Warren v Coombs and Another

[1979] HCA 9
(1979) 142 CLR 531
(1979) 53 ALJR 293
(1979) 23 ALR 405

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(Decision by: Gibbs ACJ, Jacobs J, Murphy J)

Warren
vCoombs and Another

Court:

Judges:
Gibbs ACJStephen J

Jacobs J
Murphy JAickin J

Legislative References:
Supreme Court Act 1970 (NSW) - s 75A(5)
Law Reform (Miscellaneous Provisions) Act 1965 - The Act
Supreme Court Act 1970 - The Act

Case References:
Benmax v. Austin Motor Co Ltd - [1955] AC 370; [1955] 1 All ER 326
Cashman v. Kinnear - [1973] 2 NSWLR 495
Chemical Industries of Australia and New Zealand Ltd v. Murphy - (1973) 47 ALJR 122
Committee of Direction of Fruit Marketing and Schroder v. Spence - [1954] St R Qd 295
Da Costa v. Cockburn Salvage and Trading Pty Ltd - (1970) 124 CLR 192
Edwards v. Noble - (1971) 125 CLR 296; [1972] ALR 385
Flannery v. Cohuna Sewerage Authority - (1977) 51 ALJR 135
Jones v. Capaldi - (1956) 98 CLR 615
Mann v. Mann - (1957) 97 CLR 433
Mersey Docks and Harbour Board v. Procter - [1923] AC 253; 39 TLR 275
Montgomerie & Co Ltd v. Wallace-Jones - [1904] AC 73
O'Neill v. Chisholm - (1972) 47 ALJR 1
Paterson v. Paterson - (1953) 89 CLR 212
Piro v. W Foster & Co Ltd - (1943) 68 CLR 313
Powell v. Streatham Manor Nursing Home - [1935] AC 243
Qualcast (Wolverhampton) Ltd v. Haynes - [1959] AC 743; [1959] 2 All ER 38
SS Hontestroom v. SS Sagaporack - [1927] AC 37
Voulis v. Kozary - (1975) 7 ALR 126
Ward v. James - [1966] 1 QB 273; [1965] 1 All ER 563
Webb v. Bloch - (1928) 41 CLR 331
Whitely, Muir & Zwanenberg Ltd v. Kerr - (1966) 39 ALJR 505

Hearing date: 17 April 1978
Judgment date: 13 March 1979

Sydney

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Decision by:
Gibbs ACJ
Jacobs J
Murphy J

On 6 March 1969 the appellant, a boy of almost 13 years of age, was seriously injured when the bicycle which he was riding came into collision with a car driven by the first respondent and owned by the second respondent. The appellant brought an action in the Supreme Court of New South Wales to recover damages for his injuries which he alleged were due to the negligent driving of the first respondent. The trial judge (Yeldham J) found that the appellant had not established negligence on the part of the first respondent, but, very properly, went on to make an assessment of damages in case an appellate court should take a different view. He assessed the appellant's damages at $160,000 but gave judgment for the respondents. An appeal to the Court of Appeal was dismissed by a majority (Hutley and Samuels JJ A; Moffitt P dissenting). The appellant now appeals to this court by special leave.

At the trial there was a conflict of testimony between the witnesses called for the appellant and those called for the respondents. The action was not tried until March 1976 and it would have been surprising if the witnesses had come to court with a fresh recollection of the circumstances of a collision that had occurred seven years before. The learned trial judge did not accept the evidence given by the appellant and those of his witnesses who were present when the collision occurred, and it is therefore unnecessary to recount their version of events, which the learned trial judge rejected. Perhaps, for completeness, it should be said that the learned trial judge did rely on some parts of the evidence given by those witnesses as corroborating certain evidence in the respondents' case which he accepted. However, there was one important witness called for the appellant whose evidence the learned trial judge did accept. This was the appellant's father, who gave evidence as to the position of marks on the roadway which the learned trial judge found were made by the wheels of the car driven by the first respondent (to whom we shall henceforth, for convenience, refer simply as the respondent). For the defence, evidence was given by the respondent himself and by four persons who had been passengers in his car at the time of the collision. As to this evidence the learned trial judge said: "Notwithstanding some discrepancies between them and errors by some of them in their observations and in their estimates of distance, I have come to the conclusion that their versions of what occurred were given honestly and with some exceptions are basically accurate."

The collision occurred at or near the junction between Funda Crescent and Burke Road, Lalor Park. Funda Crescent slopes downhill, from south to north, to form a "T'" junction with Burke Road, which rises uphill towards the junction from the east, and continues past it towards the west. At about 6.00 or 6.30 pm the appellant was riding his bicycle (with another boy as passenger) in a northerly direction along Funda Crescent, and the respondent was driving a Holden motor car in a westerly direction along Burke Road. Both parties were proceeding in the direction of the junction, and the respondent was on the appellant's right. Along the left-hand side of Burke Road on the eastern side of the junction (that is, on the side from which the respondent was approaching) there was a thick hedge, about 40 feet long, bordering the grounds of a house which stood on the corner of the junction. Since the footpath in Burke Road was 12 feet 10 inches in width, the hedge was about that distance back from the roadway. The learned trial judge found that the circumstances in which the collision occurred were as follows: "I find that the two boys upon the bicycle emerged into view without any warning from behind the hedge inside the fence of the house on the southwest corner of the intersection, travelling quickly and cutting the corner, and that they were on their incorrect side of the road; that the car was then travelling at between 30 to 35 miles per hour; that the first defendant immediately applied the brakes and the car skidded; that the point of impact was a little to the east of the prolongation of the eastern curve of Funda Crescent; and that the car travelled on a short distance after the impact, coming to rest at the spot where the tyre marks ended. The evidence satisfied me also that thereafter the plaintiff was thrown up on to the car and landed upon the roadway at a spot indicated by bloodstains in photographs which were tendered."

The statement that the hedge was inside the fence of the house on the south-western corner of the intersection was a slip -- the house was on the south-eastern corner. The finding that the car was travelling at between 30 and 35 miles per hour was based on estimates given by the respondent's witnesses. The fact that the collision was a little to the east of the imaginary line marking the prolongation of the eastern kerb of Funda Crescent means, of course, that the car had not reached the junction when the collision occurred. The spot where the car came to rest was, as will be seen, within the intersection itself -- in Burke Road at a point 49 inches to the west of that imaginary line. The blood marks were also within the intersection but further to the west. To say that the cycle hit the car on its "nearside front portion" needs a little explanation. The evidence given by the respondent and his witnesses makes it clear that the cycle hit the front of the car, between the headlights, but on the near side. The respondent himself said there was, on the Holden, a crease in the bonnet -- it was of course in the centre of the bonnet -- and that the car was hit between the left-hand headlight and the crease.

The wheels of the car made two marks on the surface of Burke Road, 54 inches apart. They extended for 52 feet, and ended 49 inches west of the imaginary line which marks the prolongation of the edge of the eastern footpath in Funda Crescent; in other words they began about 48 feet before the intersection. The marks went practically straight up and down the road -- "practically in a dead line", according to the appellant's father. They were more or less at a constant distance from the northern gutter of Burke Road, and this distance was measured at 10 feet 10 inches. The learned trial judge referred to the evidence last mentioned as follows: "Each road, as I have previously indicated, is 24 feet wide and hence it appears that the nearside wheels of the car were travelling about 8 feet 8 inches from the southern edge of the bitumen."

It may not greatly matter, but the learned trial judge was not quite correct in saying that Burke Road was 24 feet wide; in fact the evidence shows that at that point the road was 24 feet 6 inches in width, so that the nearside wheels of the car were about 9 feet 2 inches from the southern edge of the bitumen. But although the learned trial judge mentions the fact that the car was travelling at this distance from the left-hand side of the roadway, he does not refer to the significance of this fact, and indeed makes a finding which seems to us to be at variance with it. After referring to evidence that the car had not reached the intersection when the accident occurred, he continued: "This last-mentioned fact, which was deposed to also by the occupants of the car, indicates that when it hit the nearside front of the vehicle, the bicycle was well upon its incorrect side of the road and had swung out of Funda Crescent close to the south-eastern corner." The evidence of the marks, which the learned trial judge accepted, shows that when the car was hit it was straddling the centre of the roadway, with part of the vehicle on its wrong side of the roadway. Since the cycle struck the front of the car between the left-hand side and the centre of the bonnet, the cycle must have been quite near to the centre of the roadway when the collision occurred -- certainly on its incorrect side of the roadway, but only to the extent of a few feet at most. We should add that in the judgment of Hutley JA it is said that at the time of the collision the car was approximately 4 feet from the nearside kerb. This statement may have been based on evidence given by the respondent that the appellant was 4 feet out from the edge of the road when he came around the corner, but in the light of the evidence of the marks it was erroneous.

Some further evidence given by the respondent and his witnesses should also be mentioned. The respondent was questioned as to the position of the appellant when he first came into view. His answers were not altogether clear and consistent; at one stage he said that the appellant was then right on the corner, but when called on to mark the appellant's position on a photograph he marked a spot in Funda Crescent some feet back from the corner. The passengers in the respondent's car also saw the appellant while he was still in Funda Crescent; one, Mr R C Coombes, saw him appear from behind the hedge. All these witnesses agreed that the appellant was travelling on the wrong side of Funda Crescent and was cutting the corner to turn right into Burke Road and that he was moving quickly. They differed, however, in the evidence which they gave as to the position of the car when the appellant was first seen. The marks establish that when the brakes were first applied the car was 48 feet from the corner, but of course some time had to elapse after the respondent first saw the appellant before he reacted to the emergency and applied the brakes, and if he was travelling at 30 to 35 miles per hour he must have been about 90 to 100 feet from the intersection when he first saw the appellant.

There is no doubt that the appellant was guilty of a want of reasonable care for his own safety. The question for decision, however, is whether the learned trial judge was correct in finding that the respondent was not negligent. It was said on behalf of the respondent that it was not negligent to drive in a quiet suburban street at 30 to 35 miles per hour and that it could not be inferred that the respondent had failed to keep a proper lookout, because he could not have been expected to foresee that the appellant would attempt to execute so dangerous a manoeuvre as to cut the corner and turn across the path of a vehicle which had the right of way. But in particular it was said that the question for decision was simply one of fact and that the majority of the Court of Appeal rightly deferred to the decision of the learned trial judge. It would not be enough, so it was said, that if they had been trying the case they might have drawn different inferences from the facts. So the important question arises, what is the duty of an appellate court when questions of credibility have been decided and the matter which remains for decision is what inferences should be drawn from facts which have been found and are no longer in contest?

We are concerned, of course, with an appellate tribunal to which there is an appeal by way of rehearing (Supreme Court Act 1970 as amended (NSW) s 75A(5)) and which has the powers and duties of the court from which the appeal is brought, including those of drawing inferences and making findings of fact (s 75A(6)(b)). In other words the Court of Appeal is in the same position as the Court of Appeal in England and the Full Courts of the Supreme Courts of the other States. The appeal, although by way of rehearing, is conducted on the transcript of the evidence taken at the trial, and the witnesses are not called to give their evidence afresh, but the appeal is a general appeal and is not limited, for example, to questions of law. The authorities which lay down the principles which should guide the court hearing an appeal of that kind have been often and fully discussed, notably in this court in Paterson v Paterson (1953) 89 CLR 212 at 218-25, but there are still differences of opinion upon the present question, which arises every day, and is fundamental to the performance of the duties of courts of appeal.

In SS Hontestroom v SS Sagaporack [1927] AC 37 at 47, Lord Sumner discussed what Lord Wright, in Powell v Streatham Manor Nursing Home [1935] AC 243 at 264 ; [1935] All ER Rep 58 at 66, called "the antinomy which arises when the court which is judge of fact has neither seen nor heard the witnesses". In such a case there is a conflict between two principles, each of which has to be given effect. The first is that the appeal is a rehearing, and, as Lord Summer said, it is not "a mere matter of discretion to remember and take account of this fact; it is a matter of justice and of judicial obligation". The second principle, again to quote Lord Summer, is that "not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their view of the probabilities of the case". The leading authorities have discussed the manner in which these principles should be applied and reconciled and have sometimes emphasized one principle rather than another, as the nature of the case has required. However, until quite recently they have not departed from the view that it is the duty of the appellate court to form an independent judgment about the proper inferences to be drawn from established facts.

In the House of Lords the relevant principles were discussed in Powell v Streatham Manor Nursing Home , a case of negligence. The decision there was held to turn on questions of credibility, and their Lordships drew attention in strong terms to the great advantage which is enjoyed by a trial judge who has seen and heard the witnesses and followed the trial through its progress, but there is nothing in the judgments that supports the view that the trial judge enjoys a similar commanding advantage in drawing inferences from established facts. The headnote ([1935] AC 243) in our opinion sums up correctly the effect of the judgments as follows:--

Where the question at issue is the proper inference to be drawn from facts which are not in doubt, the appellate court is in as good a position to decide the question as the judge at the trial is.

But the appeal, although a rehearing, is a rehearing on documents and not, as a rule, on oral evidence; and where the judge at the trial has come to a conclusion upon the question which of the witnesses, whom he has seen and heard, are trustworthy and which are not, he is normally in a better position to judge of this matter than the appellate tribunal can be; and the appellate tribunal will generally defer to the conclusion which the trial judge has formed.

The first part of the headnote is taken from the speech of Lord Wright who, after referring, at p 267, to "the problem which faces the Court of Appeal when it has to act as a judge of fact on the rehearing, but finds itself 'in a permanent position of disadvantage as against the trial judge'", went on, at p 267: "The problem in truth only arises in cases where the judge has found crucial facts on his impression of the witnesses: many, perhaps most cases, turn on inferences from facts which are not in doubt, or on documents: in all such cases the appellate court is in as good a position to decide as the trial judge." He went on to point out the great advantages enjoyed by the trial judge in a case "where the evidence is conflicting and the issue is one of fact depending on evidence". However, we do not understand him, or indeed any of their Lordships, to say that because the case is one in which there is a conflict of evidence the appellate court may not draw for itself the necessary inferences of fact once the primary facts have been determined. Of the other speeches delivered in that case we think it is necessary only to refer to that of Lord Atkin who said, at p 255: "I wish to express my concurrence in the view that on appeals from the decision of a judge sitting without a jury the jurisdiction of the Court of Appeal is free and unrestricted. The court has to rehear, in other words has the same right to come to decisions on the issues of fact as well as law as the trial judge. But the court is still a Court of Appeal, and in exercising its functions is subject to the inevitable qualifications of that position. It must recognize the onus upon the appellant to satisfy it that the decision below is wrong: it must recognize the essential advantage of the trial judge in seeing the witnesses and watching their demeanour. In cases which turn on the conflicting testimony of witnesses and the belief to be reposed in them an appellate court can never recapture the initial advantage of the judge who saw and believed." The remarks of Lord Macmillan, at p 256, are similar in effect.

The House of Lords again considered the matter in Benmax v Austin Motor Co Ltd [1955] AC 370 ; [1955] 1 All ER 326. That was a patent case, but their Lordships did not state or apply any rule peculiar to such a case and their observations as to the duty of an appellate court were quite general, and indeed some of those remarks were specifically directed to the position in negligence cases. The speeches in that case are important, and we must quote from them at some length. Viscount Simonds commenced by citing two earlier decisions of the House of Lords. He said ([1955] AC at 372-3; [1955] 1 All ER at 327): "Fifty years ago, in Montgomerie & Co Ltd v Wallace-Jones [1904] AC 73 at 75 Lord Halsbury LC said: 'But where no question arises as to truthfulness, and where the question is as to the proper inferences to be drawn from truthful evidence, then the original tribunal is in no better position to decide than the judges of an appellate court.' And in Mersey Docks and Harbour Board v Procter [1923] AC 253 at 258-9 ; 39 TLR 275, Lord Cave LC said: 'The procedure on an appeal from a judge sitting without a jury is not governed by the rules applicable to a motion for a new trial after a verdict of a jury. In such a case it is the duty of the Court of Appeal to make up its own mind, not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes into question, but with full liberty to draw its own inference from the facts proved or admitted, and to decide accordingly."

He went on to say that these statements were consistent with the rules of the Supreme Court which prescribe that all appeals to the Court of Appeal shall be by way of rehearing and that the Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been made. He continued (AC at 373-4; All ER at 327-8): "This does not mean that an appellate court should lightly differ from the finding of a trial judge on a question of fact, and I would say that it would be difficult for it to do so where the finding turned solely on the credibility of a witness. But I cannot help thinking that some confusion may have arisen from failure to distinguish between the finding of a specific fact and a finding of fact which is really an inference from facts specifically found, or, as it has sometimes been said, between the perception and evaluation of facts. An example of this distinction may be seen in any case in which a plaintiff alleges negligence on the part of the defendant. Here it must first be determined what the defendant in fact did and, secondly, whether what he did amounted in the circumstances (which must also so far as relevant be found as specific facts) to negligence. A jury finds that the defendant has been negligent, and that is an end of the matter unless its verdict can be upset according to well established rules. A judge sitting without a jury would fall short of his duty if he did not first find the facts and then draw from them the inference of fact whether or not the defendant had been negligent. This is a simple illustration of a process in which it may often be difficult to say what is simple fact and what is inference from fact, or, to repeat what I have said, what is perception, what evaluation. Nor is it of any importance to do so except to explain why, as I think, different views have been expressed as to the duty of an appellate tribunal in relation to a finding by a trial judge. For I have found, on the one hand, universal reluctance to reject a finding of specific fact, particularly where the finding could be founded on the credibility or bearing of a witness, and, on the other hand, no less a willingness to form an independent opinion about the proper inference of fact, subject only to the weight which should, as a matter of course, be given to the opinion of the learned judge. But the statement of the proper function of the appellate court will be influenced by the extent to which the mind of the speaker is directed to the one or the other of the two aspects of the problem."

The other members of the House were in general agreement with Viscount Simonds but Lord Reid added some remarks of his own in the course of which he said (AC at 376; All ER at 329): "But in cases where there is no question of the credibility or reliability of any witness, and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion." Lord Somervell of Harrow (AC at 377; All ER at 330) said: "I would, as does he [Lord Simonds], respectfully differ from those who have suggested that an appeal on fact from a judge sitting alone is the same as, or should be assimilated to, an appeal from a jury. Apart from the fact that in the former case the appeal is a rehearing, juries do not, and judges in varying degrees do, give reasons for their conclusions. In a negligence action it may be clear on appeal from a judge alone how he has found what have been conveniently called the primary facts. An appellate court must be free to consider whether the judge, who has, I will assume, found for the plaintiff, applied the standard of the reasonable man, as our law prescribes, or the standard of a man of exceptional care and prescience."

So far as we are aware there has been no dissent in the House of Lords since that time from those statements of principle; on the contrary they have been followed and applied. The effect of the case, so far as it concerns the present question, was stated by Lord Denning in Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743 at 762 ; [1959] 2 All ER 38 at 46, as follows: "Since the case of Benmax v Austin Motor Co Ltd the Court of Appeal no longer takes refuge in that most unsatisfactory formula: 'Although we should not have come to the same conclusion ourselves, we do not think we can interfere'. If the Court of Appeal would not have come to the same conclusion themselves, it does what the Court of Appeal ought to do -- what it is there for -- it overrules the decision. But short of that, it should accept the conclusions of fact of the tribunal of fact."

This court has in a number of cases stated and applied similar principles and has recognized that where the question is whether particular inference should be drawn from proved facts the appellate court has the right and duty to decide the question for itself. The earlier cases were discussed in Paterson v Paterson , supra, and we need refer only to two cases which were not mentioned in the judgments in that case; we do so because they were cases of negligence. In Piro v W Foster & Co Ltd (1943) 68 CLR 313, Latham CJ said, at 322: "The question here is whether an inference of contributory negligence should be drawn from facts which are not in doubt. In such a case an appellate court is in as good a position to decide the question as the judge at the trial ( Powell v Streatham Manor Nursing Home ). The question is one of fact, depending upon the circumstances of each case." Starke J, at 329, expressed similar views. In Committee of Direction of Fruit Marketing and Schroder v Spence [1954] St R Qd 295, Williams, Webb, Kitto and Taylor JJ, in the course of a joint judgment, at 313, cited with apparent approval the statement by Lord Wright in Powell v Streatham Manor Nursing Home ([1935] AC at 267) that in cases which turn on inferences from facts which are not in doubt the appellate court is in as good a position to decide as the trial judge. Dixon and Kitto JJ, who wrote the leading judgment in Paterson v Paterson , appear to have regarded that judgment as consistent with the speeches in Benmax v Austin Motor Co Ltd . In Mann v Mann (1957) 97 CLR 433 at 440, Dixon CJ and Williams J said: "Where the question is, not what are the facts but what is the proper inference to be drawn from the facts proved, the appellate tribunal is no less competent to decide what these inferences should be than the judge who actually hears the case: Paterson v PatersonBenmax v Austin Motor Co Ltd ." And in Jones v Capaldi (1956) 98 CLR 615 at 618, Dixon CJ and McTiernan, Webb, Kitto and Taylor JJ spoke as though the two cases laid down the same principles.

The judgment of Barwick CJ in Whitely, Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 heralded a new approach to the question. Barwick CJ said, at 506: "No doubt where the conclusion of the trial judge is not based upon or in any respect influenced by his opinion of witnesses orally examined before him, the appellate court is in an equal position with the trial judge as to what inferences can be drawn from the facts as proved before him. But this does not mean that the appellate court should treat the appeal as a hearing de novo . The trial judge, although not depending in any respect on the credibility of any witness, may have preferred one possible view of the primary facts to another as being in his opinion the more probable. Such a finding may, in my opinion, be disturbed by an appellate court but this should only be done if other probabilities so outweigh that chosen by the primary judge that it can be said that his conclusion was wrong. Again, the trial judge, having found the prin due facts, may decide that a particular inference should be drawn from them. Here no doubt the appellate court has more room for setting aside that conclusion. But, even in that case, the fact of the trial judge's decision must be displaced. It is not enough that the appellate court would itself, if trying the matter initially, have drawn a different inference. It must be shown that the trial judge was wrong. This may be achieved by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge's decision is wrong."

Since that time the matter has been the subject of some controversy. In Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192 at 199 ; [1971] ALR 97, Barwick CJ adhered to the view that he had expressed in Whitely, Muir & Zwanenberg Ltd v Kerr . Windeyer J adopted a similar approach (see 124 CLR at 201, 207-8 and 210), but he went further. He said, at 212-3, that he was sceptical of applying to a finding of negligence the principle that an appeal court is as competent to determine the proper inference from proved facts as is the trial judge, and that inferences of fact from proved specific facts are logically in a different position from the evaluation or appraisal of the quality of a man's conduct, for in his opinion the evaluation of conduct in terms of reasonableness is a value judgment upon facts rather than an inference of fact. He said, at 214: "In short, in a case of this kind, the primary facts not being in question, I would treat the decision of the trial judge as the equivalent in all respects of the verdict of a jury, unless from his reasons it appeared that he had in some way misdirected himself." Walsh J took a different view, he said, at 217: "In my opinion, it was proper in the circumstances of this case for the majority in the Full Court to give effect to the conclusion to which their Honours came upon the question whether or not it should be found that the respondent had been in breach of its duty to the appellant. The conclusion was one which did not depend upon the resolving of any conflict of evidence or even upon the evaluation of the conduct of a person who had given evidence and in respect of whom the trial judge was in a position to form general impressions which might be of assistance in deciding the matter. The conduct to be evaluated was that of the respondent, acting through servants or agents who did not give evidence. Whether or not the trial judge, when deciding whether or not the appellant had acted reasonably, had advantages of a kind which would render it difficult for an appellate court to interfere with his finding on that issue, I am of opinion that their Honours in the Full Court were not precluded from giving effect to their own conclusions on the questionn whether or not it had been established that the respondent had been negligent." The other members of the court, Menzies and Gibbs JJ, decided the case on the facts.

The principles were again discussed in Edwards v Noble (1971) 125 CLR 296 ; [1972] ALR 385. In that case the Chief Justice (125 CLR at 303-7, and Windeyer J at 312-5) repeated and elaborated the views which they had expressed in Da Costa v Cockburn Salvage and Trading Co Ltd . The Chief Justice said, at 304: "The question is not whether the appellate court can substitute its view of the facts which, of course, it is empowered to do: but whether it should do so. In any appeal against a finding of fact, whether or not by way of rehearing, however much the appellate court may be in an equal position with the trial judge as to the drawing of inferences, in my opinion, the appellate court ought not to reverse the finding of fact unless it is convinced that it is wrong. If that finding is a view reasonably open on the evidence, it is not enough in my opinion to warrant its reversal that the appellate court would not have been prepared on that evidence to make the same finding." Later he said, at 304: "But, in any case, the appellate court in my opinion is not bound to reverse the primary judge's finding of fact merely because it held a different opinion to that of the primary judge."

He discussed Benmax v Austin Motor Co Ltd and said (125 CLR at 305-6): "Thus, Benmax v Austin Motor Co Ltd does decide that an appellate court is not so bound by the inferences of facts drawn by a primary judge without dependence on the credibility or bearing of witnesses that it may not examine the matter for itself." However, he went on to say, at 306:--

But in my opinion none of these cases warrants the conclusion that an appellate court may properly set aside such a finding of fact where it is not satisfied that it is wrong, in the sense I endeavoured to explain in Whitely, Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505. These cases were decided against the background of a submission that an appellate court was unable to overturn a finding of fact by a judge sitting alone except in circumstances in which it would have ordered a new trial after verdict by a jury. Mersey Docks and Harbour Board v Procter [1923] AC 253 ; [1923] All ER Rep 134, was used by Lord Simonds in Benmax v Austin Motor Co Ltd [1955] AC 370 ; [1955] 1 All ER 326, to support the conclusions he expressed in that case which, as I have pointed out, was a case in which the ability of an appellate court to reverse a primary judge's finding of fact was challenged.

Of course the finding of the judge sitting alone cannot be equated to the verdict of a jury. An appellate court considering such a finding is not confined to considering whether there was any material to support the finding or whether the finding was against the weight of the material properly available to the judge. The appeal is a full appeal that is to say, both as to fact and law. The relevant question here, as I have said, is whether the appellate court, as a matter of judicial restraint, ought to reverse the finding of fact.

Windeyer J said (125 CLR at 312-3): "I remain firmly of the opinion that a judge in an appeal court ought not, except in very special circumstances, to substitute for the conclusion of the trial judge his own view of what a hypothetical reasonable man would or would not have done. And that is what is involved in a reversal of a finding of negligence, or no negligence, when the facts of the occurrence are not in doubt. I do not suggest that there can never be a case in which an appeal court can properly be convinced that a trial judge was wrong in his evaluation of conduct in terms of fault, or of a degree of fault. But that, I consider, is not so merely because members of the appeal court entertain a different opinion of the character of a man's conduct, in terms of reasonableness, from that which the trial judge formed. It is only so, I think, if the reasons that he gave for his conclusion shew that he had in some way misdirected himself in law, or has altogether overlooked or mistaken some relevant fact."

The other members of the court were McTiernan, Menzies and Walsh JJ. McTiernan J said, at 307, that this was not a case in which the Court of Appeal might legitimately substitute its conclusion for the judgment of the primary judge, but we do not understand that he was accepting one or other of the different views put forward in this case. Menzies J expressed what we consider the traditional view. He said, at 308-9: "... as I read the cases, the rules have remained very much as they were established over 70 years ago. They are (1) upon such an appeal the task of a Court of Appeal is so different from its task in considering motions for new trials after a jury verdict that it is wrong to use in relation to one the language appropriate to the other; (2) a Court of Appeal does not supplant the trial judge by trying the case afresh on the record; (3) a Court of Appeal, while having regard to the judgment appealed from, is under a duty to make up its own mind as to the facts; (4) special weight ought to be given to the judgment appealed from if anything turned upon the credibility of witnesses or any other matters as to which the judge hearing the case would have an advantage over the Court of Appeal; (5) in any case, even those within (4), where a Court of Appeal is satisfied of error on the part of the trial judge it will correct that error, even in cases where, although the reasons for the judgment of the trial judge do not themselves disclose any error, the result satisfies the Court of Appeal that there was undisclosed error."

Walsh J dealt with the matter as follows (125 CLR at 318-9):--

My first observation is that I did not intend by what I wrote in Da Costa's case (1970) 124 CLR at 217 to assert that in a case of the kind there being considered the appellate court should simply make its own evaluation of the reasonableness or otherwise of the conduct of a party charged with negligence, without any regard to the decision of the trial judge. I did not mean to deny the principle which has been variously stated as being that the court must be convinced that the trial judge was wrong or that it must be persuaded that he was 'clearly wrong' or 'plainly wrong'. My statement that in that case the judges who formed the majority of the Full Court of Western Australia were not precluded from giving effect to their own conclusions was based upon my view of the circumstances of that case.

My second observation is that I have always found much difficulty in distinguishing, in a practical sense, between a conclusion that a trial judge was wrong and a conclusion that he was clearly wrong. I think, also, that in the practical application of the principle it does not matter much whether in the statement of it the word 'convinced' or the word 'satisfied' is used. It may be said, in my opinion, that in whatever form of words the principle is expressed, it requires, even in a case in which the credibility of witnesses is not involved and in which the contest is as to the inference or conclusion that should be drawn from a set of primary facts, that if a choice has to be made between two conclusions both of which are open on the evidence and which are fairly evenly balanced, then the decision of the trial judge should stand. The appellate court should not deal with the case as if it were trying it at first instance. But, as has often been stated on high authority, the court has a duty to make up its own mind. It will do this taking into account the judgment of the primary judge and recognizing that it ought not to be set aside merely because of a slight preference for a different view upon a question upon which two views are open and as to which there is no definite preponderance of one view over the other. Subject to that limitation and subject to the well-organized limitations concerning conflicting testimony and the credibility of witnesses, the appellate court should give effect to its own conclusion.

My final observation upon the subject is that I do not think that a finding upon the question of negligence has a special degree of immunity from review by an appellate court not shared by other questions which may require that upon a given set of facts a conclusion or judgment be formed of such a kind that the correctness of the conclusion is not susceptible of logical proof. I am of opinion that it should not be held that a judgment which requires an evaluation of the conduct of a party against the standard or measure of the conduct of a reasonable man placed in the same position is a judgment with which an appellate court can interfere only in very special circumstances. In dealing with such a judgment it may frequently be right to take account of the fact that the question of negligence is one upon which different views will often commend themselves to different people, with the result that in some situations it may be difficult to be satisfied that the view of the trial judge was wrong. But such judgments have frequently been set aside, not because of the existence of very special circumstances, but because the appellate court after its own consideration of the facts and of the inferences that might be drawn from them has been satisfied that the conclusion of the trial judge was wrong and that effect should be given to a different conclusion.

The fact that this question was so fully discussed in Edwards v Noble has made that case a valuable source of reference, and it is frequently cited. However, it is clear that Edwards v Noble did not settle the controversy reflected in the conflicting judgments in that case. It is often difficult to decide whether observations made by a judge on appeal as to the proper attitude to be taken by the appellate court to the findings of fact made by the trial judge can be regarded as expressing the ground on which the decision of the appellate court rests. Sometimes it is unimportant what principle is applied, because a judge who takes the view that he is in as good a position as the trial judge to decide what inferences should be drawn from established facts may reach the same conclusion as a judge who believes that the decision of the trial judge should be allowed to stand notwithstanding that the judge of appeal has himself reached a different conclusion as to the proper inferences to be drawn. Often it will be unnecessary for the judge on appeal to decide between the different approaches; he may decide simply on the facts, as judges in appellate courts have done in countless cases. The dicta of Menzies and Walsh JJ in Edwards v Noble are opposed to those of Barwick CJ and Windeyer J, and McTiernan J decided the case on the facts. The case is a useful repository of statements of principle, but it is not a binding authority in favour of any particular view.

Since that time, in a number of cases, the members of this court have expressed their own preferences for one or other of these different approaches. Barwick CJ has continued to call for judicial restraint on the part of members of the courts of appeal, and to repeat that the decision of a trial judge should not be reversed simply because the appellate court holds a view of the facts different from that which the trial judge has taken, when that view is not unreasonable in the circumstances of the case: see O'Neill v Chisholm (1972) 47 ALJR 1 at 3Imperial Chemical Industries of Australia and New Zealand Ltd v Murphy (1973) 47 ALJR 122 at 126Hicks v Roberts (1977) 16 ALR 466 at 469Livingstone v Halvorsen (1978) 22 ALR 213 ; 53 ALJR 50 at 52. Menzies J in Imperial Chemical Industries of Australia and New Zealand Ltd v Murphy , said, at 128:--

In this case, it is, however, hardly satisfactory to refrain from dealing with the question whether ICI was negligent. For my part, I am inclined to agree with the trial judge that it was not. That, however, is hardly the matter for decision. The real question is whether it was shown that he was in error (see Edwards v Noble (1971) 45 ALJR 682).

...

I prefer, for reasons stated, the conclusions of the trial judge to those of the Court of Appeal. However, it is not necessary to go so far to determine this appeal. It is enough to say that, in my opinion, there was no warrant for the Court of Appeal substituting its contrary findings for those made on trial: Edwards v Noble , supra. The learned trial judge addressed himself to the correct issues and had ample grounds for finding as he did. I do not think that it has been shown that he was in error.

These remarks seem inconsistent with his earlier statement of principle in Edwards v Noble , but may not have been so intended since he expressly mentioned that case and did not suggest that he resiled from the opinions which he there expressed. Walsh J, in O'Neill v Chisholm (47 ALJR at 3, 4) repeated views similar to those which he had expressed in Edwards v Noble . Jacobs J, when President of the Court of Appeal, dealt with the subject in Cashman v Kinnear [1973] 2 NSWLR 495. There are some passages from that judgment to which we would particularly refer. Jacobs J said, at 498-9: "Even though a finding of negligence was open on the evidence, the question still remains whether the conclusion of the trial judge that there was negligence was right or wrong. If I finally reach the conclusion that it was right, the appeal fails. If I finally reach the conclusion that it was wrong, then in my view the appeal succeeds. No 'judicial restraint' should lead me, on an appeal to which the statutory provisions of the Law Reform (Miscellaneous Provisions) Act 1965, apply, to refrain from giving effect to that conclusion of fact to which I finally come. It seems to me, though I speak with some diffidence and with great respect, that the only stage at which 'judicial restraint' can properly be exercised is upon the initial question whether or not I should arrive at a different conclusion from that of the trial judge. If I apply that restraint, as it has been expressed in many decisions of the House of Lords, the Privy Council and the High Court, I would give great weight to the conclusions of the trial judge. In cases where the credibility of witnesses is involved the weight is so great that an appellant who seeks to overturn findings of facts so based faces an almost, but not quite, insuperable task. But even in cases of the latter category the weight of the trial judge's conclusion is very great. Even if I am inclined to a different view it is likely that the weight of the trial judge's view will outweigh that inclination. If, however, on final balance it does not, then I am bound to say that the conclusion of the trial judge is wrong." Later he said, at 499-500: "Thus if by judicial restraint is meant the lack of overweening certainty in one's own opinions so that respect and weight is given to the opinion of the judge below, then it is always something to be sought. The effect of that respect and weight will vary depending upon the subject matter and will be greatest when the case involves a discretionary judgment and next where the subject matter is one of conclusion or evaluation drawn or made from the facts found. But, in truth, this quality of respect must be all pervading whether the subject be fact or law. However, if it be suggested that by judicial restraint a judge exercising his office under the Supreme Court Act 1970, and its predecessors should restrain himself from giving effect to his own conclusion once he has, after applying to himself the mental restraint which flows by the process which I have described, finally reached that conclusion then it is in my view a suggestion contrary to that Act and its predecessors and I do not think that it should be adopted in the absence of a clear authority binding this court." He then examined the authorities and said that he adopted and applied the reasoning of Menzies and Walsh JJ in Edwards v Noble (125 CLR) at 308, 309, 317-9 and of Walsh and Gibbs JJ in O'Neill v Chisholm (47 ALJR) at 3, 4 and 5 and concluded by saying, at 509: "I, therefore, return to the facts, conscious that I must reach my own conclusion upon them, but at the same time obliged and willing to give great weight to the conclusions of the trial judge."

Murphy J has stated his views in Voulis v Kozary (1975) 7 ALR 126 at 142Kouris v Prospector's Motel Pty Ltd (1977) 19 AL R 343 at 357-8, and Livingstone v Halvorsen (1978) 53 ALJR at 57. In Kouris v Prospector's Motel Pty Ltd he said, at 357: "The Full Court of the Supreme Court was also bound to come to its own conclusion on the case and if it is different from that of the trial judge to give effect to it, even if the reasoning of the trial judge did not disclose any error of principle and was open on the evidence."

In Livingstone v Halvorsen (22 ALR at 227 ; 53 ALJR at 57) he said: "The Court of Appeal correctly took into account the trial judge's assessment of the reliability of the witnesses, but then came to their own view which differed from that of the trial judge. The appellant relied on statements in some of the reasons in Edwards v Noble (1971) 125 CLR 296 ; [1972] ALR 385, to support the contention that the Court of Appeal should not have interfered with the trial judge's decision. My view of the correct role of an appellate court is stated in Kouris v Prospector's Motel Pty Ltd (1977) 19 ALR 343. The appeal to the Court of Appeal was a true appeal. Such an appeal is not a mere exercise of supervisory jurisdiction. The parties to the appeal have a statutory right to the appellate court's decision on the merits of the case. If the appellate court is of the view that the appellant is entitled to succeed on the merits, it must not defer to the view of the primary judge. On an appeal to this court, the parties have a constitutional right to the decision of the court on the merits (see s 73 of the Constitution)."

In Webb v Bloch (1928) 41 CLR 331 at 360, Isaacs J had also said that this court has a constitutional duty to form its independent opinion as to the proper inferences from evidentiary facts, but since we are at present concerned with the position of the Court of Appeal rather than with that of this court we need not pursue that aspect of the matter. The views of Gibbs J have been expressed in O'Neill v Chisholm , at 5Imperial Chemical Industries of Australia and New Zealand Ltd v Murphy at 129, and Flannery v Cohuna Sewerage Authority (1977) 51 ALJR 135 at 136. In that case Gibbs J said: "Where the question depends on the proper inference to be drawn from undisputed facts, the appellate court, although bound to form its own conclusions, will still give proper regard to the findings of the trial judge at first instance."

Since Edwards v Noble , the statements of Walsh, Gibbs, Jacobs and Murphy JJ, although expressed in varying ways, are generally in line with the dicta of Menzies and Walsh JJ in that case. On the other hand, the opinion of Aickin J is nearer to that of Barwick CJ in Edwards v Noble . He said, in Livingstone v Halvorsen (22 ALR at 228 ; 53 ALJR at 57): "The nature of the task which this court faces in an appeal of this kind has been definitively stated by the court in a number of cases in recent years and it is enough to refer to Edwards v Noble (1971) 125 CLR 296 ; [1972] ALR 385, where many of the cases are discussed. As I understand that case the question for the court is to determine whether the Court of Appeal were justified in interfering with the decision of the trial judge. If on the facts as found by the trial judge two inferences were equally open, it would not be right for the Court of Appeal merely to substitute their own view of which inference should be drawn for that of the trial judge, though if one inference had a substantial preponderance of probability in its favour it may be justifiable to interfere with the trial judge if he took the view that the other inference should be drawn."

There is, in our respectful opinion, no authority that entitles us to depart from the doctrine expounded in this court in cases before and including Paterson v Paterson and in the House of Lords in Benmax v Austin Motor Co Ltd . The balance of opinion in cases since Edwards v Noble inclines in favour of adherence to that doctrine. Shortly expressed, the established principles are, we think, that in 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. These principles, we venture to think, are not only sound in law, but beneficial in their operation.

With the very greatest respect for the opinion of Windeyer J, we can see no reason to favour the suggestion, which he himself recognizes as heretical, that in a case of the negligence, where the primary facts are not in question, the decision of the trial judge should be treated as the equivalent of the verdict of a jury. That suggestion has not found favour with any other member of this court and we need say no more about it than that the traditional and practical reasons for the reluctance of an appellate court to interfere with the verdict of a jury do not exist where the judgment is that of a judge sitting alone; for one thing, the judge gives reasons, whereas the verdict of the jury is, as Lord Denning MR has said, "as inscrutable as the sphinx": Ward v James [1966] 1 QB 273 at 301 ; [1965] 1 All ER 563 at 575. Again with the greatest respect, we can see no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. To perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process. The duty of the appellate court is to decide the case -- the facts as well as the law -- for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment. Further there is, in our opinion, no reason in logic or policy to regard the question whether the facts found do or do not give rise to the inference that a party was negligent as one which should be treated as peculiarly within the province of the trial judge. On the contrary we should have thought that the trial judge can enjoy no significant advantage in deciding such a question. The only arguments that can be advanced in favour of the view that an appellate court should defer to the decision of the trial judge on such a question are that opinions on these matters very frequently differ, and that it is in the public interest that there should be finality in litigation. The fact that judges differ often and markedly as to what would, in particular circumstances, be expected of a reasonable man seems to us in itself to be a reason why no narrow view should be taken of the appellate function. The resolution of these questions by courts of appeal should lead ultimately not to uncertainty but to consistency and predictability, besides being more likely to result in the attainment of justice in individual cases. The interest of the community in the speedy termination of litigation might, no doubt, be an argument in favour of the complete abolition of appeals, although that would be far too high a price to pay merely for finality. However, if the law confers a right of appeal, the appeal should be a reality, not an illusion; if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it.

In the present case, the Court of Appeal was, and this court is, obliged to reach its own conclusion as to the inferences to be drawn from the primary facts found by the learned trial judge. Having given due weight to the conclusion reached by the learned trial judge we are unable to agree with it. The respondent's car was not being driven as near as practicable to the correct side of the roadway -- it was 8 or 9 feet further away from the left-hand kerb than was necessary. It appears from the facts which we have already set out that the cycle was no more than three feet from the centre of the roadway when it was hit, and it was therefore probable that if the car had been travelling in its correct position on the roadway, and if both vehicles had maintained their actual speeds and courses, no collision would have occurred. The respondent was approaching a junction the view of which was partially obscured by the hedge. A reasonable driver in his situation should have foreseen that other persons -- drivers or pedestrians, adults or children -- might be using those streets in a suburban residential area. We have already mentioned that the respondent must have been 90 to 100 feet from the intersection when he first saw the appellant; the fact that he could not avoid the appellant in those circumstances indicates that he was travelling at a speed which was excessive in the circumstances. The argument that the respondent could not have been expected to foresee that the appellant would be doubly negligent does not affect this conclusion; he could reasonably have foreseen that someone might appear in his path at the junction, even if he could not have foreseen the particular way in which the other person using the road would have behaved. In fact the respondent was unable to stop until he was into the intersection, notwithstanding that he actually saw the appellant, who at that time was still in Funda Crescent, travelling in a manner which indicated that he intended to cut the corner and not to yield right of way to the respondent. The proper conclusion to be drawn from the facts was that the respondent was driving in a negligent manner as he approached the intersection, having regard both to his speed and to his position on the roadway. The learned trial judge was wrong in holding that he was not negligent.

It then becomes necessary to apportion responsibility for the collision. We agree with Moffitt P that it is difficult to assess the fault of either party as materially in excess of that of the other, and in all the circumstances it seems to us that both should be regarded as bearing equal responsibility for the collision. The appellant should therefore have judgment for 50 per cent of the amount of damages assessed.

We would allow the appeal, set aside the judgment for the respondent and give judgment for the appellant for $80,000.