HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY AND CALLINAN JJBARBARA FOX APPELLANT
AND
MEGAN L PERCY RESPONDENT
Fox v Percy
[2003] HCA 22
30 April 2003
S88/2002ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation:
P Menzies QC with C R Burge for the appellant (instructed by Beston Macken McManis)
J D Hislop QC with P J Nolan for the respondent (instructed by Sparke Helmore)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Fox v Percy
Appeal – Rehearing – Review of findings of fact based on trial judge's assessment of credibility of witnesses – Whether findings inconsistent with incontrovertibly established facts – Power of appellate court to set aside findings.
Appeal – Issue not raised at trial – Where argued that expert report based on matters not proved or supported by the evidence – Whether re-examination of facts by appellate court appropriate.
Appeal – Rehearing – Substitution of judgment of appellate court for that of trial judge – Whether re-trial an appropriate remedy.
Supreme Court Act 1970 (NSW), s 75A.
GLEESON CJ, GUMMOW AND KIRBY JJ. This is an appeal from a judgment of the Court of Appeal of the Supreme Court of New South Wales[1]. The issue in the appeal is whether that Court erred in reversing a judgment of the District Court of New South Wales. By that judgment, the primary judge (Herron DCJ) resolved a factual conflict at trial in favour of the appellant. A subsidiary question arises in the appeal as to whether, if the Court of Appeal was justified in upholding the appeal, the correct order for it to make was for a new trial, rather than the entry of judgment in favour of the respondent.
[1]Percy v Fox [2001] NSWCA 100.
The background facts
Ms Barbara Fox (the appellant) was injured on 11 April 1992 when a horse she was riding came into collision with a Volkswagen Kombi Van driven by Ms Megan Percy (the respondent). The appellant claimed damages for negligence in respect of the respondent's driving of the motor vehicle. The crucial factual contest at the trial was whether the respondent's motor vehicle was on the correct, or incorrect, side of the road at the time of impact. Both the appellant and the respondent gave evidence that, at that time, they were on the correct side of the road. They could not both be right. The appellant's entitlement to damages depended upon the primary judge's accepting her version of the events leading to the collision.
The appellant was seriously injured as a result of the collision. The trial in the District Court did not take place until November 1999. It was heard over four days in Moruya, New South Wales. A number of facts, as accepted by the primary judge, were not disputed. The collision occurred on a narrow, unsealed, country road that was about seven metres wide. The respondent was driving her vehicle in a westerly direction, travelling downhill. At the point immediately prior to the collision there was an almost, but not completely, blind left-hand turn. The appellant was proceeding on a large half draught horse in an easterly direction. Immediately behind her, also on a large horse, was a companion, Mr Christopher Murdoch. The head of his horse was close to the near-side rump of the horse that the appellant was riding. Immediately before the collision, the horses were proceeding at about seven kilometres per hour. There was some dispute about the speed of the respondent's vehicle. However, the exact speed is immaterial. The primary judge accepted that it was not excessive to the circumstances[2].
[2]Barbara Fox v Megan Percy, unreported, District Court of New South Wales (Herron DCJ), 5 November 1999 ("Reasons of the primary judge") at 9.
The impact between the van and the appellant's horse happened when they came upon each other as the van turned the corner in the road. The collision was unexpected to the parties. The point of impact between the van and the appellant's horse was roughly head-on. Because that horse, and Mr Murdoch's horse immediately behind it, were both large and heavy, their combined weight approximated that of the respondent's vehicle. The application of the brakes by the respondent together with the impact brought the Kombi Van to a sudden halt. Both horses were forced backwards. The appellant's horse became entangled in the Kombi Van. Subsequently, that horse released itself; but it had suffered fatal wounds and after taking a couple of steps it fell over dead. The appellant was thrown onto the roadway landing at a point immediately in front of the respondent's stationary vehicle.
Soon after the collision, an ambulance and the police were summoned to the scene. The ambulance attendants arrived and, as the primary judge recorded, they stated that, when they arrived, the stationary Kombi Van was on its correct side of the road[3]. The police officer who arrived (Constable Peter Volf) interviewed the appellant, Mr Murdoch and the respondent. He noticed, and recorded in a sketch in his notebook, that the respondent's vehicle was on its correct side of the road and that there were 10 metres of skid marks immediately behind it. Those skid marks suggested to Constable Volf "that the vehicle had at all material times … been on its correct side of the road"[4]. This discovery caused the constable to say to the appellant: "It looks like you were in the wrong"[5].
[3]Reasons of the primary judge at 9-10.
[4]Reasons of the primary judge at 3.
[5]Reasons of the primary judge at 14.
Both the constable and the respondent detected the presence of alcohol in the appellant[6]. This too was noted in the police record. The appellant declined to sign her statement in the police notebook, causing the constable to record that she had "refused to co-operate with Police in enquiries". In evidence, the appellant explained that she was interviewed whilst being helped into the ambulance and felt that the police officer was antagonistic towards her. Later, at the Bega Hospital to which the appellant was conveyed, a blood sample was taken from her. It revealed that, at the time the blood was exacted, the appellant had 0.122 grams of alcohol per 100 millilitres of blood. The primary judge concluded that there was "no doubt that this amount of alcohol in her blood would have affected her"[7]. However, he also concluded that, if indeed she had been on her correct side of the road, her consumption of alcohol was irrelevant to the cause of the collision[8].
[6]Reasons of the primary judge at 14.
[7]Reasons of the primary judge at 17.
[8]Reasons of the primary judge at 19-20.
The appellant was a person who had a great deal of experience with horses, virtually from her childhood[9]. She was comfortable with the horse she was riding. She had acquired it a year earlier and had frequently ridden it. She was also very familiar with the road on which the collision had occurred. In her evidence, she adhered to her statement that she had been on the correct side of the road at the moment of impact. In her testimony, the respondent also adhered to her version of events. The primary judge was obliged to resolve this conflict of evidence.
[9]Reasons of the primary judge at 19.
The reasons of the primary judge
The primary judge accepted the police record, and in particular the discovery of the skid marks shown immediately behind the Kombi Van, wholly within the respondent's correct side of the road. However, his Honour concluded that there had been some animosity on the part of Constable Volf towards the appellant which, he felt, had "colour[ed] his investigation of the situation"[10]. In support of this conclusion, he instanced the fact that the officer had noted the clothing of the appellant, that she was "abusive towards police" and that she had tattoos on the right cheek and smelt of alcohol[11]. However, the printed form concerning "information to be obtained by police", accompanying the police notebook, records that a note should be taken of clothing and of "any distinguishing features" of persons interviewed.
[10]Reasons of the primary judge at 16.
[11]Reasons of the primary judge at 15.
At the trial, the appellant called Ms Christine Dzikowski as a witness. She had come upon the scene of the collision not long after the impact. She was adamant that, when she arrived, the Kombi Van was on its incorrect side of the road. However, the primary judge, whilst accepting that Ms Dzikowski gave honest evidence, also accepted that at its final point of rest, the vehicle was on its correct side of the notional centreline of the road. He ascribed Ms Dzikowski's mistake to the very long delay between the events and the trial[12].
[12]Reasons of the primary judge at 13.
The judge recognised that the accepted position of the vehicle and the skid marks behind it constituted strong evidence against the appellant's version of events. Nevertheless, he concluded that the probabilities were that the collision had occurred when the respondent was driving on her incorrect side of the road. He said[13]:
"I come to the conclusion … that despite the skid marks that the accident occurred on the plaintiff's correct side of the road; and of course in that I do not accept the defendant herself that the accident had happened on her correct side of the road."
[13]Reasons of the primary judge at 16.
In support of this conclusion the primary judge's reasons nominate three considerations. The first was his acceptance of the appellant's testimony (and thus the rejection of the respondent's). The second was his acceptance of the confirmatory testimony of Mr Murdoch. Thirdly, the judge said that he accepted the evidence contained in expert reports of Mr John Tindall, a traffic engineer.
Mr Tindall had been engaged by the appellant. He made two written reports. These were admitted into evidence and Mr Tindall gave no oral evidence. No reference was made to the skid marks in his first report. The record of the skid marks was only subsequently brought to his attention.
So far as Mr Murdoch was concerned, the judge accepted his evidence that, following the impact, his horse had been forced down an embankment which fell away from the road on the side on which the appellant and Mr Murdoch claimed they were proceeding. In his Honour's view this showed "that the probabilities are that his horse was juxtaposed to the horse ridden by the plaintiff in the way in which both he and the plaintiff say it was"[14].
[14]Reasons of the primary judge at 20.
So far as the expert reports were concerned, the primary judge preferred Mr Tindall's opinion to that of the expert called for the respondent. He accepted as correct Mr Tindall's assumptions about the movement of the vehicle and horses after impact. This led him to say[15]:
"I think that the probabilities are that the vehicle ended up on its correct side of the road for the reasons which Mr Tindall advances".
[15]Reasons of the primary judge at 12.
It was on this footing that the primary judge entered judgment in favour of the appellant, awarding her substantial damages. The respondent appealed.
The decision of the Court of Appeal
In the Court of Appeal, the judges divided. Fitzgerald JA rejected the appeal. He was critical of the growing practice of using experts in what he saw as basically a simple trial function. He acknowledged that rational minds could reasonably differ in analysis of the evidence[16]. However, having regard to the constraints upon interference in the trial judge's factual conclusions, including the "assessment of the credibility and reliability of the witnesses", he rejected the argument that the trial had not been properly and competently concluded[17].
[16]Percy v Fox [2001] NSWCA 100 at [82].
[17][2001] NSWCA 100 at [83]-[84].
The reasons of the majority in the Court of Appeal were given by Beazley JA (with whom Handley JA concurred). Her Honour analysed the foregoing evidence and the conclusions of the primary judge. She acknowledged the advantages which the primary judge had in observing witnesses and making findings of credit in favour of the appellant and Mr Murdoch and against the respondent. She referred to the series of decisions of this Court that restrict appellate interference in conclusions that are based on such findings[18].
[18][2001] NSWCA 100 at [64] referring to Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306; 160 ALR 588 ("SRA").
Nevertheless, Beazley JA decided that the evidence of the police officer concerning the skid marks on the respondent's correct side of the road fell into the category of inconsistent facts "incontrovertibly established by the evidence"[19]. As the primary judge had accepted the testimony about the skid marks, and as they were in any case illustrated in the police notebook, her Honour concluded that the oral evidence of the appellant and Mr Murdoch did not suffice to sustain the final opinion that the primary judge had reached. She therefore regarded the primary judge's "core finding" as being based upon his acceptance of Mr Tindall's first report[20]. She pointed out that the appellant's counsel had disclaimed reliance on the opinion stated by Mr Tindall that the collision with the horse had occurred "anywhere along the 10 metres that the van skidded"[21]. She also drew attention to other defects in Mr Tindall's reports, the lack of proved evidence to sustain some of his assumptions and the fact that he had not been called to give oral evidence. On the basis of this last consideration, Beazley JA was of the opinion that Mr Tindall's evidence was unprotected by any principle restricting appellate review[22]. The Court of Appeal was in as good a position as the primary judge to evaluate the worth of Mr Tindall's written evidence.
[19][2001] NSWCA 100 at [71]. See Devries (1993) 177 CLR 472 at 479 per Brennan, Gaudron and McHugh JJ; Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844; 62 ALR 53 at 57. In Canada, the Supreme Court has re-examined the principles of appellate review of factual conclusions made by a trial judge, emphasising a single standard of "palpable and overriding error" for both findings and inferences of fact: Housen v Nikolaisen (2002) 211 DLR (4th) 577 at 591 [25].
[20][2001] NSWCA 100 at [65].
[21][2001] NSWCA 100 at [66].
[22][2001] NSWCA 100 at [69].
It is clear that, for the majority in the Court of Appeal, the crucial fact was the 10 metre skid marks that were unexplained, or insufficiently explained, to warrant a conclusion adverse to the respondent's version of events. On this basis the judgment in favour of the appellant was set aside and judgment entered for the respondent. Now, by special leave, the appellant appeals to this Court.
The powers and functions of the Court of Appeal
Appeal is not, as such, a common law procedure. It is a creature of statute[23]. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd[24], Mason J distinguished between (i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo. There are different meanings to be attached to the word "rehearing"[25]. The distinction between an appeal by way of rehearing and a hearing de novo was further considered in Allesch v Maunz[26]. Which of the meanings is that borne by the term "appeal", or whether there is some other meaning, is, in the absence of an express statement in the particular provision, a matter of statutory construction in each case.
[23]Attorney-General v Sillem (1864) 10 HLC 704 at 720-721 [11 ER 1200 at 1207-1208]; South Australian Land Mortgage and Agency Co Ltd v The King (1922) 30 CLR 523 at 552-553; CDJ v VAJ (1998) 197 CLR 172 at 196-197 [91]-[95], 230 [184]; SRA (1999) 73 ALJR 306 at 322 [72]; 160 ALR 588 at 609; DJL v Central Authority (2000) 201 CLR 226 at 245-246 [40]; Allesch v Maunz (2000) 203 CLR 172 at 179-180 [20]-[22], 187 [44].
[24](1976) 135 CLR 616 at 619-622. See also Eastman v The Queen (2000) 203 CLR 1 at 40-41 [130].
[25]Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620-621.
[26](2000) 203 CLR 172 at 180-181 [23], 187 [44].
In New South Wales a right of appeal from a judgment of the District Court lies to the Supreme Court pursuant to the District Court Act 1973 (NSW), s 127(1). In the present case such appeal lay as of right[27]. Within the Supreme Court such an appeal is assigned to the Court of Appeal[28]. The character and features of the appeal are governed by the Supreme Court Act 1970 (NSW). Section 75A of that Act provides, relevantly:
[27]District Court Act 1973 (NSW), s 127(3). See also s 127(2)(c)(i).
[28]Supreme Court Act 1970 (NSW), ss 48(1)(a)(iv) and 48(2)(f).
"(5)Where the decision or other matter under appeal has been given after a hearing, the appeal shall be by way of rehearing.
(6)The Court shall have the powers and duties of the court … from whom the appeal is brought, including powers and duties concerning:
(a) …
(b)the drawing of inferences and the making of findings of fact, and
(c)the assessment of damages and other money sums.
(7) The Court may receive further evidence.
(8)Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds.
(9) …
(10)The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires."
The nature of the "rehearing" provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The "rehearing" does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance"[29]. On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record[30]. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share[31]. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole[32].
[29]Dearman v Dearman (1908) 7 CLR 549 at 561. The Court there was concerned with s 82 of the Matrimonial Causes Act 1899 (NSW) which provided that "on appeal every decree or order may be reversed or varied as the Full Court thinks proper": see (1908) 7 CLR 549 at 558.
[30]Dearman v Dearman (1908) 7 CLR 549 at 561. See also Scott v Pauly (1917) 24 CLR 274 at 278-281.
[31]Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637; [1985] 1 All ER 635 at 637 per Lord Scarman with reference to Joyce v Yeomans [1981] 1 WLR 549 at 556; [1981] 2 All ER 21 at 26. See also Chambers v Jobling (1986) 7 NSWLR 1 at 25.
[32]SRA (1999) 73 ALJR 306 at 330 [89]-[91]; 160 ALR 588 at 619-620 citing Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207 at 209-210; Jones v The Queen (1997) 191 CLR 439 at 466-467.
Nevertheless, mistakes, including serious mistakes, can occur at trial in the comprehension, recollection and evaluation of evidence. In part, it was to prevent and cure the miscarriages of justice that can arise from such mistakes that, in the nineteenth century, the general facility of appeal was introduced in England, and later in its colonies[33]. Some time after this development came the gradual reduction in the number, and even the elimination, of civil trials by jury and the increase in trials by judge alone at the end of which the judge, who is subject to appeal, is obliged to give reasons for the decision[34]. Such reasons are, at once, necessitated by the right of appeal and enhance its utility. Care must be exercised in applying to appellate review of the reasoned decisions of judges, sitting without juries, all of the judicial remarks made concerning the proper approach of appellate courts to appeals against judgments giving effect to jury verdicts[35]. A jury gives no reasons and this necessitates assumptions that are not appropriate to, and need modification for, appellate review of a judge's detailed reasons.
[33]Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 619-620; SRA (1999) 73 ALJR 306 at 322-325 [72]-[80]; 160 ALR 588 at 609-613.
[34]Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 666-667 citing Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 257-258, 268-273, 277-281.
[35]eg Hocking v Bell (1945) 71 CLR 430; (1947) 75 CLR 125 at 131-132; cf Naxakis v Western General Hospital (1999) 197 CLR 269 at 271-272 [2], 274-275 [16], 282-283 [41]-[42], 288-290 [57]-[58], 310-311 [119]-[123].
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect"[36]. In Warren v Coombes[37], the majority of this Court reiterated the rule that:
"[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it."
As this Court there said, that approach was "not only sound in law, but beneficial in … operation"[38].
[36]Dearman v Dearman (1908) 7 CLR 549 at 564 citing The Glannibanta (1876) 1 PD 283 at 287.
[37](1979) 142 CLR 531 at 551.
[38](1979) 142 CLR 531 at 551. See also Taylor v Johnson (1983) 151 CLR 422 at 426; Jovanovic v Rossi (1985) 58 ALR 519 at 522; cf Moran v McMahon (1985) 3 NSWLR 700 at 715-716 per Priestley JA.
After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde[39], Abalos v Australian Postal Commission[40] and Devries v Australian National Railways Commission[41]. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.
[39](1989) 63 ALJR 349 at 351-352; 85 ALR 23 at 27-28.
[40](1990) 171 CLR 167 at 179.
[41](1993) 177 CLR 472 at 479, 482-483.
The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons[42]. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings[43].
[42]See discussion in SRA (1999) 73 ALJR 306 at 321 [61]-[64], 325-331 [81]-[93], 337-338 [132]-[137]; 160 ALR 588 at 606-607, 613-622, 629-630.
[43]eg Voulis v Kozary (1975) 180 CLR 177; SRA (1999) 73 ALJR 306; 160 ALR 588; cf Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 349-351.
That this is so is demonstrated in several recent decisions of this Court[44]. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable"[45] or "contrary to compelling inferences" in the case[46]. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.
[44]eg Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599 at 603 [15]-[16]. See also SRA (1999) 73 ALJR 306; 160 ALR 588.
[45]Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844; 62 ALR 53 at 57.
[46]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses[47]. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana")[48]:
"… I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour."
[47]eg Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 per Samuels JA.
[48](1924) 20 Ll L Rep 140 at 152. See also Coghlan v Cumberland [1898] 1 Ch 704 at 705.
Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances[49]. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.
[49]See material cited by Samuels JA in Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 and noted in SRA (1999) 73 ALJR 306 at 329 [88]; 160 ALR 588 at 617-618.
The Court of Appeal made no error
With these established principles in mind, we now turn to the issue presented by this appeal. Under the Constitution, the appeal to this Court is in the nature of a strict appeal[50]. Our sole duty in this case is to determine whether error has been shown on the part of the Court of Appeal. This Court is not engaged in a rehearing. As such, it is not this Court's task to decide where the truth lay as between the competing versions of the collision given by the parties. Nevertheless, in considering the supposed error of the Court of Appeal, it is necessary to understand how, respectively, the primary judge came to his conclusion and the Court of Appeal felt authorised to reverse it.
[50]Eastman v The Queen (2000) 203 CLR 1 at 12-13 [16]-[17], 24 [68], 35 [111]-[112], 96-97 [290]; cf 81-82 [248]-[249], 123 [370]-[371].
The Court of Appeal was obviously aware of the principles, established by this Court, controlling the performance of its appellate function. Both Beazley JA (for the majority) and Fitzgerald JA (in dissent) referred to the applicable principles and the governing authorities. In particular, Beazley JA referred to the most recent, and detailed, analysis of the considerations to be weighed as expressed in this Court's decision in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq)[51]. There, this Court reversed a decision of the New South Wales Court of Appeal which had felt itself precluded from disturbing the decision of the primary judge that, it considered, rested on that judge's evaluation of the credibility of witnesses. This Court unanimously concluded that the Court of Appeal was not so precluded but was obliged, by the proof of objective documentary evidence, to give attention to all of the evidence of the case.
[51](1999) 73 ALJR 306; 160 ALR 588.
In the present case, the majority in the Court of Appeal did not repeat the error identified in SRA. Here, the incontrovertible evidence was not, as such, found in a series of documentary records. However, it was illustrated in an uncontested, contemporary document that verified the police evidence which the primary judge accepted as truthful. This was the evidence, shown in the notebook of Constable Volf, recording that, at the collision scene, he had observed 10 metre skid marks on the road immediately behind the point at which the respondent's vehicle had come to a halt and wholly within the respondent's correct side of the road.
If this objective evidence correctly recorded the trajectory of the respondent's vehicle to the point at which it stopped, it afforded evidence that confirmed the respondent's version of the events immediately prior to the collision and contradicted the evidence of the appellant and Mr Murdoch.
There were other uncontested facts that tended to support the respondent's version of events. Thus the ambulance attendants confirmed the location of the vehicle in keeping with the respondent's version and contrary to the evidence of Ms Dzikowski. Constable Volf's statement to the appellant was also consistent with his immediate assessment, which the skid marks appeared to demand. Had Constable Volf reached the opposite conclusion, he would probably have been bound to charge the respondent with a driving offence. As the trial judge pointed out, the level of alcohol in the appellant's blood was not causative of the collision at the moment of impact. However, it was an objective fact. It could have explained how the appellant allowed her horse to proceed, uncontrolled, onto the incorrect side of the roadway. The respondent said that she was driving in second gear because of the steep fall of the road. Having regard to the fact that the bend in the road was to the left, any natural inclination on the part of a descending driver would probably have been to the left, not to the right-hand side where the road fell away. On the other hand, horses ascending the steep incline might, if uncontrolled, have had a tendency to cut the bend, veering to the right-hand side of the road where the respondent said the horses were.
In the end, it was not logic and the assessments of probable behaviour in the circumstances that persuaded the majority of the Court of Appeal[52]. Such considerations might not alone have warranted disturbance of the primary judge's conclusion. It was the objective fact of the skid marks which, to the close of the trial, remained unexplained, or insufficiently explained, by the appellant.
[52]Percy v Fox [2001] NSWCA 100 at [71].
The only explanations offered by the appellant in that regard were, as Beazley JA pointed out, unconvincing. The direction of the skid marks, shown in the police sketch as virtually straight behind the respondent's vehicle, contradicted the only hypothesis offered to this Court to support the final resting place of the vehicle and the appellant. This was that, immediately following the collision, the respondent had corrected the position of her vehicle and returned it to the correct side of the road. If this were the explanation, the skid marks would have shown the angle suggested by such a corrective manoeuvre. They did not. It could not be accepted that the respondent delayed in applying the brakes causing the skid marks until after she was safely on her correct side. In the agony of the moment, there was no time to think of such things. The skid marks showed objectively the direction of the respondent's vehicle from the application of the brakes to the place of rest at the point of the collision with the appellant's horse. Alike with Beazley JA, we regard the skid marks as an incontestable fact that rebuts the claim of negligence propounded by the appellant. Clearly, it was open to the Court of Appeal, conducting the rehearing, to reach that conclusion. Once it did so, that Court was bound to give effect to its opinion.
The reasons of Beazley JA, disposing of the contrary arguments are also convincing. The evidence of Mr Murdoch, a friend of the appellant, is inconsistent with the skid marks. Against his oral testimony, the objective facts speak volumes, even disregarding the matters brought out in cross-examination of him. The suggestion that Mr Murdoch's horse took him over the embankment and then returned to the road is not, as the primary judge thought, decisive. It is also dependent on the accuracy of Mr Murdoch's recall. In any case, the road was comparatively narrow, the horse would have been extremely frightened and, following the collision, its independent movement could, indeed, have taken it over the side of the embankment.
So far as the evidence of the expert, Mr Tindall, was concerned, it was no more than a written report containing an opinion formed upon a brief which apparently had given to Mr Tindall an incomplete account of the primary evidence. Once the significance of the skid marks was appreciated, it was open to the Court of Appeal to prefer the inferences that it drew from that objective fact to the opinions stated in a report that was, in any case, somewhat partisan in its expression.
Therefore, the appellant had to rely before this Court on the advantages that the primary judge enjoyed in seeing the parties, and Mr Murdoch, give their evidence and in preferring the evidence of the appellant and Mr Murdoch to that of the respondent. The Court of Appeal was bound to make due allowance (as it did) for such advantages. The trial judge sat through four days of trial before giving his decision. He did so at a time when the impression made by the witnesses was still clearly in his mind[53]. The Court of Appeal was bound to afford respect to the endeavour of the judge to give the correct and lawful conclusion to the puzzle presented to him. Clearly, the Court of Appeal was right to reject the respondent's belated suggestion of bias, which should not, in our view, have been made. No doubt, the Court of Appeal also took into account the unexpressed considerations that went into the judge's conclusion. No judicial reasons can ever state all of the pertinent factors[54]; nor can they express every feature of the evidence that causes a decision-maker to prefer one factual conclusion over another.
[53]Reasons of the primary judge at 1.
[54]Biogen Inc v Medeva Plc [1997] RPC 1 at 45 per Lord Hoffmann.
Nevertheless, in our view, within the stated principles, the majority in the Court of Appeal did not err in giving effect to the conclusion that they reached. The skid marks on the respondent's correct side of the road were incontrovertibly established. Their position, length, direction and terminus are inconsistent with the appellant's version of events. Having come to that decision, the majority in the Court of Appeal were correct to give effect to their conclusion and to set aside the judgment in the appellant's favour. In our view, the appeal should be dismissed.
The alternative possibility of a new trial
This conclusion relieves us of considering the alternative case that the respondent propounded. This was that, at the least, this Court would conclude that the primary judge's reasons were so unsatisfactory as to require a retrial. Whilst adhering to her contention that the judgment in her favour should be restored, the appellant embraced the proposal of a retrial as preferable to the judgment for the respondent entered by the Court of Appeal.
To conclude that the Court of Appeal was not warranted in substituting a judgment for the respondent is, in our view, inconsistent with the right and duty of that Court to discharge the appellate function in accordance with the legislation governing it. A principal purpose of providing for an appeal by way of "rehearing" is to ensure, within the appellate process, finality of litigation, correctly decided[55]. It is unlikely that, in a second trial, the present parties would alter significantly the testimony that they have severally given or that the other witnesses would change theirs. As the primary judge correctly observed during the cross-examination of Constable Volf (by the time of the trial a sergeant of police), the possibility of his having any independent recollection of events that took place seven years earlier, was negligible. His evidence was, and would remain, that recorded in the notebook entry made immediately after the collision and in particular his sketch of the accident scene. In a new trial, that record, and the features of the skid mark, would be unchanged.
[55]The power of the Court of Appeal to enter judgment for a party on an appeal by way of rehearing derives from s 75A(1) of the Supreme Court Act 1970 (NSW). Particular provisions appear with respect to a new trial because of subsequent matters (s 106) and the entry of substituted verdicts in certain circumstances (s 107). These provisions were not applicable to the present appeal.
All that stands in favour of a retrial is that it would permit another judge to re-evaluate the truthfulness of the witnesses. But that judge too would have to do so in the context of the objective evidence of the skid marks. All that would be gained would be the prospect of a reserved decision, with the benefit of transcript that was not available to the primary judge at the first hearing, and reasons that would address more convincingly the reconciliation of the oral testimony with the objective, contemporaneous record.
The Court of Appeal felt able to conclude the matter for itself. In doing so, in an unremarkable case, it did what is very commonly done, and properly done, in discharging the duty of deciding an appeal by way of rehearing. In our view, it was correct to do so within the powers that it enjoyed. We see no reason for this Court to substitute an order for a new trial. We would regard such an order as futile in the state of the evidence. The retrial of this matter, more than 10 years after the collision, could involve no improvement in the memory of any witness. In the end, the same factual analysis would be required. The self-interested recollections of the appellant, and those of her friend Mr Murdoch, could not overcome the objective evidence that so strongly favoured the respondent's version of events. At the least, it was open to the Court of Appeal to reach that conclusion. There being no error, this Court should not interfere.
Order
The appeal should be dismissed with costs.
McHUGH J. The question in this appeal is whether certain evidence, particularly the existence of skid marks on the respondent's side of the road, made "glaringly improbable"[56], or incontrovertibly denied, the appellant's case that she was on her correct side of the road when struck by a van driven by the respondent. Unless it did, the Court of Appeal of the Supreme Court of New South Wales erred in setting aside the appellant's verdict, which was based on the trial judge's acceptance of the evidence of the appellant, one of her witnesses and written reports prepared by her traffic expert.
[56]Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844; 62 ALR 53 at 57.
In my opinion, this was one of those rare cases where the trial judge's finding that the skid marks were on the respondent's correct side of the road could not rationally be reconciled with the testimony of the appellant and her witness. Because that was so, and because the expert's reports were based on an incomplete account of the material facts, the Court of Appeal did not err in setting aside the appellant's verdict and entering a verdict for the respondent.
Statement of the case
The appellant, Barbara Fox, sued the respondent, Megan Percy, in the District Court of New South Wales for damages for negligence as the result of a collision between a van driven by Ms Percy and a horse ridden by Ms Fox. Herron DCJ, sitting without a jury, tried the action in the District Court at Moruya. After a four day hearing, his Honour found that the collision had occurred because of Ms Percy's negligence in being on her incorrect side of the road[57]. He awarded Ms Fox substantial damages.
[57]Unreported, 5 November 1999.
The Court of Appeal (Handley and Beazley JJA, Fitzgerald JA dissenting) upheld an appeal by Ms Percy against the finding of negligence[58]. The majority found that, although Herron DCJ had accepted the evidence of Ms Fox and her witness, their evidence was inconsistent with the presence of skid marks – a fact incontrovertibly established by the evidence and the finding of the trial judge. They also found that reports prepared by an expert, that supported Ms Fox's evidence, were based on assumptions not proved in evidence. Their Honours entered a verdict in favour of Ms Percy. Subsequently, this Court granted special leave to appeal against that order of the Court of Appeal.
[58][2001] NSWCA 100.
The evidence and the trial judge's findings
Ms Fox was seriously injured on 11 April 1992, when the horse that she was riding collided with a Kombi van being driven in the opposite direction by Ms Percy. The collision occurred shortly after dusk on a blind bend on an unsurfaced country road that was about seven metres wide.
Immediately before the collision, Ms Fox and her partner, Mr Christopher Murdoch, were riding in an easterly direction up an incline in the road towards the blind bend. Ms Fox was riding a large half-draught horse. Mr Murdoch was riding behind her on a smaller, but still large, horse. They were travelling at about seven kilometres per hour. Both Ms Fox and Mr Murdoch had drunk alcohol earlier in the day. At the hospital, several hours later, Ms Fox had a blood alcohol content of 0.122 grams of alcohol per 100 millilitres of blood[59]. The trial judge found that, because of the nature of the accident, her level of intoxication was of little consequence[60].
[59]The police officer's notebook contained the note:
"Black dress, red stockings, abusive towards Police. Tattoo's right cheek, breath smelt of stale rum, intoxicating liquor, appeared moderately affected by alcohol refused to co-operate with Police in enquiries".
[60]The trial judge made the following comments about Ms Fox's level of intoxication:
"The fact is however that accepting the plaintiff as I do, there would not have been any hope of avoiding the accident, that is by moving the horse, in the few seconds which must have been involved in the collision itself. It would not matter if a president of the Temperance League was riding the horse Bright in this situation".
Ms Fox testified that she was riding on her correct side of the road, on the left-hand side of the "middle rut" of the road. She said that her horse was "trotting"[61]. Ms Fox gave evidence that Mr Murdoch was "just at her rear" on her left side, and that it was still light when the accident occurred. She claimed that, when Sergeant Volf (who was a Constable at the time of the accident) arrived, he accused her of being on the wrong side of the road[62]. She said that her horse "wasn't sideswiped and [her] thrown" but that she had fallen directly in front of the vehicle. She said that, when the van came around the corner, she had no time to respond. She also said that there was no braking, no dust and no skid marks.
[61]She had previously told police that her horse was at a canter, but the trial judge found that this would not make much difference to the horse's speed, travelling, as it was, up an incline.
[62]The trial judge found that there was some "animosity emanating" from the police officer toward Ms Fox and Mr Murdoch because they adopted "an alternative lifestyle".
Mr Murdoch testified that he was riding directly behind Ms Fox on her left hand side, nearly a metre from the edge of the road. He said that Ms Fox's horse was two metres from the edge. In describing the collision, Mr Murdoch said that the Kombi van suddenly appeared, ran into Ms Fox's horse and pushed Ms Fox and her horse back onto his horse. He said that he was thrown over the edge of the embankment and that his horse flipped over him and landed on its feet. The horse jumped back up onto the road and pulled Mr Murdoch with it. Mr Murdoch gave evidence that, at this point, he saw Ms Fox's horse attached to the upper part of the roof of the Kombi and Ms Fox fall in front of the stationary Kombi[63]. The horse then stepped away from the van and died on the road. Mr Murdoch said that there were no skid marks. Mr Murdoch claimed that he observed "sideway drift marks" on the road, but these were beside, not behind, the van. He also claimed that he stepped out measurements as to the final location of the van, but his statement, as recorded in the police officer's notebook, made no mention of these measurements or the drift marks. In evidence, Mr Murdoch said that the statement in the police officer's notebook was inadequate. He claimed that he had pointed this out to the officer at the time[64].
[63]Ms Percy denied that the horse was ever attached to the Kombi van.
[64]Sergeant Volf did not recall Mr Murdoch complaining about his statement in the police notebook.
In evidence, Sergeant Volf said that he observed and "stepped out" 10 metres of skid marks behind the Kombi. He sketched the location of the Kombi, the skid marks and the dead horse in his notebook. This drawing has the Kombi "straight on" on the correct side of the road with the skid marks directly behind it. Herron DCJ accepted his evidence that the skid marks were on the correct side of the road. His Honour rejected the evidence of another witness (Ms Christine Dzikowski) that the Kombi van came to rest on the wrong side of the road. Ambulance officers attending the scene also testified that the van was on its correct side of the road when they arrived. Sergeant Volf thought the skid marks suggested "that the vehicle had at all material times ... been on its correct side of the road". He said to Ms Fox, "It looks like you were in the wrong".
Ms Percy claimed that she was driving on the correct side of the road and that, as the light was dim, she had her headlights on. She said that when she saw the horse she applied the brake and the clutch. The vehicle slid a little, collided with the horse and then came to a stop.
Both parties retained experts who provided reports on the accident. Although the reports were tendered as evidence, neither expert testified at the trial. Mr Tindall was Ms Fox's expert. In his first report, prepared before he became aware of the 10 metre skid marks, he gave the following explanation of the collision:
"[Ms Percy's] vehicle could have slid outwards slightly towards the end of the curve, collided with the horses and rebounded slightly back to her left. She could also have steered more to the left when a collision appeared imminent. [Ms Fox's] body could have been carried an unknown distance on the front of the Kombi and fallen in front of it just before it stopped[65].
It is my opinion that the probability that [Ms Fox] and her horse were on their correct side of the road was significantly greater than the converse probability."
[65]Although, it should be noted that there was no evidence that Ms Fox's body ever came in contact with the Kombi.
In a subsequent report, after Mr Tindall became aware of the skid marks, he concluded:
"The collision with the horse may have occurred anywhere along the ten metres while the van skidded or indeed before the skids, but it was most likely during the skids. Since the impact was relatively severe the impact was more likely to be in the early part of the skids. It was then that the position of the van was most important. … I caution against precise argument about the ability to locate the transverse position of the van relative to the centre of the road, at the impact point."
The trial judge accepted that Sergeant Volf had correctly observed the 10 metre skid marks on Ms Percy's correct side of the road. He also accepted that the vehicle ended up on Ms Percy's correct side of the road. However, despite this, the trial judge concluded that the accident occurred when Ms Percy was driving on the wrong side of the road and that the Kombi ended up on the correct side of the road for the reasons advanced by Mr Tindall:
"I come to the conclusion, however, that despite the skid marks that the accident occurred on [Ms Fox's] correct side of the road, and of course in that I do not accept [Ms Percy] … that the accident had happened on her correct side of the road."
The Court of Appeal
Beazley JA (with whom Handley JA agreed) noted that the trial judge's ultimate finding was based on acceptance of Mr Tindall's first report on the accident[66]. Her Honour identified a number of shortcomings with the report which the trial judge did not deal with in his reasons – most notably that the expert's report was based on several matters which were either not proved or not supported by the evidence. Accordingly, Beazley JA found that the trial judge erred in his acceptance of Mr Tindall's report. Her Honour said:
"Mr Tindall's report was based on several matters which were either not proved in or not suggested by the evidence. To the extent that he accepted there were skid marks and made allowance for that in his report, he did so in a way contrary to the evidence. The only evidence of the skid marks was that they were on the correct side of the road. Mr Tindall opined they ended up on the right side of the road. There is a fundamental difference between the two.
There were the other difficulties with his reports to which I have referred. In the circumstances, I consider the trial judge erred in his acceptance of [Mr] Tindall's explanation of the accident."
[66]The trial judge had said:
"I think that in the circumstances the fact of the matter is that Mr Tindall was correct in the assumptions he made … I think that I would accept Mr Tindall and I think that the probabilities are that the vehicle ended up on its correct side of the road for the reasons which Mr Tindall advances."
Beazley JA went on to say:
"It follows that, in my opinion, the evidence of [Ms Fox] and [Mr] Murdoch that [Ms Fox] was on the correct side of the road when the accident happened should not have been accepted by the trial judge. I have referred to the protection their evidence, would, in normal circumstances have under the Abalos[67] principle. That protection is lost where 'the trial judge ... has acted on evidence … "inconsistent with facts incontrovertibly established by the evidence"'[68] ... In my opinion, Sergeant Volf's evidence of the skid marks on the correct side of the road falls into that category."[69]
[67]Abalos v Australian Postal Commission (1990) 171 CLR 167.
[68]Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 per Brennan, Gaudron and McHugh JJ.
[69]In relation to the evidence of Mr Murdoch, Beazley JA stated:
"I add in passing, that a reading of the transcript of [Mr] Murdoch's evidence presents an unconvincing picture. That would not have been sufficient to displace his Honour's acceptance of it. However, with respect to his Honour, it is not possible to rationalise his Honour's acceptance of [Mr] Murdoch's evidence when it is in direct conflict with Sergeant Volf's."
Fitzgerald JA, in dissent, held that the trial judge's conclusion was properly open to him. His Honour said:
"There was nothing in contest at the trial other than factual issues in respect of which there was conflicting evidence necessitating an assessment of the credibility and reliability of the witnesses as well as consideration of substantially undisputed facts concerning what was observed after the collision. In determining those issues, his Honour had to take into account that the evidence of the parties and [Ms Fox's] companion was almost certainly affected by the trauma of the collision, the imprecision with which ordinary people describe such events and the possibility that the evidence of most witnesses probably involved some reconstruction after a period of years."
Ultimately, Ms Percy failed to persuade Fitzgerald JA that the trial judge did not carry out his task properly. His Honour was satisfied that the trial judge's conclusions were properly open to him.
The scope of appellate review where the trial judge accepts the evidence of a witness
Whether an appellate court should intervene in a decision of a trial judge who has made findings based on the credibility or demeanour of a witness is governed by the principles stated in Abalos v Australian Postal Commission. In that case, I said[70]:
"[W]here a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied 'that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion'[71].
…
[W]hen a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked."
[70](1990) 171 CLR 167 at 178, 179.
[71]Watt or Thomas v Thomas [1947] AC 484 at 488.
Mason CJ, Deane, Dawson and Gaudron JJ, the other members of the Court, agreed with my judgment. Abalos was applied in Devries v Australian National Railways Commission where Brennan and Gaudron JJ and I said[72]:
"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact[73]. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage'[74] or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'[75]."
[72](1993) 177 CLR 472 at 479.
[73]See Brunskill (1985) 59 ALJR 842; 62 ALR 53; Jones v Hyde (1989) 63 ALJR 349; 85 ALR 23; Abalos (1990) 171 CLR 167.
[74]SS Hontestroom v SS Sagaporack [1927] AC 37 at 47.
[75]Brunskill (1985) 59 ALJR 842 at 844; 62 ALR 53 at 57.
There was nothing novel about these statements. They derived from principles in decisions of this Court and the House of Lords stretching over the best part of a century.
Dearman v Dearman[76] was one of the first cases in which this Court had to consider the powers of an appellate court to review findings of fact by a trial judge. In Dearman, the Court restored the trial judge's findings and verdict, which had been set aside by the Full Court of the Supreme Court of New South Wales. The judgment of Isaacs J contains a valuable passage that shows why appellate courts must be wary of setting aside the findings of trial judges where demeanour may have played a part in making those findings, despite the appellate court's duty to make its own findings. His Honour said[77]:
"So that the position is clearly laid down by the very highest authority that the primary duty, and in fact the whole duty, of every Court of Appeal is to give the judgment which in its opinion ought to have been given in the first instance. But there are natural limitations, that is to say, in some cases, where the evidence below is solely upon written documents, if for instance it is upon affidavit as it used to be in the old Court of Chancery, the appellate Court is in as good a position as the primary Judge to say what ought to have been the decision; but where viva voce evidence is taken there is a large amount of material upon which the primary Judge acts that is altogether outside the reach of the appellate tribunal. The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the Judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal. So far as their judgment may depend upon these circumstances they are not in a position to reverse the conclusion which has been arrived at by the primary tribunal. Now it may be that in some cases the effect of what I call the unrecorded material is very small, indeed insignificant, and utterly outweighed by other circumstances. It may be, on the other hand, that it guides, and necessarily guides, the tribunal to the proper conclusion. If that is the case, as I have said before, the Court of Appeal cannot say that the conclusion is wrong without disregarding the material which it knows must have been existent before the tribunal below, and is necessary to a just conclusion." (emphasis added)
[76](1908) 7 CLR 549.
[77](1908) 7 CLR 549 at 561-562.
The subsequent admiralty case, The "Alice" and the "Princess Alice"[148] did no more than apply The "Julia", and provides no basis for the same rules to apply to appeals in jurisdictions other than Admiralty. Perhaps the special features of Admiralty cases to which the Right Hon. Lord Kingsdown had referred in The "Julia" had been overlooked by the time that the Hontestroom[149] came to be decided but I doubt it. Rather the remarks of Lord Sumner in Hontestroom[150] should be taken as applying in the Admiralty context only, the context with which the Court was there concerned.
[148](1868) LR 2 PC 245.
[149]SS Hontestroom v SS Sagaporack [1927] AC 37.
[150][1927] AC 37 at 47 per Lord Sumner.
Statements made by appellate judges about findings of fact by trial judges repeatedly emphasize the advantages attaching to an opportunity to hear and see witnesses. They tend to understate or even overlook that appellate courts enjoy advantages as well: for example, the collective knowledge and experience of no fewer than three judges armed with an organized and complete record of the proceedings, and the opportunity to take an independent overview of the proceedings below, in a different atmosphere from, and a less urgent setting than the trial.[151]
[151]cf discussion of credibility findings by Kirby J in State Rail Authority (New South Wales) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 at 332 [93]; 160 ALR 588 at 621.
With respect, I therefore entertain grave doubts whether the statement of principle of the majority in Devries represents the law in relation to factual appeals by way of rehearing, and pursuant to statutory provisions such as s 75A of the Act and like provisions in other States for several reasons.
Neither Kendall, Coombes nor the relevant enactment was referred to in the reasons.
The treatment of findings of facts in issue with the very high degree of sanctity that appellate courts have from time to time since the inception of statutory rights of appeal finds no warrant in the language of the relevant statutes themselves. That treatment is questionable not only by reference to the words of the statute but also having regard to the fact that there are other enactments[152] which do confer rights of appeal on points or issues of law only, thereby clearly distinguishing between, and providing for different consequences to attach to, errors of fact and errors of law. Perhaps judges in earlier times were unduly defensive, particularly in jurisdictions in which trial judges from time to time also sat as appellate judges in rotation. Perhaps it was inevitably seen as being financially and otherwise practically inexpedient, indeed almost impossible to allow full factual appeals to proceed on a wholesale basis. Speculation as to that will achieve no purpose. It is to the words of the Act that I will now turn.
[152]See for example Land and Environment Court Act 1979 (NSW), s 57; Compensation Court Act 1984 (NSW), s 32; Medical Practice Act 1992 (NSW), s 90.
Section 75A of the Act imposes positive duties upon the State appellate court, the performance of which is in no way conditioned by judge-made rules stated in very different language, and to a substantially different effect from the plain meaning of the section which, by sub-ss 6 and 10 imposes affirmative duties on the Court of Appeal, including to do what the nature of the case requires. Section 75A provides:
"75A Appeal
(1)Subject to subsections (2) and (3), this section applies to an appeal to the Court and to an appeal in proceedings in the Court.
(2)This section does not apply to so much of an appeal as relates to a claim in the appeal:
(a)for a new trial on a cause of action for debt, damages or other money or for possession of land, or for detention of goods, or
(b)for the setting aside of a verdict, finding, assessment or judgment on a cause of action of any of those kinds,
being an appeal arising out of:
(c) a trial with a jury in the Court, or
(d) a trial:
(i)with or without a jury in an action commenced before the commencement of section 4 of the District Court (Amendment) Act 1975, or
(ii)with a jury in an action commenced after the commencement of that section,
in the District Court.
(3)This section does not apply to an appeal to the Court under the Justices Act 1902 or to proceedings in the Court on a stated case.
(4)This section has effect subject to any Act.
(5)Where the decision or other matter under appeal has been given after a hearing, the appeal shall be by way of rehearing.
(6)The Court shall have the powers and duties of the court, body or other person from whom the appeal is brought, including powers and duties concerning:
(a)amendment,
(b)the drawing of inferences and the making of findings of fact, and
(c)the assessment of damages and other money sums.
(7)The Court may receive further evidence.
(8)Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds.
(9)Subsection (8) does not apply to evidence concerning matters occurring after the trial or hearing.
(10)The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires."
By the Act, the Court of Appeal was armed with all of the ample powers and duties of an appellate court under the Equity Act 1901 (NSW) (ss 81-89), and in particular the duty to rehear the case pursuant to s 82 which might even, for example, permit the Court to undertake a review in exceptional circumstances[153].
[153]Attorney-General v Wheeler (1944) 45 SR(NSW) 321.
To impose the test stated in Devries is, I think, to do what was said to be impermissible as long ago as 1920[154], to elevate as a practical matter, the decision of a judge sitting alone to the level of a verdict of a jury. This is so even though judges are bound to give reasons[155] and those reasons are required to be able to withstand scrutiny. The value of that scrutiny will be much reduced if a statement in the reasons that the demeanour of a witness has been determinative of the first instance decision, is effectively taken to be conclusive of the outcome of an appeal by way of rehearing. The vast majority of the cases tried in this country are tried by judges sitting alone and depend upon their facts rather than upon the application of complex legal principles. To impose an unduly high barrier, and not one sanctioned by the enactment conferring the right of appeal would be to deny recourse by litigants to what the Parliament of the State has said they should have. Judges are fallible on issues of fact as well as of law; sometimes they are obliged to work under a great deal of pressure, and sometimes they are denied a timely transcript. In the days when rights of appeal were first enacted, notes and transcripts were much less complete and reliable than they now are. And today courts of first instance, in some jurisdictions at least, rely heavily on written statements, certainly of the evidence in chief, the oral adducing of which might on occasions have been as, or even more revealing than, evidence adduced from an honest but inarticulate or nervous witness in cross-examination. Occasional errors of fact are bound to be made. No litigant should be expected to accept with equanimity that his or her right of appeal to an intermediate court is of much less utility because it goes to a factual error that can be explained away by a judge-made rule, than an appeal on a question of law: or that although the trial judge was wrong on the facts, there was no incontrovertible fact against which the judge's error could be measured. This Court recently heard an appeal which provided an insight into the disposition of one New South Wales judge at least with respect to his task of deciding a personal injuries case. During the course of an application to dispense with a jury to which one party was entitled, and had requisitioned, he said[156]:
"I'll tell you straight out, I would do away with all civil juries in the State, instantly and retrospectively. I think it leads to, quite frankly, perfectly obvious miscarriages of justice in these Courts every week, every single week ... I've been astounded here in the last six weeks calling this list, how many plaintiffs seek juries. I think it's prima facie evidence of professional negligence myself, for a plaintiff to seek a jury."
Demeanour based judgments in favour of plaintiffs following remarks of that kind are hardly likely to inspire confidence in persons wishing to defend claims against them. The test stated in Devries, in my respectful opinion, appears to go beyond some at least of the previous authorities in this Court. If faithful obedience henceforth to the statutory language might be seen as a departure from some other previous authorities of this Court, there would not be anything especially novel about that. This Court has made such departures in recent times on a number of occasions: examples are Burnie Port Authority v General Jones Pty Ltd[157], Trident General Insurance Co Ltd v McNiece Bros Pty Ltd[158], David Securities Pty Ltd v Commonwealth Bank of Australia[159], Mabo v Queensland [No 2][160], Wilson v The Queen[161], R v L[162], Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission[163] and Brodie v Singleton Shire Council[164]. A test of "glaring improbability", "incontrovertible error" or "palpable misuse of an advantage" is not what the Act requires or all relevant previous decisions hold. Such a test pays, I am inclined to think, altogether too much deference to a trial judge's view of the facts and advantages, both actual and supposed. This is not to deny, however, that deference should be paid to first instance findings of credit. It is simply to prefer a test of wrongness, and to be guided by, rather than bound by findings on credit, or on the basis of demeanour.
[154]London Bank of Australia Ltd v Kendall (1920) 28 CLR 401.
[155]Pettitt v Dunkley [1971] 1 NSWLR 376.
[156]Quoted in Gerlach v Clifton Bricks Pty Ltd (2002) 76 ALJR 828 at 832 [22] per Kirby and Callinan JJ; (2002) 188 ALR 353 at 359.
[157](1994) 179 CLR 520.
[158](1988) 165 CLR 107.
[159](1992) 175 CLR 353.
[160](1992) 175 CLR 1.
[161](1992) 174 CLR 313.
[162](1991) 174 CLR 379.
[163](2002) 77 ALJR 40; 192 ALR 561.
[164](2001) 206 CLR 512.
I return to the facts of this case. Here Mr Tindall was described by counsel for the appellant as an "accident reconstruction expert". That is an ambitious claim. Three things may be said about the evidence in this case and running down cases generally. Rarely in my opinion will such evidence have very much, or any, utility. Usually it will be based upon accounts, often subjective and partisan accounts, of events occurring very rapidly and involving estimates of time, space, speed and distance made by people unused to the making of such estimates. Minor, and even unintended but inevitable discrepancies in relation to any of these are capable of distorting the opinions of the experts who depend on them. It is also open to question whether variables in relation to surfaces, weather, and the tyres, weight and mechanical capacities of the vehicles involved can ever be suitably accounted for so as to provide any sound basis for the expression of an opinion of any value to a court. The engagement of experts in running down cases, other than in exceptional circumstances, is not a practice to be encouraged.
The second matter is the reception, apparently without question, of the whole of the contents of the expert reports in this case. Some of the deficiencies to which reference has already been made would require that, either in law, or in the proper exercise of a discretion, much of them should have been rejected. In the long run the undiscriminating tender of inadmissible, unreliable or valueless evidence, the acquiescence in its tender by counsel on the other side, and its reception into evidence, will prolong and increase the costs of trials[165]. It will increase the margin for judicial error as occurred here, and will also lead to uncertainties and difficulties in courts of appeal. No court is bound to accept evidence of no probative value and evidence of slight probative value will rarely provide a foundation for any confident finding of fact, particularly if strong contrary evidence is available.
[165]Evidence Act 1995 (NSW): ss 135 and 136 confer very wide discretionary powers of rejection of evidence on courts.
The third matter to which reference should be made is that touched upon by Beazley JA in the Court of Appeal, the adversarial stance taken by Mr Tindall. This is very much to be regretted. It also might have been basis enough for the rejection of his evidence. What was said in the tenth edition of Phipson on Evidence and earlier editions before enactment of the Civil Evidence Act 1972 (UK) , and notwithstanding the enactment of the Evidence Act 1995 (NSW) remains relevant[166]:
"Value of Expert Evidence. The testimony of experts is often considered to be of slight value, since they are proverbially, though perhaps unwittingly, biased in favour of the side which calls them, as well as over-ready to regard harmless facts as confirmation of pre-conceived theories; moreover, support or opposition to given hypotheses can generally be multiplied at will.[167]"
[166]Phipson on Evidence, 10th ed (1963) at 481 §1286.
[167]In re Dyce Sombre (1849) 1 Mac & G 116 at 128 per Lord Cottenham [41 ER 1207 at 1212]; The Tracey Peerage (1838, 1843) 10 C & F 154 at 191 per Lord Campbell [8 ER 700 at 715]; Lord Abinger v Ashton (1873) LR 17 Eq 358 at 373‑374 per Jessel MR.
There is an additional difficulty, of reconciling the three tests stated in Devries. For myself, a test of glaring improbability does not raise quite as high a threshold as inconsistency with an incontrovertible fact, or indeed of palpable misuse of an advantage. Experience tells that in human affairs there are many controvertible assertions, and, matters of science and mathematics apart, real disputation as to which facts may be and which may not be incontrovertible.
The question remains however as to how this Court should dispose of this appeal. The question of the correctness of the test agreed upon as the appropriate one was simply not argued or explored here. The appeal in the Court of Appeal was conducted on the footing that the correct test was of inconsistency with incontrovertible facts in accordance with one of the formulations of the majority in Devries. The parties having invited the Court of Appeal to deal with the appeal on that basis it would not be fair for this Court to apply a different test now.
The trial judge was on any view shown to be in error, particularly in his misplaced reliance upon Mr Tindall. There were three props for the trial judge's decision. Each was essential to it. One was Mr Tindall's evidence, the remaining two, the appellant's evidence (itself suspect by reason of her inevitably reduced capacity to observe and recount what had happened by reason of her earlier intake of alcohol), and Mr Murdoch's evidence, it also containing a number of improbabilities. The first of the props has clearly been displaced. Great doubt attaches to the soundness of the others. The high test posed by Devries has been satisfied. The skid mark and the position of the respondent's car after the accident were incontrovertible facts inconsistent with the appellant's factual claims.
I would dismiss the appeal and join in the orders proposed by the other members of the Court.