Vakauta v Kelly [1989] HCA 44

Vakauta v Kelly [1989] HCA 44

Although the trial judge's comments during the hearing about the G.I.O. and its medical witnesses would have supported a reasonable apprehension of bias, any objection to those comments was waived because no objection was taken at the time. However, the reserved judgment revived and confirmed the appearance of bias by referring to Dr. Lawson's evidence as negative 'as it always seems to be' and based 'as usual' on non-acceptance of plaintiffs' complaints of pain. In context, those remarks would cause a reasonable and fair-minded lay observer to apprehend that the judge's assessment of the evidence and damages was affected by preconceived adverse views. Because there was no opportunity to...

Jurisdiction
Australia
Procedural Posture
Appeal in Personal Injury Damages Proceedings Concerning Alleged Actual and Ostensible Judicial Bias / High Court Appeal From the Court of Appeal of New South Wales
Outcome
Appeal allowed; judgment set aside; new trial ordered on damages.
Legal Topics
['reasonable Apprehension of Bias' 'actual Bias' 'waiver of Objection to Bias' 'assessment of Damages' 'expert Medical Evidence']
['civil Procedure' 'judicial Bias' 'personal Injury Damages'] ['reasonable Apprehension of Bias' 'actual Bias' 'waiver of Objection to Bias' 'assessment of Damages' 'expert Medical Evidence']

Case Brief

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Procedural Posture

Appeal in Personal Injury Damages Proceedings Concerning Alleged Actual and Ostensible Judicial Bias / High Court Appeal From the Court of Appeal of New South Wales

Legal Issues

  1. 1 ['Whether remarks made by the trial judge during the hearing about the Government Insurance Office of New South Wales and its medical witnesses constituted actual bias or gave rise to a reasonable apprehension of bias.' "Whether any objection based on ostensible bias during the hearing was waived by the appellant's failure to object at the time." 'Whether remarks in the reserved judgment concerning Dr. Lawson, considered in context, gave rise to an appearance of impermissible bias requiring the judgment to be set aside.' 'Whether a new trial should be ordered on the question of damages.']

Ratio Decidendi

Although the trial judge's comments during the hearing about the G.I.O. and its medical witnesses would have supported a reasonable apprehension of bias, any objection to those comments was waived because no objection was taken at the time. However, the reserved judgment revived and confirmed the appearance of bias by referring to Dr. Lawson's evidence as negative 'as it always seems to be' and based 'as usual' on non-acceptance of plaintiffs' complaints of pain. In context, those remarks would cause a reasonable and fair-minded lay observer to apprehend that the judge's assessment of the evidence and damages was affected by preconceived adverse views. Because there was no opportunity to...

Court Disposition

Appeal allowed; judgment set aside; new trial ordered on damages.

Orders

  • ['Appeal allowed.' 'Set aside the orders of the Court of Appeal of New South Wales except in relation to costs and in lieu thereof order that the appeal to that Court be allowed.' 'Set aside the orders of Hunt J. except in relation to costs and order a new trial on the question of damages.' 'The appellant to pay the...