Boyd v Elliott

[1992] HCATrans 40

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S94 of 1992

B e t w e e n -

PETER JOHN BOYD

Applicant

and

OLGA ELLIOTT

Respondent

Application for special leave

to appeal

MASON CJ
TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 FEBRUARY 1992, AT 2.08 PM

Copyright in the High Court of Australia

Boyd 1 12/2/93

MR C.T. BARRY~ :  May it please the Court, I appear with

my learned	friend, MR M.L. BRABAZON, for the
applicant.	(instructed by Cunningham Adam &
Vitnell)

MR D.F. ROFE, OC: If Your Honours please, I appear with my

learned friend, MR R.C. TONNER, for the respondent.

(instructed by the Solicitor for the Government

Insurance Office.

MASON CJ:	Mr Barry?
MR BARRY:	May I tell Your Honours what it is submitted is

the special leave point in this matter and then seek to demonstrate the way in which it arises. Your Honours are familiar with the factual material

that the proceedings depended upon?

MASON CJ: Yes.

MR BARRY:  The submission is that there is a distinction

between the approach that a Court of Appeal ought

to take to a trial judge's findings on questions of

primary fact, that is, whether or not, in this

case, the pedestrian was on the gravel or on the

whether or not the conclusion to which the primary

road when struck, and the approach that a Court of

judge came, that is, that there was nothing that

the motorist could have done in the circumstances

or that there was no breach of duty, is different.

The applicant's point, shortly put, is that

the Court of Appeal took the view that, when

dealing with the second point or the second aspect

of the matter that was before them, they were bound

by the same principles and the same rules as

applied when they were dealing with the first,

following Abalos, Dawson v Westpac and the other

cases where those principles are well settled.

What the applicant submits is that there is a

different set of principles and in confining the

appellate process in that way, Their Honours fell

into an error of principle which warrants the grant

of special leave.

Might I indicate, Your Honours, or seek to

demonstrate the way that arises? The trial judge -

if I could take Your Honours to page 8, line 20 of

the application book - from 20 to 25 made a

finding:

On the probabilities, I consider the plaintiff

was well affected by alcohol, was walking on

the grass at the time seen by the defendant,

Boyd 2 12/2/93

and lurched quite suddenly out on to the side
of her car. Had the accident not happened

very quickly, I feel sure that the witness

Baker would have observed more than he did of

the plaintiff.

His Honour then went on, at page 10, lines 6

to 15, to make the critical findings which led him

to the conclusion he reached on liability:

However, I do not find that on the facts. I

find on the facts that the plaintiff was well
affected by alcohol, was proceeding on the
grass at the relevant time and stumbled
quickly across the balance of the grass and

the gravel and out on to the bitumen to

collide with the side of the vehicle of the

defendant.

In my opinion, the plaintiff has not

succeeded in establishing, on the

probabilities, the negligence of the

defendant. In my opinion, there was nothing
the defendant could do in practical terms, to
avoid the accident and I consider it occurred

wholly as a result of the actions of the

plaintiff.

Your Honours will see in that there are in those

findings, findings of primary facts and findings of

secondary facts, that is, conclusions or inferences

of fact which are drawn from the first.

The findings were, of course, based upon the

acceptance by the trial judge of certain witnesses

and the rejection of one version given by the

plaintiff, that is, he was struck on the gravel

shoulder of the road.

The complaint of the appellant in the Court of

Appeal, as he then was, was that the secondary

facts or conclusions were not justified or

warranted by the primary findings that were made on

the way in which the accident occurred. To

demonstrate what the central argument was in the

Court of Appeal, could I take Your Honours to a

short portion of the evidence, produced in the

application book at page 53, as an annexure to

Mr Vitnell's affidavit, is some of the transcript.

At page 53, line 5, Mr Baker, who the trial judge

accepted as a witness of truth, positioned the
defendant's motor vehicle 300 to 600 millimetres on

the bitumen as they were travelling along the road.

About line 27, in answer to a question from the

trial judge, the witness said:

Boyd 12/2/93

The area where pedestrians walk. There was no

made path, it is just the area between the

street and the fences.

At the bottom of the page that is clarified:

The verge is the unsealed section of road

between the bitumen and edge of the road.	It
is the place where cars park if they are off the road.

On the next page there are the answers that were

given by the defendant when cross-examined as to

matters which I have referred to as matters of

primary fact. At page 54, lines 1 to 6,

Your Honours will see that she agreed with the

proposition that the width of the gravel shoulder

on the side of the road was six feet wide; the

nature strip that was next to that upon which the

applicant had been walking was two feet wide, and

that there was some other distance - and you will

see that she agreed with the proposition at line 6,

that there was approximately 15 feet in distance

between the position where she observed the

applicant when she first saw him and when she hit

him on the roadway.

Your Honours will see that at line 20, when

pressed, this was her answer:

I cannot remember, I was too busy putting on

my brakes when he hit my car. It was only

half a second by the time he left the nature

strip and fell over my car, he just stumbled

very quickly.

He travelled a distance of approximately

15 feet?---I would not say it was 15 feet or

not.

You said a moment ago it was?---Approximately.

He travelled approximately 15 feet before he

hit the car, that is right?---Approximately,

yes.

And at the bottom, about line 36, she repeats, as

she did, on a number of occasions:

Oh yes he could, you did not see him stumbling

along reeling along.

I should interpose that there was no doubt that she

was aware of his condition and observed him, she

said, 200 yards away, but that estimate of distance

the trial judge had some doubt with. But plainly

Boyd 4 12/2/93

enough, she was aware of his presence and his

condition.

The point that was taken on appeal was that if

one looks at the content of her evidence, it is

inconceivable that the man could have, in the state

that he was, stumbled or staggered or however one

wants to put it, a distance of 15 feet in the
matter of half a second and that the finding that
the trial judge made that there was no breach of
duty because the events occurred so suddenly, was a

finding based upon inference or conclusion and

therefore in a different category than findings

such as the acceptance that the accident occurred

while the pedestrian was on the roadway and not on

the gravel shoulder.

TOOHEY J:  You take the distance of 15 feet, Mr Barry, which

seems to have crept in, and the defendant then,

cross-examined on that basis, although her answers

simply say, "Well, approximately 15 feet", but

where does the figure come from?

MR BARRY:  The nature of the roadway was that, if one takes

Mr Baker's evidence, accepted by His Honour, the

vehicle was two feet on to the bitumen as he

followed the defendant's vehicle, one adds that to

the estimate of six or so feet, that is, the gravel

shoulder, then one adds to that the further

distance estimated at two feet or so on the grass

verge, as it was described, and adds to that the
proposition that the applicant was walking towards
the motorist, that is, in the opposite direction,

then he did travel, it would seem, a distance of

approximately 15 feet in the time between when he

diverged from his path on the grass verge and came

on to the roadway and was struck.

TOOHEY J: Yes, but if it was a few feet less it is perhaps

not hard to understand how he did move quickly into
the path of the vehicle.	I mean, this sort of

cross-examination is entirely legitimate but there

is a bit of unreality about it.

MR BARRY:  With respect, Your Honour, there is not when what

is sought to be established is that her being aware

of his condition, had she kept a proper lookout for

the person whom she was aware, then the manoeuvre

would not have occurred where he crossed, changed

direction, crossed the section of the grass verge,

gravel shoulder and then on to the roadway. What

the cross-examiner was seeking to establish was
that either she was being untruthful in her version

or that she had failed to keep a proper lookout in

the circumstances for a man that she knew was

likely or could engage in that sort of conduct.

Boyd	12/2/93
McHUGH J:	You see, the trial judge, at page 8, at line 12,

thought:

everything happened much faster than -

the description of the defendant. It is clear that

His Honour was not accepting her evidence

precisely.

MR BARRY:  With respect, Your Honour, it would be difficult

to see, bearing in mind her evidence was that the nature of the activity occurred in half a second,

how it could have happened much slower than common

sense or in any different way than the ordinary

spectacle of somebody in that condition stumbling

or staggering along the road.

McHUGH J: Yes, I know, but this Court said long ago in

Williams v Smith that a jury is not bound to accept

either party's case in its entirety but can work

out its own version of the facts which may be

somewhere in between both party's case and this

seems to be that sort of case. The trial judge has

taken the view that there was a quite sudden lurch

out on to the side of a car. He saw the witnesses.

What is wrong with that approach?

MR BARRY: This, Your Honour, that in the case of the

process of reviewing a judge's findings of fact,

the nature of that procedure necessarily involves

an examination of the judge's reasoning. In the

case of juries, it is different. The case of a

judge: one of the things it is submitted the Court

of Appeal must do is contrast the ultimate findings

- second facts - with the primary facts, that is,

the questions of fact accepted by the judge. The

process is a different one from the process that

would be adopted in a case of an appeal from a

jury.

McHUGH J: That does not mean that the trial judge is bound

to act on one party's case or the other. Here, the

trial judge obviously took the view that the

defendant's description of the accident was

somewhat more dramatic than was the case and he

obviously thought the distance was a bit shorter.

I mean, if the plaintiff had moved 15 feet, you would wonder how the accident happened at all.

MR BARRY:	The plaintiff's case was it happened because the defendant was failing to keep a proper look-out for
a man that she knew was in a condition where there was, at least, a possibility - if not a
likelihood - that he would engage in that type of
behaviour.

Boyd 6 12/2/93

TOOHEY J: But she stopped quite shortly after the accident,

did she not?

MR BARRY:  That is so. The point on liability was that she

stopped within a few feet after the accident so

that had she been keeping a proper look-out and had

she been observing him as she should have, knowing

his condition, then she would have been able to

stop without the collision occurring. That was the

point on liability that was sought to be argued but

the argument did not get to that stage because the

Court of Appeal took the view that because the

trial judge had made findings on what I have

described as that secondary matter of fact, that

is, acceptance of her, that that put an end to that

process of inquiry and they need go no further.

Can I seek to demonstrate, Your Honours, from

the judgment of the Court of Appeal how I submit

Their Honours did that. The leading judgment was

the judgment of the President with whom

Mr Justice Hope agreed, although I should add that

Mr Justice Priestley delivered a judgment disposing

of the appeal on a slightly different basis, and

Mr Justice Hope agreed with both of them.

At page 29, Mr Justice Kirby, at about

line 16, said this:

The central question was whether the appellant

had moved suddenly into the path of her

vehicle. In such a circumstance to avoid

collision the sounding of a horn would not

have been useful. Unless the appellant could

disturb Newton DCJ's conclusion as to how the

collision actually occurred, this Court could

not disturb the determination of negligence

which followed.

Again, that is the point that, in my submission,

the case raises. His Honour goes on:

That conclusion rested upon what the

respondent herself said. This Court is not

authorized to disturb the conclusion which the

primary judge reached based, in part at least,

upon the advantage which he had at the trial

of seeing the respondent give her evidence.

The submission is that the President in that

passage fettered the approach to the matter by

applying a test which was not authorized.

At page 30, lines 29 to 32, the President says

this:

Boyd 7 12/2/93

Newton DCJ came to the conclusion that this

pedestrian, who was walking on the side of the

road, moved suddenly into the trajectory of

the respondent's moving motor vehicle.

That was the principal finding that was challenged.

And then His Honour went on over the page.

McHUGH J: This is page 33, is it?

MR BARRY:  Page 33, line 15. He said:

To succeed, the appellant must undermine the

decision of Newton DCJ which rested,

ultimately, on his Honour's acceptance of the

evidence of the respondent.

What the applicant submits is that in adopting that
approach, what the Court of Appeal did was they
took the view that the conclusions or findings on

liability, the secondary facts, as I have described

them, were matters that ought to be disposed of on

the same basis as the primary facts. What the

applicant's submission is that that process

prevented the Court of Appeal from looking at the

case or examining the material in such a way as to

identify whether or not, under the scrutiny of the various answers in cross-examination, that was the

correct conclusion to which the court should have

come in disposing of the appeal.

Now, as I have indicated to Your Honours

before, Mr Justice Hope, at page 37, indicated his

agreement with what the President of the Court of

Appeal had said. He also indicated that he agreed

with Mr Justice Priestley, as is apparent from

page 37, between lines 8 and 11.

Mr Justice Priestley disposed of the appeal upon a

different basis. Mr Justice Priestley disposed of

the appeal upon the basis that he found that the

trial judge, as His Honour put it, came to a:

further conclusion, which essentially involved
the idea that the defendant could not
reasonably be expected to have anticipated

what the plaintiff did -

Your Honours, that was not the basis upon which the

trial judge approached the matter. He did not

approach it on the basis of there being no breach

because no anticipation. He based it upon

acceptance of what is no more than an opinion
statement or an exculpatory statement by the

defendant, named the defence happened so quickly

that she could not avoid a collision with him. So,

the process, to that extent - although it is a

secondary matter - has miscarried as well because

Boyd 12/2/93

one has the President deciding the appeal on one

basis, Mr Justice Priestley deciding it on another

and Mr Justice Hope agreeing with the both of them.

Your Honours, that is the point which the

applicant submits would warrant the grant of

special leave and the way in which it arises.

MASON CJ:  The Court need not trouble you, Mr Rofe.

The Court is not persuaded that the decision of the Court of Appeal is attended with sufficient

doubt to justify the grant of special leave to

appeal. The application is therefore refused.

MR ROFE:	Your Honour, we seek an order for costs.
MASON CJ:	You do not oppose an order for costs, Mr Barry?
MR BARRY:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 2.29 PM THE MATTER WAS ADJOURNED SINE DIE

Boyd 9 12/2/93