	$58,640.00	$29,320.00	$29,320.00
30 June 2000	$118,383.00	$86,357.00	$32,026.00	$16,013.00	$16,013.00
30 June 2001	$88,491.00	$74,931.00	$13,560.00	$6,780.00	$6,780.00
30 June 2002	$100,779.00	$88,442.00	$12,337.00	$6,169.00	$6,168.00
30 June 2003	$129,742.00	$97,058.00	$32,684.00	$16,342.00	$16,342.00

That information was recorded in the partnership's income tax returns. The profit is profit before the payment of income tax. The profit and loss statements for the partnership during the period from and including the financial year ended 30 June 1995, up to and including the financial year ended 30 June 2003, reveal that no payments were made to the respondent or his wife by way of salary or wages. The sole remuneration derived by the respondent and his wife from the partnership business during that period was their equal share of the profits.

The respondent and his wife did not execute a partnership deed. It is to be inferred, from the respondent's evidence as a whole in relation to the partnership, that he and his wife did not agree upon a fixed term for the duration of the partnership. It was therefore a partnership at will. The respondent was entitled to determine the partnership at any time on giving notice in writing to his wife. See s 37(1) of the Partnership Act 1895 (WA).
A plaintiff who has suffered personal injuries as a result of the defendant's negligence should receive damages "in a sum which, so far as money can do so, will put him in the same position as he would have been in if … the tort had not been committed": Butler v The Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 at 191. Also see Todorovic v Waller (1981) 150 CLR 402 per Brennan J at 463; Husher, per Gleeson CJ, Gummow, Kirby and Hayne JJ, at 142 ‑ 143 [6].
A plaintiff's right of action for damages arising from personal injuries is complete at the time when his or her injuries are sustained. As Dixon CJ, Kitto and Taylor JJ observed in Graham v Baker (1961) 106 CLR 340, at 346 ‑ 347:
" … if it were possible in the ordinary course of things to obtain an assessment of his damages immediately it would be necessary to make an assessment of the probable economic loss which would result from his injuries. But … it has been found convenient to assess an injured plaintiff's loss by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss."
In Husher, Gleeson CJ, Gummow, Kirby and Hayne JJ noted, at 143 [7], that a plaintiff may recover damages for both past and future loss in that the diminution of his or her earning capacity is or may be productive of financial loss. Their Honours added:
"Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained."
The salient facts of Husher were these. The appellant/plaintiff and his wife carried on business in partnership. It was a partnership at will and profits were shared equally. The appellant's skill and labour generated the whole of the partnership income. His wife performed minor bookkeeping and message‑taking duties. The obvious purpose of the business structure was to minimise income tax by dividing the assessable income equally between the appellant and his wife. The appellant suffered personal injuries as a result of a motor vehicle accident caused by his wife's negligence. He sued his wife for damages. A component of the damages he claimed was for loss of earning capacity. The trial Judge held it was probable that, but for the accident, the partnership would have continued until the end of the appellant's working life. Damages for future loss of earning capacity were assessed on the basis that he would probably have received only half of the partnership profits, subject to adjustment for contingencies.
In Husher, Gleeson CJ, Gummow, Kirby and Hayne JJ identified, at 147 [18], the principle to be applied in assessing an injured plaintiff's claim for loss of earning capacity:
"The financial loss occasioned by impairment of earning capacity is the loss of what (if there had been no accident) the injured plaintiff would (as opposed to could) have expected to have had under his or her control and at his or her disposal by exercising that capacity. We refer to 'control' and 'disposal' because what the plaintiff has lost are the financial rewards from work that are rewards the plaintiff would have been able to direct to whatever purpose or destination he or she chose."
Their Honours then applied that principle to the facts of the case before them, at 147 [19] ‑ [20], as follows:
"The finding in this case about probable continuance of the partnership reveals how the appellant would, in all probability, have ordered his financial affairs - by an arrangement terminable at will under which, in return for services of negligible value, he would have shared with his wife 50 per cent of the net proceeds of his endeavours. But the finding about probable continuance of the partnership, standing alone, does not reveal how much the appellant would have had under his control and at his disposal.
There are two critical elements. First, the whole of the income of the partnership came from the efforts of the appellant and the exploitation of his earning capacity. As a matter of practical reality, his wife's contribution to the income was negligible. Secondly, the partnership was a partnership at will. The appellant would very probably have chosen to maintain those arrangements but that was his choice. If he chose to make some other arrangement concerning the fruits of his labour, effect would be given to that choice, whatever view his wife may have held. What the appellant would have had under his control and at his disposal but for the accident was, therefore, the whole of the fruits of his skill and labour. And it is, then, the whole of those fruits that he has lost. In this regard, the case is no different from the injured plaintiff who would probably have devoted some or all of the income earned in the future to charity (See, eg, Turenne v Chung (1962) 36 DLR (2d) 197)."
The determination of the value of an injured plaintiff's loss of earning capacity requires a careful examination of the facts of the particular case. The answer is not to be found by endeavouring to classify cases by reference to particular business structures and then attempting to formulate a rule of general application to all cases within the classification. As Gleeson CJ, Gummow, Kirby and Hayne JJ noted in Husher, at 149 [23], in the context of determining an injured plaintiff's future loss of earning capacity:
" … the inquiry is about what could the plaintiff have done in the workforce but for the accident and what sum of money would the plaintiff have had at his or her disposal. Only when those inquiries are pursued can a judgment be made about what capital sum to allow as damages for the impairment of the plaintiff's earning capacity. In doing so, regard must be had, of course, to all those contingencies of life that might reasonably be expected to affect the course of events in the future."
The judgment of Callinan J in Husher is not materially different from the joint judgment. Callinan J acknowledged, at 158 ‑ 159 [53], that the well‑established principle that a defendant takes the plaintiff as he finds him must hold good whether it is to the disadvantage or the advantage of the defendant. But his Honour held that an application of that principle to the facts in Husher did not require a reduction in the appellant's damages. The appellant was "a person who was free in all respects to utilise his earning capacity in whatever way he chose and who would undoubtedly have utilised it sensibly in his own financial interests as he saw them from time to time". His Honour then said, at 159 [54]:
"A case of this kind is a relatively simple one. However it will always be important in assessing the damages in cases in which the plaintiff is a partner or an employee of a company which he or she controls, or in which he or she has a substantial proprietary interest, to have regard to the realities and motivations underlying the arrangements which have been made, the plaintiff's capacity to disentangle himself or herself from them, and the likelihood that such a plaintiff would be foolish to act at any time other than in his or her own best financial, matrimonial and familial interests. On the other hand, an injured person who has entered into inextricable or virtually inextricable arrangements may be in a different position. Such a person may be one who has bound himself or herself under a restraint of trade or other negative obligation not to exploit his or her earning capacity for a period of years, or at all, or to do so in some limited way only. It is true, as many of the statements in the cases repeat, that each case will depend upon its own facts but the possibilities and likelihood of disentanglement from arrangements, and the virtual certainty that an injured plaintiff will look to his or her own total interests will always be important, if not conclusive factors in assessing economic loss."
In Conley v Minehan [1999] NSWCA 432, the respondent suffered personal injuries in a boating accident on 24 September 1992. He was a marine mechanic. Prior to the accident, Bryowl Pty Ltd ("Bryowl") acquired his business. The respondent and his wife were the directors of, and held an equal shareholding in, Bryowl. The net income of Bryowl was distributed as salaries to the respondent and his wife. The respondent's salary was higher, but there was not a significant difference. During the financial year ended 30 June 1993 the respondent's salary was about $20,000 and his wife's about $18,000. Prior to the accident the whole of the income of the business was generated by the respondent. His wife performed various duties which did not generate any income; for example, writing cheques, attending to the banking and, on occasions, looking after the business premises. The Court of Appeal of New South Wales held that the respondent's salary did not reflect his true earning capacity. The court decided that the wife's salary, after the deduction of a reasonable wage for the duties she performed, should be treated as the respondent's income. Mason P, with whom Powell and Beazley JJA agreed, said, at [43] ‑ [44]:
" … the principles enunciated [in the joint judgment] in Husher are capable of application to business structures other than partnerships (see also Callinan J at [54]). Seymour v Gough, which the High Court overruled, involved a family company.
The task in the present case facing the trial judge was to determine the extent to which the injury suffered by the respondent had been productive of financial loss to him. The findings established that the respondent was, in the sense discussed in Husher, in effective control of the income generated by him and channelled, by his choice, through Bryowl. The drawings by husband and wife of sums designated as salaries did not indicate to the contrary. Nor did the company structure represent any long term impediment to the respondent diverting elsewhere the fruits of his labour, had he chosen to do so. The only relevant point of distinction between the present case and Husher was that Mrs Minahan's contribution by way of labour was more significant than that of Mrs Husher. This however was reflected in the allowance made on that account in the present case …"
Mason P summarised, at [35], the adjustments made by the trial Judge to the financial statements of Bryowl for the financial year ended 30 June 1993 to reflect the respondent's earning capacity for that period and to provide an appropriate wage for his wife. His Honour said:
"Her Honour found that the wages earned by the respondent from Bryowl did not represent his earning capacity for that period. She notionally added back into Bryowl's accounts the income allocated to Mrs Minahan, subject to an adjustment of $5,000. This was a sum that both expert accountants agreed would be the wage that the company would have had to have paid an outside employee to perform the tasks actually performed by Mrs Minahan during 1992‑1993 … "
Also see Cochrane v Hannaford (1999) 30 MVR 55, per Mason P, Brownie and Foster AJJA, at 75 ‑ 77 [84] ‑ [88].
In Husher, the sole issue before the High Court concerned the appellant's (plaintiff's) claim for future loss of earning capacity. See the joint judgment, at 141 [1], where their Honours said:
"The only question in this Court is how that part of the damages to be awarded to the appellant for loss of future earning capacity should be assessed."
In my opinion, the principles enunciated in Husher are not confined to claims for future loss of earning capacity. They apply to claims for loss of earning capacity generally, including claims for past loss of earning capacity. The principles extend to the determination of past loss of earning capacity for any period in which the partnership or other structure continues to carry on business after the plaintiff suffers his or her injuries.
Where a plaintiff claims damages for loss of earning capacity arising from personal injuries, the Court must determine the extent to which the injuries have interfered with the plaintiff's earning capacity. After making that determination, the Court must assess the economic loss which the plaintiff has suffered and will suffer as a result of the interference with his or her earning capacity. If, at any material time, the plaintiff was in partnership with another, that fact should be taken into account in assessing the plaintiff's economic loss resulting from the interference with his or her earning capacity. The existence of the partnership is not, however, a matter to be taken into account in determining the earlier question, namely, the extent of the interference with the plaintiff's earning capacity. See Zahra v Brown [2006] NSWCA 162 per Beazley JA at [57], with whom Santow JA agreed.
In Conley, Cochrane and Zahra, the Court of Appeal of New South Wales applied the principles in Husher to claims for past loss of earning capacity, including claims for past loss of earning capacity in respect of a period in which the relevant partnership or other structure continued to carry on business after the plaintiff suffered his injuries. In my opinion, there is no reason in logic, principle or policy for a different approach to the assessment of future, as distinct from past, loss of earning capacity, where the plaintiff has chosen or will choose, at relevant times, to exploit his or her earning capacity as a partner or as an employee of a company, and where the relevant facts and circumstances (including the features of the relevant business structure) are not materially different from those in Husher.
In Husher, there were, of course, findings, at 147 [19] ‑ [20], that the services provided by Mrs Husher to the partnership were of negligible value and that her contribution to the income was negligible. By contrast, in Conley, Mrs Minahan's contribution by way of labour was more significant than that of Mrs Husher. The principles in Husher were applied in Conley, but Mrs Minahan's more significant contribution was reflected in the adjustments made by the trial Judge. See [163] above.
In Taroporewalla v Berkery [1983] 3 NSWLR 28, Mahoney JA (with whom Hutley JA substantially agreed and Glass JJA agreed) said there is no single rule that determines the assessment of damages for a plaintiff who was or would have been deriving income from a partnership. His Honour said, at 35:
"There is, in my opinion, no single rule which determines the quantification of damages for a plaintiff in such a case. The damages to be awarded will depend on, inter alia, the nature of the partnership and the plaintiff's relationship to the income which would have been derived from it.
There are, of course, two principles which are fundamental: first, that the plaintiff is to be compensated only for the loss which he has actually suffered, in the past or prospectively; and, second, that that for which the plaintiff is to be compensated, in this regard, is loss of his capacity to derive reward from his efforts. The first principle is not in issue. In relation to the second, it is to be borne in mind that, in assessing the compensation to be awarded for the plaintiff's loss of capacity, the court must take account of what use he, uninjured, would have made of it. If the plaintiff would have put his capacity to a particular or a limited use then, prima facie, his loss is to be calculated by reference to the income or profit that he would have derived from that particular or limited use. Thus, if the court be satisfied that his capacity would not have been used to derive income because, for example, he had determined to remain at leisure, then ordinarily no loss will be seen to have resulted. …"
In Taroporewalla, the plaintiff claimed damages for loss of earning capacity suffered as a result of personal injuries. He had been in partnership with his wife. They were equal partners and each received 50 per cent of the partnership profits. Mahoney JA said, at 34 ‑ 35:
"… The partnership was, I infer, formed to minimize the income tax payable on the business income. The plaintiff's wife did some work in the business but the substantial income was and would have been derived because of the plaintiff's activities. Notwithstanding this, the profits were divided equally between them. The partnership was, as it was assumed in argument, terminable at will. The Master assessed the plaintiff's damages on the basis that, in calculating the loss suffered by him in this regard, there should be attributed to the plaintiff 80 per cent of the business income. The defendant submitted that this was wrong and that the plaintiff's loss should be calculated by reference only to 50 per cent of that income."
The Court of Appeal held that the Master had not erred in taking 80 per cent of the notional earnings of the partnership as an appropriate measure of the loss.

In Zachopoulos v State Government Insurance Commission (1986) Aust Torts Reports 80‑023, Bollen J (with whom Jacobs and Mohr JJ agreed) considered how an injured plaintiff's damages for loss of earning capacity should be assessed where he had exercised that capacity through a partnership. His Honour said, at 67,733 ‑ 67,734:
"… 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."
Also see Future Look Landscaping Pty Ltd v Hanlon, unreported; SCt of NSW, CA 40658-1997; 8 July 1998; (Spigelman CJ, Sheller and Giles JJA); Cochrane at 75 ‑ 76 [85] ‑ [86].
If a partner is injured in consequence of the negligence of another and if substitute or additional labour is reasonably engaged to replace or assist the injured partner, then, if the relevant facts and circumstances (including the features of the relevant partnership) are not materially different from those in Husher, at least the full cost of engaging the substitute or additional labour should be awarded to the injured partner. See Luntz, Assessment of Damages for Personal Injury and Death, 4th ed, 2002, at par 5.5.10. If, however, the relevant facts and circumstances (including the features of the relevant partnership) are materially different from those in Husher, it will be necessary to determine what proportion of the cost of engaging the substitute or additional labour reflects the loss produced by the injured partner's incapacity. Each case turns on its own facts.
In the present case, prior to the accident the whole of the income of the partnership was derived from the efforts of the respondent and the exploitation of his earning capacity. The partnership was at will, and the respondent was therefore entitled to determine it at any time in accordance with s 37(1) of the Partnership Act. Although the respondent's wife did not contribute to the income, her contribution of services was significant. The provision of those services was essential for the proper operation of the partnership. The respondent's wife spent, on average, 15 hours per week in attending to the partnership business.
There was no evidence (and, in consequence, no findings of fact) as to the value of the services which the respondent's wife provided to the partnership, or as to the salary or wage which the partnership would have had to have paid to an outside employee to perform those services. It was not suggested that the respondent had the capacity himself to carry out any of the work which his wife performed. The learned Judge did not refer to Husher in his reasons. It appears that counsel did not cite the decision.
The respondent and his wife were not paid any salaries or wages. Their sole remuneration comprised their equal share of the profits. It is reasonable to characterise the profits derived by the partnership in each of the financial years from and including the year ended 30 June 1995, up to and including the year ended 30 June 2003, as modest.
The respondent carried the onus of proving, relevantly, the extent to which his injuries had interfered with his earning capacity, and also the quantum of the economic loss which he had suffered as a result of that interference. In my opinion, the evidence did not establish that:
(a)the contribution of the respondent's wife, by way of services, during the subsistence of the partnership, had a value materially less than:
(i)her share of the partnership profits prior to the accident; or
(ii)her share of what those profits would have been from the date of the accident up to the dissolution of the partnership (if the accident had not occurred); or
(b)the respondent's earning capacity, during the subsistence of the partnership, was materially greater than that reflected by:
(i)his share of the partnership profits prior to the accident; or
(iii)his share of what those profits would have been from the date of the accident up to the dissolution of the partnership (if the accident had not occurred).
In other words, during the subsistence of the partnership, what the respondent would have had under his control and at his disposal, but for his injuries, was not established, on the evidence, to be an amount materially greater than what his share of the partnership profits was or would have been, but for the accident.
In the present case, the learned Judge did not treat the whole or any part of the profits received by the respondent's wife as the respondent's income. Rather, his Honour based the award for past loss of earning capacity, during the subsistence of the partnership, on the cost of engaging the substitute or additional labour; that is, the cost incurred by the partnership in employing the respondent's son, Stephen Burns. It was appropriate for his Honour to determine the respondent's past loss of earning capacity, during the subsistence of the partnership, by reference to the cost of engaging the substitute or additional labour. But, in my opinion, the facts and circumstances to which I have referred in [152] ‑ [155] and [172] ‑ [175] above required his Honour to conclude that the loss produced by the respondent's incapacity, during the subsistence of the partnership, was one‑half of that cost.
The award for past loss of earning capacity should therefore be reduced from $117,252 to $74,226. This reduction will require amendment to the award of interest on past loss of earning capacity. The award for past loss of earning capacity and interest on that loss should be set aside. Counsel should be heard as to the calculation of a substituted award. Although my reasons in relation to this issue are significantly different from those of McLure JA, her Honour and I agree in the result.
Ground 12 of the appeal alleges that the learned Judge erred in law in:
"Finding that the Plaintiff [respondent] was entitled to damages for loss of future earning capacity equal to the cost of employing a labourer at $400.00 per week for the remaining 13 years of his working life when there was no evidence to support that conclusion;"
The assessment of damages for future loss of earning capacity involves an inquiry as to what the plaintiff could have done in the workforce but for the injuries suffered in the accident and what sum of money would the plaintiff have had at his or her disposal. The assessment involves questions of judgment and estimation. See Husher, per Gleeson CJ, Gummow, Kirby and Hayne JJ, at 149 [23], [25].
In my opinion, ground 12 should fail, generally for the reasons which the Chief Justice gives.
It is true that the learned Judge did not take into account the likelihood that, if the accident had not occurred, the respondent's wife would have continued to make a significant contribution of services in connection with the respondent's exercise of his earning capacity after 1 July 2003. However, his Honour's approach to the assessment of:
(a)loss of earning capacity during the period from 1 July 2003 to 28 January 2005 (that is, from the dissolution of the partnership up to judgment); and
(b)future loss of earning capacity,
was, for the reasons which the Chief Justice gives, somewhat harsh as against the respondent. I am not persuaded that, in all the circumstances, the learned Judge's approach to the assessment of the respondent's loss of earning capacity in respect of those periods produced amounts which are excessive, bearing in mind the process of assessment is necessarily inexact.
I would allow the appeal, to the extent I have mentioned, but otherwise dismiss it.

Cross-appeal

I agree with the Chief Justice, for the reasons he gives, that the cross‑appeal should be dismissed.