Barbosa v Di Meglio

[1999] NSWCA 307

CITATION:	Barbosa v Di Meglio [1999] NSWCA 307
FILE NUMBER(S):	CA 40291/98
HEARING DATE(S):	26 February 1999
JUDGMENT DATE:	31 August 1999
PARTIES :	Antonio Barbosa by his next friend The Protective Commissioner v Paul Pasquale Di Meglio
JUDGMENT OF:	Mason P at 1; Priestley JA at 17; Meagher JA at 88

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 6291/97
LOWER COURT JUDICIAL OFFICER:	Sinclair DCJ

COUNSEL:	A: AS Morrison SC; GJ Tabuteau R: BMJ Toomey QC; IJ McGillicuddy
SOLICITORS:	A: JS Pinto & Co, Petersham R: Dunhill Madden Butler, Sydney
CATCHWORDS:	BIAS - Application to disqualify for bias - Reasonable apprehension of pre-judgment and bias; EVIDENCE - Expert - Argumentative and conclusory material in report
CASES CITED:	Webb v The Queen; Hay v The Queen (1994) 181 CLR 41
DECISION:	Appeal dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40291/98
DC 6291/97
CLD 20959/94
MASON P
PRIESTLEY JA
MEAGHER JA

Tuesday, 31 August 1999


Antonio BARBOSA v Paul Pasquale DI MEGLIO
HEADNOTE

Two trucks were driving toward the appellant when he attempted to run across the road. While the truck in lane two, driven by Mr Murphy, braked in order not to hit him, this blocked the view of the truck in lane three who could neither see him coming nor brake quickly enough to avoid him. The appellant’s counsel at trial attempted to show that although the appellant was obviously careless of his own safety in trying to cross Botany Road in the way and in the place that he did, nevertheless the respondent had negligently and materially contributed to the happening of the accident. It was submitted that the sudden slowing down of Mr Murphy’s truck should have alerted the respondent to the likelihood that something unexpected might happen.

The appellant’s brain damage meant that he was unable to give evidence of the accident. Appellant’s counsel relied on evidence of Mr Murphy and on opinion evidence contained in three reports prepared by Mr Wingrove, a Consultant Transport Engineer. The appellant based his argument for the admissibility of these reports upon s80 of the Evidence Act. Objection was taken to the view expressed by the trial judge early in the hearing of submissions as to admissibility that the reports were “nonsense” in an evidentiary sense because they contained findings relating to the ultimate issues.

Sinclair DCJ rejected an application that he disqualify himself. He later admitted the reports into evidence with only minor exceptions.

The appellant appealed on the ground that the trial judge should have disqualified himself.

HELD by Mason P, dismissing the appeal:

The Trial Judge did not err in rejecting the application that he disqualify himself for apprehended bias. Minds will inevitably differ as to how robust a judge may be before bias is apprehended. However on the material particular to this case, his Honour’s conduct was not enough to generate a reasonable apprehension of bias. The later conduct of the case and the reasons for judgment do not disclose a miscarriage that would justify the overturning of the verdict.

HELD by Meagher JA, dismissing the appeal:

A reasonable lay observer would not have thought Sinclair DCJ’s behaviour tainted by bias. His Honour initially expressed dislike with the evidence of Mr Wingrove, however he admitted most of it and invited and received debate on the value of it. The lay observer would have thought it wise to prefer the actuality of Mr Murphy’s evidence to the theory of Mr Wingrove’s. His Honour made valid findings based on demeanour.

HELD by Priestley JA (dissenting) allowing the appeal, setting aside the verdict and judgment below and ordering a new trial:

The court must make an evaluation of whether a fair minded observer, seeing the incidents complained of and evaluating them in terms of the judge’s findings, would be of the view that it was manifest that justice had been done. In the circumstances of this case such an observer would have apprehended that the judge’s views about expert witnesses predisposed him to the rejection of the material part of Mr Wingrove’s opinions and that as a result the reasoning put before him would not be given the impartial consideration that was needed if justice be done and also be seen to be done. Discussion of the tests for reasonable apprehension of bias as opposed to actual bias.

Webb v The Queen; Hay v The Queen (1994) 181 CLR 41 (applied)

Discussion by Mason P and Priestley JA about whether an expert report loses weight due to argumentative and conclusory content.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40291/98
DC 6291/97
CLD 20959/94
MASON P
PRIESTLEY JA
MEAGHER JA

Tuesday, 31 August 1999



Antonio BARBOSA v Paul Pasquale DI MEGLIO

JUDGMENT

1    MASON P: I have had the advantage of reading the judgments of Priestley JA and Meagher JA. The judgment of Priestley JA sets out the facts and the issues in context. 2    In my view the appeal should be dismissed. 3    It is important to note what is not in issue in the appeal. The appellant does not complain of the rejection of evidence or the failure to address critical arguments. Nor is this Court asked to overturn the verdict for the defendant on the basis of a rehearing of the material before the primary judge. In recording these matters, I am not suggesting that an appeal on these grounds would have succeeded had it been advanced. 4    The sole issue is whether the trial miscarried when the trial judge rejected an application that he disqualify himself. 5    The trial judge had been invited to read three reports of an expert witness as an aid to understanding the issues raised by the objection to their admissibility. Perusal of the reports led to strong remarks from the bench about their admissibility and cogency. But the categorical tones wilted every much as quickly as they were seized upon by senior counsel for the plaintiff at trial as the basis of an application that the trial judge disqualify himself. 6    In my view the judge did not err when he rejected this application. I have considered the totality of the material set out by Priestley JA. This shows that the trial judge heard, understood and responded to the issues on their merits. The later conduct of the case (including reasons for judgment) does not disclose a miscarriage that would justify the overturning of the verdict. 7    The principles relating to what is called reasonable apprehension of bias are well known. They were recently applied by this Court in Dovade Pty Ltd & Ors v Westpac Banking Group & Anor [1999] NSWCA 113. It is sufficient to note that the role of an appellate court is to determine whether it is satisfied that, in all the circumstances of the particular case, the parties or the public might entertain a reasonable apprehension that the judge might not have brought an impartial and unprejudiced mind to the resolution of the question involved. 8 In Dovade (at par 92) this Court approved the following remarks of Tadgell JA in Gascar v Ellicott [1997] 1 VR 332 at 342:

Although the criterion of apprehension of partiality or prejudice is possibility, not likelihood, a reasonable apprehension is to be established to the court’s satisfaction: it is a reasonable and not a fanciful or fantastic apprehension that is to be established; and the apprehension is to be attributed to an observer who is “fair-minded” - which means “reasonable”. As Mason CJ and McHugh J pointed out in Webb v R at 52 “… it is the court’s view of the public’s view, not the court’s own view, which is determinative”. Even so, the court is to be satisfied that the criterion is met not that it might be. In Builders’ Registration Board of Queensland v Rauber (1983) 57 ALJR 376 at 384, Brennan J observed that:


Each of the indicia which a party proves and relies upon to show a reasonable suspicion [which is to be substantially equated with a reasonable apprehension] of bias must be examined, and the Court is called on to determine whether, upon such indicia, a reasonable suspicion of bias arises.

(The parenthetical clause in the passage cited from Brennan J is added by Tadgell JA.)

9    In the present context it is important to draw three distinctions. First, the litigant’s right is to have a tribunal that is free of prejudgment. The litigant is not entitled to a tribunal that is predisposed to accept or reject any particular proposition. An open mind is not an empty one. (To my knowledge, the distinction between an open and an empty mind derives from a speech of Bertrand Russell to the first meeting of members of a War Crimes Tribunal convened to investigate aspects of the United States’ war in Vietnam. Russell also called for rejection of “the view that only indifferent men are impartial men”: The Autobiography of Bertrand Russell vol III p216).) 10    In the Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-4 the High Court reminds that:

…requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.

See also Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352.

11    The corollary is that error, even persisting error, in holding a particular legal position is not the criterion of reasonable apprehension of bias. It may be evidence of the same, but capacity for error is universal. Error may be corrigible through argument or by appellate processes. But it does not per se establish a reasonable apprehension of bias. 12    The second distinction is that which lies between unappealing judicial behaviour and appealable judicial behaviour (cf Dovade at 107). Minds and practices will inevitably differ as to how robust a judge may be (or appear) before reasonable apprehension of bias is established in a particular case. Ultimately an appellate judge must form his or her own judgment. I do not share Meagher JA’s certainty about the result in this case, but I am not persuaded that the material relied upon by Priestley JA indicates that a reasonable apprehension of bias was generated. 13 The third distinction relates to attitudes disclosed by remarks made during argument and attitudes evidenced by the final determination of a trial judge. The trial judge who sits in stony silence without exposing his or her views is not to be emulated, if silence impedes genuine engagement and debate about critical issues (Vakauta v Kelly (1989) 167 CLR 568 at 571, Galea v Galea (1990) 19 NSWLR 263, Johnson v IPEC Transport Group (1993) 9 NSWCCR 427 at 442). The dialectical exchanges between bench and bar will often involve overstatement, response, modification and accommodation. The vigour of the primary judge’s early expressed reaction to the report may not be a model of judicial behaviour, but it did not have the effect of driving his Honour from the judgment seat. 14 Some of the opinions voiced by the trial judge are not tenable in the form originally expressed. Some comments are reminiscent of Dixon CJ’s criticism of the evidence of Mr Foster Joy in Clark v Ryan (1960) 103 CLR 486 at 492 (“Some of it was an attempt to guide the jury upon matters which it was within the ordinary capacity of jurors to determine for themselves.”). It would appear that His Honour ultimately recognised that s80 of the Evidence Act 1995 changed this, when he admitted practically all of Mr Wigmore’s reports into evidence. At any event, there is no complaint in this court on this issue. 15    I cannot accept, without qualification, the trial judge’s criticism of Mr Wigmore’s evidence as “argumentative”. To say this of an expert report does not, in my view, destroy the credibility and cogency of the expert’s opinion, so long as its factual basis is laid bare and the opinion clearly linked and confined to the professed expertise (cf HG v The Queen [1999] HCA 2). I agree with what Priestley JA has written in pars 16> and 43> of his reasons. See also Papadopoulos v New South Wales Insurances Ministerial Corporation [1999] NSWCA 116. 16 It is true that there exists an “ill-defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular [expert] witnesses could threaten the appearance of impartial justice” (Vakauta at 571 per Brennan J, Dawson J and Gaudron J). I do not think that this line was crossed here. The judge’s remarks were not directed at particular witnesses, but at a class of expert evidence which was characterised in vigorous terms, which were later modified and applied with proper discrimination in the actual rulings which followed. 17 PRIESTLEY JA: Mr A Barbosa unsuccessfully brought an action as plaintiff in the District Court against Mr P. Di Meglio as defendant. He has appealed to this court. In the appeal Mr Barbosa is called the appellant and Mr Di Meglio the respondent. 18    At the trial in the District Court, the appellant’s case was that when, as a pedestrian, he was crossing Botany Road, Mascot, he was struck by a motor vehicle negligently driven by the respondent. There is no doubt that the appellant was struck by the respondent’s vehicle and that he was seriously injured. Among many injuries were injuries to the head which caused permanent post traumatic brain damage. The severity of the brain damage is indicated by the two facts that it became necessary for the appellant to live in a nursing home with permanent nursing care and that he was unable to give evidence in his action against the respondent. Because he was a disabled person he brought the action by his Tutor, Aida Barbosa, for whom, it appears, the Protective Commissioner was later substituted. 19    So far as appears from the materials in the appeal papers, the only persons who may have been able to give direct evidence of the accident at the trial of the action were the appellant, the respondent and Mr W. Murphy, the driver of a truck which just missed the appellant a moment before he was struck by the respondent’s vehicle (also a truck). 20    The accident happened on 19 July 1993. Mr Murphy made a statement at the Bowral Police Station, near where he lived, on 1 September 1993, the material part of which was as follows (it is reproduced without correcting obvious mistakes):

“I was travelling along Botany Road, in the middle land heading towards Point Botany around 12.05 pm on the 19 July 1993 in my truck No: RNQ 379, when a male person around 50 years old ran from the (footpath) on my left a straight in from of my truck, I was travelling at around 45-50 km/h at the time. I jumped on my brakes and locked up the tyres in order to miss the man, he kept running past my truck straight in from of the truck that was travelling in the right lane beside me. As I locked up I restricted the view of the truck in the right lane beside me and he would have been unable to see the man in from of him.

Q. ‘Did you see where the pedestrian came from?’

A. ‘I was watching him, he was standing on the footpath and then he just ran out in from of us.

Q. ‘How many years have you been driving trucks?’

A. ‘About 7 years.’” (This statement became both Exhibit B and Exhibit 2.)

21    The P4 Traffic Collision Report, compiled on the day of the accident, was in evidence as Exhibit 8, subject however to the exclusion of what appeared in the “summary” box which was the only potentially useful part of it. However, what it recorded, that the appellant “ran from in front of a vehicle travelling south in lane 2 into the path of” the respondent’s vehicle also travelling south in lane 3 (the lane closest to the median strip), was proved by Mr Murphy’s evidence. 22    The respondent made a statement to a police officer on the day of the accident in which he said that he had been the driver of the vehicle involved in the collision with the appellant, that he had been travelling at 40 km/h and, in answer to the question “What happened to cause the collision?”, said:

“I was travelling south in Botany Rd Mascot in lane 3 of three south bound lanes. Lane number 2 was travelling at the same speed. All of a sudden a male ran out in front of my truck from in front of the vehicle travelling in Lane two. When I first saw the man he was in front of my truck about 1 metre away. I hit the brakes, and the front of my truck hit the man. The man then fell on the lane line between lanes 2 and 3 north bound.” (Exhibit 9)

23 This was the principal information available to the appellant’s counsel at the commencement of the trial. (He also apparently had a later statement from Mr Murphy, but it never became evidence, and presumably was no more helpful to the appellant than Exhibit B.) It is clear from reading the transcript of what happened at the trial that the appellant’s counsel, of considerable experience, recognised that it was a difficult case in which to establish negligence against the respondent and that the only way it might be done was to show that although the appellant was obviously careless of his own safety in trying to cross Botany Road in the way and at the place that he did, nevertheless the sudden slowing down of Mr Murphy’s truck in the lane next to and just ahead of the respondent’s vehicle should have alerted the respondent to the likelihood that this sudden slowing down was caused by something unusual happening near Mr Murphy’s truck; and that he should have then slowed down, or at least been alert to the possibility that something otherwise unexpected might happen. On one view of the available materials, even a very slight slowing down by the respondent would have meant that his truck missed colliding with the appellant. Even if this case succeeded, it also seems probable that the trial court would have found that the respondent had established contributory negligence against the appellant, in a significant proportion. 24 The appellant’s counsel was thus faced with a difficult forensic task when the trial began before his Honour Judge Sinclair QC. He had to get evidence before the court of the facts of the accident, without being able to call the appellant, and he had to have some material before the court upon which he might hope to persuade the trial judge that the respondent had negligently and materially contributed to the happening of the accident. 25 The first witness called in the plaintiff’s case was Mr Murphy. Counsel for the plaintiff applied pursuant to s 38 of the Evidence Act for leave to cross examine him. The application was at first refused but later granted (Black AB 184-187). Mr Murphy’s evidence yielded some facts in addition to those in his statement of 1 September 1993. These were: the accident happened 50 to 100 metres from an intersection controlled by traffic lights towards which the trucks of Mr Murphy and the respondent were going; those lights were then green; when Mr Murphy applied his brakes his truck did not make a great deal of noise and shudder but, with the wheels locked, slid forward; the respondent’s truck was in the lane on Mr Murphy’s right and the front of his truck was near the rear of Mr Murphy’s truck; Mr Murphy’s truck missed the appellant by about three feet; as a result of his braking his truck had slowed significantly; his truck had twelve wheels; he remembered his truck skidding, because there was smoke; (and, in cross examination by counsel for the respondent) Mr Murphy’s truck had no load at the time of the accident; unladen it weighed in the region of 13.7 tonnes; the respondent’s truck was “three or four tonne”; Mr Murphy had noticed the appellant standing between parked cars in the kerbside lane and he appeared to be looking for a break in the traffic; Mr Murphy said “he was ready to go, you know”; the appellant ran across the road; just before the accident Mr Murphy looked in his rear vision mirror and saw the respondent’s truck coming in lane 3, and unlike Mr Murphy’s truck, not slowing down. 26    The next witness called in the appellant’s case was an expert, Mr Wingrove, a Consultant Transport Engineer. Acceptance of certain parts of the reasoning involved in his opinion evidence would be critical for the appellant’s case. Stated shortly, the opinion stated in his evidence, if accepted, would provide a foundation for the court to hold that if the respondent driving in lane 3, close behind Mr Murphy driving in lane 2, had noticed the sudden slowing down of Mr Murphy’s truck and thereby been alerted to the possibility of trouble near Mr Murphy’s truck, he would, in an alert state, either have slowed down, or reacted more quickly when he saw the appellant than he in fact did, in either event being able to slow down enough so that his truck just missed the appellant, in contrast to what actually happened, which, according to the respondent’s statement left him seeing the appellant when only one metre away, with his truck even then nearly, but unfortunately not, missing the appellant. 27    Mr Wingrove’s qualifications, annexed to the first report, dated 29 May 1995, of three reports he had prepared for the appellant’s solicitors, were as follows:

“1) I am a Consultant Transport Engineer by occupation and have maintained my own full time consulting business since 1991.

2) I hold the degrees of Bachelor of Science and Master of Engineering Science (Transport Engineering). Both degrees were awarded by The University of New South Wales.
3) I am an Associate of the Institute of Arbitrators Australia.
4) After completing my Bachelor of Science degree in 1966, I had approximately three years experience with the Tyre Industry, actively involved in the design, construction and testing of tyres. I held the position of Australian Field Service Engineer for Firestone Australia Pty Limited.
5) During my employment with Firestone, apart from the manufacturing aspect of the tyres, I supervised the Technical Service Section for the Company’s inner tube production and the Retread Division and was also attached to the British Firestone Motor Racing Division for the purpose of servicing the Lotus and Ferrari motor racing teams during the Tasman Motor Racing Series.
6) I hold an explosive permit, issued by the State of Victoria, to be used for the purpose of simulating tyre ‘blowouts’ on motor vehicles.
7) After leaving Firestone, I worked as a Professional Officer with The University of New South Wales from 1969 to 1990. For the period 1969 to 1980, I was engaged in research activities with The Institute of Highway and Traffic Research and The Graduate School of Traffic Engineering. In 1980, I transferred to the School of Civil Engineering, department of Transport Engineering.
8) Since 1970 I have been a consultant to the university’s company, Unisearch Limited, on numerous types of transport, work related and motor vehicle related accidents. I have appeared in both the Civil and Criminal Court jurisdiction on numerous occasions as an Expert Witness.
9) Since 1977, I have acted as a consultant to the New South Wales Police Vehicle Examination Unit and since 1984 I have been a consultant to the Police Accident Investigation Squad. During my consultative period with both sections of the New South Wales State Police Force, I have supplied expert opinion and evidence in relation to numerous serious motor vehicle accidents.
10) I have, on many occasion, been a consultant to the Legal Aid Commission of New South Wales.
11) I have given expert evidence in the New South Wales Land and Environment Court on traffic safety issues.
12) I have given expert evidence at a international level in the civil jurisdiction of the District Sessions Court at Ipoh in Malaysia.
13) I have been a Consultant Guest Lecturer on certain aspects of accident reconstruction for the Crime Scene Investigator’s Course as conducted by the Physical Evidence Section of the New South Wales Police Force. I have also been a Consultant Guest Lecturer at the Police Academy, Goulburn, for the Accident Investigators Course.”

28    Mr Wingrove’s examination in chief by counsel for the appellant began before the three reports were tendered, so counsel asked him questions about his qualifications. During this evidence, the following happened:

“Q. You’ve appeared in both Civil and Criminal Court jurisdictions on numerous occasions as an expert witness?

A. Yes.

Q. Since –

HIS HONOUR: What expertise does that create, that a person gives evidence?

MORRISON: The next matter will clear that up, I think, your Honour.

Q. Since 1977 you’ve acted as a consultant to the New South Wales Police Vehicle Examination Unit and since 1984 you’ve been a consultant to the Police Accident Investigation Squad?

A. Yes.

Q. And a good deal of the evidence you have given in Court has related to your duties in that capacity?

A. Yes.

Q. During my (sic) consultative period with both sections of the New South Wales State Police Force you’ve supplied expert opinion and evidence in relation to numerous serious motor vehicle accidents?

A. Yes.

Q. You have, on occasions, been a consultant to the Legal Aid Commission of New South Wales?

A. Yes.

Q. You’ve given expert evidence on traffic safety issues in the Land and Environment Court?

A. Yes.

Q. And you’ve given expert evidence in Malaysia in several proceedings there?

HIS HONOUR: What’s the miracle about Malaysia? Have they got a different system or what? I mean, sometimes this list of qualifications just becomes ridiculous, doesn’t it? How does it help me in assessing this gentleman’s evidence to know he’s given evidence in the District Court in Malaysia?

MORRISON: Your Honour, I’ll simply pass on to the final matter and deal with that.”

29    The examination in chief then proceeded, without further comment by the judge, to the point where counsel tendered Mr Wingrove’s three reports, that of 29 May 1995, and supplementary reports dated 28 July 1997 and 2 March 1998. Counsel for the respondent objected but, saying that it would take him a little time to develop the objections, invited the trial judge to read the reports “at least quickly to get the flavour of them” so that his submissions would be more understandable. The trial judge said that at that stage the reports could be handed up (without becoming exhibits) and he would “simply browse through them”. The respondent’s counsel handed up a decision of Levine J which he said was relevant O’Brien v Gillespie (1997) 41 NSWLR 549.
, and the trial judge then said:

“HIS HONOUR: I always have difficulty reading these reports. Nine times out of ten they seem to be in Alice in Wonderland. People talking about fractions of seconds. I have browsed through the reports. On a quick look at them they contain the usual mass of opinions on minor matters on the ultimate issues to be determined and various other things which in spite of the very wide provisions of the Evidence Act in relation to opinion these days I would think an analysis of the report would see more of it rejected than admitted. However that’s a preliminary view and probably as counsel realise a view I have expressed on other occasions in relation to these matters.”

30    The respondent’s counsel then addressed at length on the inadmissibility of the reports. The themes of his argument were that the expert was expressing opinions which “intruded upon the exercise of the essential judicial function” Discussed by Levine J in O’Brien v Gillespie.
, that the expert was really doing nothing more than act as an advocate for the appellant and that he was stating as his opinions conclusions which were for the trial judge to decide and not the expert. In the course of these submissions, as counsel was going through the three reports, par 10 of the second report was reached, which referred to “the front nearside corner” of the respondent’s vehicle colliding with the plaintiff when “offside corner” was clearly meant. When the respondent’s counsel pointed this out his Honour said:

“Well goodness gracious, you mean to say an expert doesn’t even know the left to the right?”

31    The appellant’s counsel remarked that it was a matter he “might have corrected in due course” (bearing in mind the reports had not yet become exhibits). 32    The offending par 10 was the subject of further submission by respondent’s counsel. The paragraph was in the following terms:

“It can be shown that because the front nearside corner of the defendant’s vehicle collided with the plaintiff, then with only a modest braking effort on the part of the defendant’s vehicle, the collision with the plaintiff would have been avoided. The defendant had sufficient time in which to apply the vehicle’s brake and reduce speed before the collision with the plaintiff occurred.”

33    This paragraph contained the substance of the appellant’s argument in the case. Very often, experts’ opinions are the conclusions they reach after a process of reasoning which, when stated, takes the form of an argument, in the sense of the statement of a reasoning process. The submissions to the trial judge never seem to have taken account of this not very subtle point. They seemed to assume that an “argument” by an expert could not be the foundation of an opinion but somehow invalidated it and turned the expert into an advocate. No doubt sometimes such an argument may be faulty, with the result that the opinion may not be accepted as well founded. Also, it may be expressed in the vernacular of the expert’s own area of knowledge, which may sometimes irritate a judge who expects all evidence to be given in conformity with regular court procedure. Nevertheless, if the argument (reasoning process) is sound and supports the opinion and the opinion is one in an area within which the person expressing it is acknowledged as an expert, then the argumentative (or reasoning) aspect of the formation of the opinion cannot of itself be a reason for excluding the argument or belittling the opinion. (It will of course be a different matter if the argument is unsound.) Nor, if the way in which the expert opinion is expressed does not conform to the judge’s ideas of proper form, should that by itself be a reason for not considering whether or not it has substance. 34    In dealing with par 10, respondent’s counsel said that it purported to answer the causation question in the case. He went on:

“It applies - it necessarily deals with a legal concept. We don’t know whether this man’s read March v Stramere and the other cases that follow it, and if he did, whether he understood them.
HIS HONOUR: Well it doesn’t matter because under our present system of dealing with Motor Accidents Act, it just happens to be dealt with and determined by a court. There may come a time in the next century when these cases are decided by motor vehicle experts.”

35    Respondent’s counsel went on to say that following paragraphs had the same defect, and then made the factually accurate submission that the second report was an answer to a report which had been furnished by an expert for the respondent. Respondent’s counsel pointed out that the second report could only become relevant if the report of the respondent’s expert was later tendered, which might never happen. 36    When he came to the third report, respondent’s counsel said it was “argumentative” and purported “to decide the issue of reasonableness and causation”; he objected to the whole of it or alternatively to the last five paragraphs (ie pars 4 to 8). 37 The appellant’s counsel then addressed his Honour. He based his argument for the admissibility of the reports upon s 80 of the Evidence Act. He submitted that the section had been inserted for the exact purpose of avoiding the sort of objection taken by respondent’s counsel. He then began to put arguments, which whether a listener agreed with them or not, as far as they got to, seem worthy of consideration, at least upon a reading from the printed page, as follows:

“Now the difficulty about all of these cases is that there are a mixture of factors involved. For example, first of all, there are a series of assumptions which necessarily have to be made by every expert. Those assumptions may or may not ultimately be made out, but the expression of an opinion based upon those assumptions is on the face of it admissible and it becomes a matter---”

38    However, the trial judge interrupted saying:

“HIS HONOUR: Take me to an example of a true expert opinion in this mass of paper rather than what no doubt was a very good report for the purpose of the solicitors as to how they go about preparing their case and all the possibilities and what they should set out to prove. I don’t adversely comment on the report as a report to solicitors, what I object to time and time again is that reports that are excellent for that purpose are merrily tendered as reports in legal proceedings although they are bound with findings of and relating to the ultimate issues. Even assessment of witnesses. Really and truly. Well I don’t regard section 80 as extending that far and I hold a firm view on it The trial judge never made any further statement of his firm view about s 80 beyond what appears in this and the preceding three sentences and in the passage set out in par 13 above. So far as his view can be understood from these passages it prima facie appears to be in direct contradiction with s 80 the relevant words of which are “ Evidence of an opinion is not inadmissible only because it is about (a) a fact in issue or an ultimate issue or (b) a matter of common knowledge ”. Presumably it was connected with what Levine J said in O’Brien v Gillespie.
and if anybody wants to have my view corrected by three men in another place I am only too happy for it to be done so it clarifies the situation for all trial judges, but this type of report if you look at the whole lot of it, tendered as an evidentiary document, is, with the greatest respect, nonsense.”

39    The appellant’s counsel at once protested against these statements by the judge. Rather than try to summarise and characterise the nature of what happened next, I set out what appears in the transcript immediately following the passage last set out.

“MORRISON: Well your Honour has ruled against my client without hearing my submission.
HIS HONOUR: I’m giving my indications. Keep talking.
MORRISON: Your Honour has said that this report is nonsense.
HIS HONOUR: Yes.
MORRISON: Your Honour has been critical of the witness and your Honour has effectively suggested that the report does not meet the requirements of section 80 and is inappropriate. Now your Honour hasn’t yet heard me on this matter.
HIS HONOUR: Mr Morrison don’t jump to conclusions. I have indicated to you my preliminary state of mind on glancing at these reports so you know what you’re up against. Now put your submissions.
MORRISON: I’ll put my submissions your Honour and I was doing so when your honour leapt in to express what your Honour says was a preliminary view. Can I say your Honour this is a case of great seriousness.
HIS HONOUR: Look it’s a tragic case, no risk about it.
MORRISON: When your Honour makes comments highly critical of a witness I call as an expert and highly critical of his reports before I’ve had a chance to be heard on the matter your honour can hardly be surprised when I become very concerned about your Honour’s approach to the evidence in this matter. Now your Honour didn’t express those in any sense the preliminary matter and my respectful submission did so in a way which causes great difficulty and I wish now the opportunity to take some instructions.
HIS HONOUR: Of course. Instructions to what you’re going to submit, all right. Well do you understand this Mr Morrison, I have indicated to you after hearing counsel for the defendant and having glanced through these documents my preliminary view about it, right? What can be more fair to an advocate than that. Do you want a judge to sit up here and keep his mind closed to himself?
MORRISON: I don’t ask that your Honour.
HIS HONOUR: That’s why I do it.
MORRISON: But I do ask that your Honour not say that a document which I’m going to submit is admissible and is appropriate and is relevant is nonsense and say that in conclusive terms before your Honour has heard me on the subject.
HIS HONOUR: Well perhaps I was too wide. There are passages in it—
MORRISON: What am I to do with a document your honour has decided is nonsense? Am I now to be able to persuade your Honour that this document is a valid and useful document that is to have weight with your honour. Your Honour may I have an adjournment for the purpose of taking instructions about what approach to be taking.
HIS HONOUR: Mr Morrison one of the pleasures of having senior counsel before the Court is that they are experienced counsel who no doubt can respond to situations. Let it be clear, I will give you every opportunity to put your submissions in relation to this matter.
MORRISON: Yes, I understand that your Honour. It wasn’t the lack of that opportunity that was concerning me, rather it was the expression of opinion by your honour that the document was nonsense. May I take some instructions.
HIS HONOUR: I said part of it are nonsense.
MORRISON: Well I’m sorry your honour that wasn’t what your Honour said and that’s what causes me the gravest of concern. May I take instructions at this stage your honour.
HIS HONOUR: Of course you may. How long would you like?
MORRISON: Five minutes.
HIS HONOUR: Shall I take these documents out and read them?
MORRISON: By all means your Honour.
SHORT ADJOURNMENT.”

40    After the adjournment the appellant’s counsel made application that the trial judge disqualify himself from further hearing the case, on the basis of apparent pre-judgment of issues in the case. The substance of the application was that the reasonable lay person hearing the judge’s description of the expert’s reports, at the stage when the judge made that description would be greatly concerned about whether or not the judge had formed a view from which he might not be shifted in the matter. 41    After the completion of argument from both counsel on the disqualification application, the judge said he would give his decision the next morning. In the meantime argument continued about the admissibility of the expert’s report. I will extract some passages from the transcript of this argument which are particularly helpful in understanding the way in which the trial proceeded. 42    Mr Wingrove’s first report listed in par 4 the documents reviewed for the purposes of the report. These were: copy of the notes of an interview with Constable Magee (the officer who had signed the P4 Traffic Collision Report (Exhibit 8)) dated 20 December 1994; copy of the P4 report; copy of Mr Murphy’s statement dated 1 September 1993; and copies of documents produced to the court in answer to a subpoena served on the police. 43    Paragraph 18 of the report said:

“ Constable Magee was reported to have been unable to locate any skid marks on the road surface associated with this particular accident. On the other hand, according to the statement given by Wayne Murphy, the driver of the truck on lane 2, he ‘ jumped on my brakes and locked up the tyres in order to miss the man ’. That statement, given to the police by Wayne Murphy, strongly suggested that there ought to have been some skid marks produced by his (Murphy’s) vehicle. The statement further suggested that the driver of the vehicle in lane 3, Paul Di Meglio, ought to have had his attention brought to an alert state and prepared for a possible sudden change in the immediate driving conditions at that time because of the lock-up of the brakes on the vehicle adjacent to him. ”

44    Counsel for the respondent, in addition to objecting generally to the whole of the report, had objected to the final sentence of par 18, the last paragraph in 19 and to par 25, as an alternative submission to his general submission. Counsel for the appellant, in dealing with the last sentence in par 18, said:

“ MORRISON: What is being said there by the expert is based upon his knowledge of what emergency braking does. That is, how the vehicle responds and what would emanate from it in terms of visual indications and in terms of noise. That evidence is admissible. The suggestion that it would be sufficient to direct his attention to it is a conclusion but it is the sort of conclusion which is permitted in these sorts of cases. It is not a conclusion as to the ultimate question. The ultimate question for your Honour is whether the conduct established amounts to negligence. That’s a matter on which the witness should express no opinion. The fact that a witness notices or doesn’t notice or should notice or shouldn’t notice however, is not the ultimate question. The expression of opinion here relates to his knowledge of what reaction this large truck would have given to those around it under emergency braking. That’s a matter of expertise. Not a matter which your Honour can determine. Your Honour is unlikely to—

HIS HONOUR: But where’s the expertise in it? What area? He says, the statement. Which statement’s he talking about.

MORRISON: He’s talking about the statement he’s referring to above.

HIS HONOUR: Yeah, which one? He refers to a couple, doesn’t he?

MORRISON: I assume the one which the quote comes from, ‘Jumped on my brakes and locked up the tyres in order to miss the man’. Now, it’s that emergency braking he is talking about and what he’s talking about is the way in which a truck reacts under emergency braking and what he is expressing an opinion about is ultimately that such would have been obvious to another driver. Now, that’s a matter which he’s entitled to express an opinion about.

HIS HONOUR: Well, what is it, what’s the factual situation that ought to have brought his attention? I might be able to guess at it, but let’s deal with the facts. What’s he really saying?

MORRISON: Visual signs and noise and they’re the obvious implications. It’s dealt with elsewhere in other parts of the Court (sic; possibly a mistake for report) but that’s what we’re talking about and that’s what I would be adducing some oral evidence about, admitted, because they are matters as to which he has watched trucks under this emergency braking. I don’t know if your Honour has but I haven’t.

HIS HONOUR: No, I haven’t.

MORRISON: It’s a matter about which he can give expert evidence. ”
(Paragraph 19 of the report was not pressed and did not become evidence in the case.)

45    After hearing argument on the three reports, the trial judge made his rulings. In preliminary explanation of them he said that the reports were admitted, subject to weight, and he wanted it to be understood that where the witness had expressed his views as to what either driver should have done in the circumstances, he didn’t regard that as expert evidence. He gave as an example the concluding part of par 22 of the first report:

“ then Di Meglio ought to have been alerted to expect some form of danger associated with the vehicle travelling next to his vehicle and consequently ought to have been aroused and ready for the necessity to react immediately the Plaintiff appeared from in front of the truck travelling in lane 2. ”

The judge said “That doesn’t carry any weight with me insofar as this gentleman is called as an expert witness”.

46    In the upshot, the trial judge admitted the whole of the first report with the exception of the last sentence in par 18, the whole of the second report with the exceptions of the last sentence in par 5, par 8 and par 12 and the whole of the third report with the exception of par 5. 47    Mr Wingrove was then called to give evidence. In the course of his evidence in chief, he said that when emergency braking causes “wheel lock up” and there is skidding, there is noise from the skidding and probably visible smoke from the tyres; when the truck is unladen there is a characteristic called “skip skid or wheel chatter” and that there is distinctly audible noise from the tyres. The trial judge asked him whether he had tested a Mack truck such as Mr Murphy’s for these characteristics. The witness said that the vehicle on which he had done emergency braking tests most similar to the Mack was a “Ford Louiville”, which he said was of the same category as the Mack, the similarity being equivalent to that of a Holden to a Ford Falcon. 48    The appellant’s counsel sought to ask a question which in essence dealt with the same subject as par 22 of the first report, which was whether, if the respondent had reacted slightly more quickly to the circumstances of the sliding of Mr Murphy’s truck consequent upon his locking up of the brakes, the respondent’s truck would have missed the appellant. Objection was taken to the form of the appellant’s counsel’s question and the trial judge, quite properly, sought to clarify the matter:

“ HIS HONOUR: Q. Well let’s stick to his progress. I’m looking at it from a technical view Mr Wingrove, from your point of view as you probably imagine? A. Mm.
Q. You are asked to assume that the plaintiff was passing 100 feet in front of Murphy’s truck, is that the first?
MORRISON: Commenced. Commenced his progress when he is in excess of 100 feet away.
HIS HONOUR: Leaving the curb or leaving the –
MORRISON: Leaving the footpath.
HIS HONOUR: Leaving the footpath. That’s one assumption. I presume you were asked to assume both vehicles are going about 45k’s.
MORRISON: Forty-five to 50 in accordance with Mr Murphy’s evidence.
HIS HONOUR: You are also asked to assume that the relative positions are as described namely the front of the defendant’s vehicle about in line with the rear of the Mack truck and you were asked to assume that in that position of that place there emits from the Mack truck this noise you’ve described of the skip slide and et cetera. And you were also asked to assume that the plaintiff give him his say one second reaction time observe that and react to it. Is that right?
MORRISON: Yes.
HIS HONOUR: Is that right?
MORRISON; Yes. The defendant, not the plaintiff.
HIS HONOUR: q. Now on those assumptions I think you were asked would the defendant’s vehicle and the plaintiff have come into contact with each other? A. I believe not. I believe that there would have been a retardation to the defendant’s vehicle. ”

49    The appellant’s counsel then took the matter a little further:

“ MORRISON: Let’s assume instead of coming from the footpath that the pedestrian comes from between parked vehicles in the number one lane, he’s still whatever necessary distance he has to be in front of Mr Murphy for Mr Murphy to have gone through the exercise I put to you earlier of reaction time and some degree of braking. What, if any, difference does that make, assuming the other matters remain constant to whether or not the defendant’s vehicle and the pedestrian would have come into contact? A. It makes no difference. It just means that the situation has just been moved down the road that small distance. The overall relativity of the two vehicles’ behaviour will stay the same. It’s just that it’s been moved closer to where the plaintiff crossed the road, that’s all. ”

50    The respondent’s counsel was aware of the point, crucial to the appellant’s case, to which the expert’s evidence was directed, namely, that a driver on the alert for possible trouble is likely to react more quickly than a driver not alert in that way. He sought to deflect the applicability of this point by raising with the expert witness the possibility that the respondent, in his truck close to the larger truck of Mr Murphy which occupied almost the full width of lane 2, was concerned about the specific possibility that Mr Murphy’s truck might encroach into the respondent’s lane 3 with possible danger to him from that happening. This awareness of the respondent’s counsel is apparent from the following questions and answers:

“ Q. Let me put this to you, if you’re driving beside a very large vehicle and you’re in a very small vehicle, I’m not suggesting that it’s immediately relevant to this case, I’ll come back to that in a moment but if you’re driving in a very small vehicle beside a very large vehicle and you are concerned that the vehicle may come into the lane as it were on top of you then your reaction time for that event may be right at the low end of the range mightn’t it, three quarters of a second or thereabouts would you agree?
A. I would agree to the point that you would approach that range, but there’s not too many people that get down to that three quarters of a second.
Q. Not too many people can get down to three quarters of a second indeed but if you perceive a risk and you are concentrating on that risk occurring if that risk crystallises into reality then you’re likely to be able to react to that risk more quickly than if you’re not?
A. Yes I agree with that.
Q. If you are concentrating your attention if I can call it that, if your state of alertness is directed to one particular risk and another unexpected risk occurs at the same time your reaction time in respect of the unexpected risk is likely to be longer than it otherwise would be, don’t you agree?
A. It could be.”

51    A good deal of the cross-examination was spent on the question whether there was likely to have been a noise sufficient for the respondent to hear from Mr Murphy’s truck when, as Mr Murphy said, his brakes locked, the truck slid forward, and smoke appeared. A representative illustration of the result of this cross-examination appears in the following passage:

“ MACHONACHIE: Q. What I’m putting to you is that somebody who’s been driving the very truck involved in this incident in the sense of Mr Murphy’s truck, somebody who’d been driving it for four or five years, has got far more authority to speak about its behavioural characteristics in the situation in which it was found than you do, doesn’t he?
A. Yes, except for the fact that I’ve worked far - with tyres and it is exceedingly unlikely that you could ever get a tyre to produce smoke and not make a noise from skidding.
Q. But it can happen?
A It’s like I could win the lottery too, sort of thing, those sort of odds.”

52    And again, on the theme that the expert had not direct knowledge of a Mack truck such as Mr Murphy’s:

“ Q. And can you tell his Honour the differences between a Ford Louiville suspension system in all those respects and Mack Truck suspension system? A. I can’t tell you the exact differences. They are generally the same. That’s all I was looking at. ”

53    After Mr Wingrove, other witnesses gave evidence relevant to the damage suffered by the appellant. 54    The next morning (1 April 1998) the trial judge dealt with the disqualification application made on behalf of the appellant. He said that the issue he had to determine was whether his comments in relation to the report of Mr Wingrove were such as to cause reasonable apprehension in the mind of a reasonably intelligent lay observer of an impression of bias in particular that by his words he had demonstrated or might demonstrate that he was unable to approach the assessment of the expert evidence of Mr Wingrove in a fair and even handed manner without an inclination to one side or the other. He said that he was not persuaded that what he said was likely to raise a reasonable apprehension of pre-judgment and bias and therefore dismissed the application. 55    At the end of the evidence and submissions in the case (2 April 1998) the judge reserved his decision. He delivered judgment on 15 April 1998. In his reasons for judgment he recounted the evidence in the case in an unexceptionable way. He summarised the principal conclusions and opinions of Mr Wingrove from the three reports, again in a way which does not seem to me to call for criticism, and which was not criticised. In this summary he quoted from Mr Wingrove’s first report, inter alia, the following:

“ The driver of the vehicle that collided with the plaintiff ought to have been brought to a state of awareness of some form of impending danger had the vehicle in the traffic lane next to his vehicle applied the brakes to the level that the brakes would have caused the wheels to lock up. ”

56    The trial judge then summarised the effect of Mr Wingrove’s oral evidence. He attached some importance to the fact that Mr Wingrove had acknowledged that at the time of writing his first report he knew very little about the Mack truck. He noted Mr Wingrove’s assertion that the details which he did not then know would not have an effect on his calculations and that Mr Wingrove had added that if memory served him correctly he had been told that the defendant’s truck did not brake. The judge said that of this there was of course no evidence. He had earlier set out the respondent’s statement, which I also have set out above, in which the respondent had said that when he first saw the appellant “he was in front of my truck about one metre away. I hit the brakes, and the front of my truck hit the man”. Mr Wingrove had made it plain in his evidence that in his view, based on that statement by the respondent, there could have been no time for the respondent’s hitting the brakes to have had any effect on the speed of his truck. 57    The judge recorded Mr Wingrove’s evidence that it would be most unusual for a tipper truck, unladen, to lock the wheels up and not emit noise from the vibrations. He also recorded that Mr Wingrove agreed that a person driving a particular truck for four or five years would be able to speak far more authoritatively on how that truck behaved than someone who had never seen it. He also recorded that Mr Wingrove “continued to assert” that it was exceedingly unlikely that you could ever get a tyre to produce smoke and not make a noise from skidding. 58    The trial judge then turned to the evidence of Mr Murphy, who he said appeared truthful and reliable. The judge said that he thought his estimates of time and distance were perhaps shorter than what really happened (Mr Wingrove had demonstrated that this must be so) but that he had no reason to doubt Mr Murphy’s general reliability and credibility. He said he was satisfied that the appellant had run onto the roadway and crossed quite close in front of Mr Murphy’s vehicle, that Mr Murphy did brake his vehicle as soon as he could and that was at about the time the plaintiff was running across the front of his vehicle. I do not understand that there was any contest about this view of Mr Murphy’s evidence. 59    The trial judge then said he had considerable reservations about Mr Wingrove’s expert evidence and asked why it should be preferred to the sworn evidence of Mr Murphy. He then gave reasons why he answered his question in favour of preferring Mr Murphy’s evidence. 60    The first reason was that Mr Wingrove had wrongly assumed the role of the advocate. The judge said this was apparent from his prevarication in relation to the speed at which the appellant might have been walking and his construction of the respondent’s statement from which he drew the conclusion the respondent did not brake before the impact. My reading of the evidence did not leave me with the impression of prevarication; rather the witness was trying to explain why he drew a particular inference which the judge chose not to agree with. As to the judge’s remark about wrongful assumption of the advocate’s role, I would add to what I have said earlier, that it makes two separate criticisms: one, that the expert is arguing, in the way already discussed, the other that the expert is stating opinions not genuinely held. In the first case the duty of the court is to consider what substance the argument may have. In the latter case, the court is entitled to give little or no weight to the opinion, as the other circumstances of the case may indicate, but I do not understand the trial judge here to have concluded the witness was not genuinely of the view he was expressing. 61    The next reason given by the trial judge for preferring Mr Murphy’s evidence was that Mr Wingrove’s opinions were based on assumptions for which there was no evidence in support. The first of these was Mr Wingrove’s statement in par 18 of his first report that Constable Magee was reported to have been unable to locate any skid marks. The judge fairly remarked that that may have been true, but added that there was no evidence of it. The judge was right in saying this also. The criticism however seems to me to have been rather pointless in the circumstances of the case. Mr Wingrove had listed in par 4 of his first report the documents available to him before he made it. These included a copy of the notes of an interview with Constable Magee dated 20 December 1994. Mr Wingrove was not to know at the time when he made his report that those notes would not become evidence in the hearing. The absence of the notes provides a good reason for rejecting any opinions that depended solely on Constable Magee’s reported inability to locate any skid marks. It does not seem to me to be a basis for criticising Mr Wingrove’s approach to his giving of evidence. Mr Murphy himself said that the brakes locked and his fourteen tonne truck slid. That is, it was an uncontested fact at the hearing that the truck had skidded. 62    The trial judge said that another assumption for which there was no support was Mr Wingrove’s statement that:

“Had the driver of the vehicle that collided with the plaintiff had a distance in the order of 20 metres between his vehicle and the pedestrian that crossed the roadway in front of his vehicle and had the vehicle that he was driving been travelling at a speed of 40km per hour then the driver had sufficient distance to stop without incident had the driver been paying attention to the surrounding traffic and keeping a proper lookout in these circumstances. ”

63    It is not clear to me why the foregoing statement is a matter for criticism. The speed of 40 km per hour was one given by the respondent in his statement to the police. Mr Wingrove’s opinion was that for the appellant to have run across in front of Mr Murphy’s truck and for Mr Murphy to have been able to brake and miss him by three feet when, at the time Mr Murphy first saw the appellant Mr Murphy’s truck was travelling at 40 to 50 kph, Mr Murphy’s truck must have been considerably further back from the point it reached at the time it missed the respondent by three feet than Mr Murphy remembered in his evidence. This is an inevitable conclusion once it is accepted, as the trial judge accepted, that Mr Murphy’s truck was travelling at the speed he stated in evidence at the time when he first saw the appellant. The trial judge saw that this must be so when he said that he thought that Mr Murphy’s “estimates of time and distance are perhaps shorter than what really happened”, but he does not appear to have thought it necessary to examine the possibilities opened up by this obvious truth, (that is, obvious truth once 40 kph was accepted.) Mr Wingrove’s oral evidence was to the effect in various places that Mr Murphy’s truck must have been at least twenty metres away from the line made by the appellant as he crossed the road when he first saw him. If that opinion, which was a matter of calculation based on facts open to the judge to find, was approximately correct, then the respondent’s truck must have been at least the same distance away from the point where it struck the appellant. 64    The final part of the “assumption” criticised by the trial judge seems to me to have been the statement of an opinion well within the competence of Mr Wingrove if the facts upon which he was relying in the earlier part of the “assumption” were accepted. I do not see that the putting forward by Mr Wingrove of this opinion contributes to his characterisation as someone wrongly assuming the role of advocate. 65    The trial judge then said that in addition to the undisputed facts in the case he made the following findings of fact:

“(1) That the defendant was travelling at about 40-50km per hour shortly before the accident occurred.
(2) That at that time the front of the defendant’s truck was approximately abreast of the rear of the Mack truck.
(3) That the plaintiff did not see the defendant’s motor vehicle and the defendant did not see the plaintiff until very shortly before the collision occurred.
(4) The reason for such failure was the fact that the view of each of the other was completely obscured by the Mack truck until the plaintiff had run across the path of the Mack truck.
(5) I accept as fact the matters set out in the defendant’s statement, Exhibit 9.
(6) I also accept as a reasonably accurate summary of the facts, from the viewpoint of Mr Murphy, that which is stated in his statement to the police officer, Exhibit 2.
(7) I find that the evidence does not support any adverse finding against the defendant as to speed or lookout.”

66    Number (7) in the additional findings of fact seems to me to be a finding which if sound, would be decisive in the respondent’s favour, since the principal argument for the appellant relied upon a form of failure to keep a proper lookout, that is, in terms of the case, failure to react to the unusual behaviour of Mr Murphy’s truck just in front of the respondent. There was no clear reasoning, to this point in the trial judge’s reasons, explaining why he reached the conclusion in additional finding No (7). Presumably it was to show why he reached that conclusion that he continued, immediately after making the seven additional findings, by saying:

“I return to the critical factual issues namely -
Did there emanate from Mr Murphy’s truck, before the collision occurred, an audible noise such as would have been heard by the defendant and one which ought to have alerted him to the emergency created by the plaintiff running across the road in time for the defendant to brake and avoid the plaintiff?
The resolution of these issues depends principally on my assessment of the direct evidence of Mr Murphy and the expert evidence of Mr Wingrove, to the contrary. Generally speaking, I accept Mr Murphy as a truthful and reliable witness. No reason has emerged to suggest he is inclined to favour the plaintiff or the defendant. I take into account that it is likely that his estimates as to time and distance are not completely accurate and that his, more or less, contemporary statement as to the plaintiff running from the footpath is to be preferred to his sworn evidence almost 5 years later. However in my opinion such qualification is of little substance in assessing the reliability of his evidence as to whether there emanated from his vehicle, when he braked, the sort of noise to which Mr Wingrove refers. I bear in mind he was an experienced truck driver, familiar with the truck he was driving. On the other hand Mr Wingrove’s opinion as to the wheel chatter and other noise is based on his experience of testing other vehicles, albeit many other vehicles over many years. However he has not tested the reaction of this particular vehicle in such circumstances as existed on Botany Road on that day.
I am unable to prefer the evidence of Mr Wingrove on this critical issue.”

67    Consequentially upon the reasoning in the passage just set out, the trial judge found a verdict for the respondent. 68    In the critical passage the trial judge appears to have directed himself to the issue which he saw as joined between Mr Murphy and Mr Wingrove, did Mr Murphy’s truck make significant noise when it skidded. There are two aspects of this approach by the trial judge with which I respectfully disagree. First, to reject Mr Wingrove’s opinion that there must have been some significant noise in the circumstances on the basis that he had not tested either the particular truck or a truck of that manufacture, seems to me to be open to question. Mr Wingrove’s experience over many years included experience with trucks having substantially similar characteristics to Mr Murphy’s truck. Ordinarily I would not pay much attention to a point of this kind in an area where a trial judge has wide powers and duties in regard to assessment of witnesses who give different evidence on an issue. However, in the present case the seizing upon what appears to me, with respect, to be rather a weak point to justify non acceptance of an expert’s opinion (which opinion also seemed to accord with ordinary experience) rather supports the view that the trial judge was casting around for reasons to justify disregarding the opinions of an expert which he had earlier described as nonsense. 69    The other (and more important) aspect of the critical passage which seems to me to be faulty is that the trial judge dealt only with the noise ingredient of the behaviour of Mr Murphy’s truck after Mr Murphy “jumped on” his brakes. He did not deal with the full substance of the submission, which was that Mr Murphy’s truck suddenly locked its brakes and skidded as it lost speed, causing smoke (according to Mr Murphy) and noise (denied by Mr Murphy but asserted as an opinion by Mr Wingrove). Accepting Mr Murphy’s evidence about noise, the trial judge nevertheless still had to consider the other aspects of the truck’s behaviour, about which there had been no contest before him. He did not do so and thus failed to deal with what was really the principal point of the appellant’s (difficult) case. 70    If the appellant had been arguing that there should be a new trial because of the trial judge’s failure to deal with a critical part of the appellant’s case, I may have been disposed to uphold the appeal on that frequent and straightforward ground of appeal. However, no such ground was relied on. Counsel for the respondent therefore had no need to deal with a new trial argument in that form. It is conceivable he may have advanced a further or different argument in answer to such a ground, which this court has had no occasion to consider. In any event, this court cannot deal with the appeal on that basis. The only ground of appeal the court is concerned with is the ostensible bias point relied on by the appellant. 71    The ruling authority that states the test for deciding whether a judge’s actions support an assertion of ostensible bias is Webb v The Queen; Hay v The Queen (1994) 181 CLR 41. In that case, in a joint opinion, Mason CJ and McHugh J adopted the test which they said had been used many times in the High Court namely “whether fair minded people might reasonably apprehend or suspect that the judge had prejudged or might prejudge the case” (at 47). They said the court had specifically rejected the real likelihood of bias test, and that the principle behind the test consistently adopted by the High Court was the “fundamental importance that justice not only be done but should manifestly and undoubtedly be seen to be done”(also at 47). Citing R v Sussex Justices [1924] 1 KB 256 at 259; Re JRL (1986) 161 CLR at 351-2.
72    Later they said:

“... In considering whether an allegation of bias on the part of a judge has been made out, the public perception of the judiciary is not advanced by attributing to a fair minded member of the public a knowledge of the law and the judicial process which ordinary experience suggests is not the case. That does not mean that the trial judge’s opinions and findings are irrelevant. A fair-minded and informed observer would place great weight on the judge’s view of the facts. Indeed, in many cases the fair minded observer would be bound to evaluate the incident in terms of the judge’s findings. ” (at 52)

73    Brennan J agreed with the upholding by Mason CJ and McHugh J of the reasonable apprehension test in contrast to the real likelihood of bias test (at 57). 74    Deane J was of the same view. He said that the preferred test:

“... directly reflects its rationale, namely, that it is of fundamental importance that the parties to litigation and the general public have full confidence in the integrity, including the impartiality, of those entrusted with the administration of justice. ” (at 68)

75    Toohey J was also of the same opinion although he thought there might “be in truth little difference in the application of the two tests” (at 88). 76    The fact that difficulties sometimes arise in the application of the test is shown by the fact that in Webb although all the judges were in substantial agreement on the proper test to be applied, they were divided as to the result, Mason CJ, McHugh J and Toohey J concluding that the appeals should be dismissed, Brennan J and Deane J each being of the view they should be upheld. 77    Before coming to apply the test to the circumstances of the present case, I think it necessary to point out that although the term “bias” is used both in the actual bias doctrine and in the “reasonable apprehension of bias” doctrine, the two doctrines have quite distinct bases. A judge is disqualified because of actual bias whether or not it is apparent at the time. Court proceedings conducted with every appearance of fairness and propriety may nevertheless result in a judgment which will be set aside upon later discovery of actual bias on the part of the judge, even if the judgment be otherwise legally correct. Reasonable apprehension of bias on the other hand is concerned with the appearance of the litigation in court as the proceedings move towards judgment. 78    Reasonable apprehension of bias may arise in different ways. Incidents may occur in the course of the proceedings which create such an apprehension of bias as will be incurable notwithstanding subsequent irreproachable behaviour on the part of the judge. Sometimes light will be cast on happenings in the course of proceedings, not of such a clear cut character, but causing the beginning of apprehension, by the opinions and findings stated in the judge’s reasons for judgment. The light cast may lead to the extinction or confirmation of the earlier inchoate apprehension. This is made clear in the statement by Mason CJ and McHugh J in Webb that in many cases the fair minded observer would be bound to evaluate the incident in terms of the judge’s findings. 79    When a court must consider therefore whether a claim of reasonable apprehension of bias is made out on appeal by a losing party, the question is not one of fact as it is in an actual bias case (where the question is was there bias in fact) but one of evaluation which can in cases such as the present be described without use of the word bias at all, as being an evaluation the court must make of whether a fair minded observer, seeing the incidents complained of and evaluating them in terms of the judge’s findings, would be of the view that it was manifest that justice had been done. 80    In an effort to carry out the required evaluation, I have set out the materials in the present case which I think “a fair minded member of the public”, not having a greater knowledge of the law and the judicial process than ordinary experience suggests, would have taken into consideration after watching the trial and reading the trial judge’s reasons. Although through my own eyes I see a well respected trial judge of long experience, the fair minded observer as described by Mason CJ and McHugh J would see him without my knowledge. I assume that that observer would enter the court room, knowing nothing of the judge, expecting to see fairness and impartiality, and would form a judgment primarily on what he or she saw and heard in the court room and read in the judge’s reasons. 81 Trying to look at the matter in this way, I have come to the conclusion that a fair minded observer reacting reasonably would in the end have apprehended or suspected that the judge’s views about expert witnesses predisposed him to the rejection of the material part of Mr Wingrove’s opinions and that as a result neither those opinions, nor the reasoning process which was at the heart of them for the purposes of the case, were given the impartial consideration that was needed if justice was not only to be done but also manifestly and undoubtedly was to be seen to be done. In my opinion therefore the verdict and judgment in favour of the respondent should be set aside and a new trial should be ordered. 82 A second ground of appeal was relied upon by the appellant, although his counsel said it was less important than the first. This concerned the trial judge’s statement that he held a firm view about s 80 of the Evidence Act. It was submitted that this view of the trial judge was wrong. 83 There are two difficulties in dealing with this point. One is that (so far as I can see) it never became clear precisely what the judge’s view was, beyond, perhaps, that it was similar to that of Levine J in O’Brien v Gillespie. The other is that very little of the three reports of Mr Wingrove was, in the event, ruled to be inadmissible. The subject matter of the paragraphs excluded by the trial judge in fact came to be fairly fully discussed in the oral evidence of Mr Wingrove in any event. That is, the evidence in the end was not excluded. To the extent that the judge’s view of s 80 affected the trial, it affected the way he approached the weight to be given to Mr Wingrove’s opinions. 84 As to the judge’s approach to s 80, if he was intending to indicate agreement with what was said by Levine J in O’Brien v Gillespie I would make the following comment. That case was concerned with evidence given by a solicitor purporting to express opinions about whether what had been done by another solicitor amounted to professional negligence. So far as concerned s 80, Levine J appears to have adopted what was said by Lindgren J in All State Life Insurance Co v Australia & New Zealand Banking Group Ltd (1996) 137 ALR 138, another case dealing with the tender of expert evidence by a lawyer on a legal question. The part of Lindgren J’s opinion in that case relevant for present purposes was his view that:

“... reference to the legislative background shows that the reference in s 80(a) to the ‘ ultimate issue ’ was intended to refer to opinion by non-legal expert witnesses or non-expert witnesses on an ultimate issue of fact expressed in language which applies a legal standard. ”

85 Thus neither Levine J nor Lindgren J was dealing with the application of s 80 to expert opinions of non-lawyers. If the trial judge was relying on the views of Levine J and Lindgren J, then he was relying on opinions not applicable to the case before him. Further, he may have been overlooking s 80(b), (for which see n 3 above). 86 However, I do not think I should say any more than this about the s 80 point in the present case. It was not fully argued, and it is not necessary to express a considered view on it. 87 In my opinion the appeal should be upheld, the verdict and judgment below set aside, a new trial ordered, the costs of the first trial to abide the decision of the judge who hears the second trial and the costs of the appeal to be borne by the respondent. 88 MEAGHER JA: I have read Priestley JA’s judgment in draft. I disagree with it. It seems to be plainly wrong to say, in the circumstances of the case and on the authorities as they stand, both of which are adequately summarized by Priestley JA, that a reasonable lay observer would have thought Sinclair DCJ’s behaviour tainted by bias. 89    Certainly Sinclair DCJ made it plain, in fairly unambiguous terms, that he took an initial dislike to the sort of evidence Mr Wingrove was giving. But the reasonable lay observer would also have noted that his Honour’s initial dislike was treated by his Honour as no more than a passing reaction. His Honour did not reject Mr Wingrove’s evidence, but admitted almost all of it; his Honour invited, and received, debate on the value of that evidence. 90    The lay observer would note, of course, that his Honour, in finding for the defendant, made some remarks adverse to Mr Wingrove. However, he would also have noted that they were reasoned and not intuitive; that they proceeded from his Honour’s evaluation of the evidence; and that that evaluation was not merely a thoughtless expression of some pre-conceived view. 91    Moreover, the reasonable lay observer would note how sensible his Honour’s reasoning was. The main point at issue between the parties was whether Mr Murphy’s truck made a noise when it braked; Mr Murphy, who had owned and operated the truck for about seven years, said it did not; his Honour accepted that evidence; Mr Wingrove, who had never seen, much less operated, Mr Murphy’s truck, said it would have. The lay observer would have thought it wise for his Honour to prefer actuality to theory. He would also have wondered why his Honour was hearing the case unless it was to prefer one witness over another. Finally he would have noticed that his Honour’s judgment was founded on demeanour: his Honour found that Mr Wingrove “prevaricated” in giving evidence about the speed at which the plaintiff was walking; and if he had heard Mr Wingrove giving that evidence he would have agreed with his Honour. 92    I would dismiss the appeal with costs.

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