Hutchinson v Van Den Berg - [2024] SASCA 117

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
HUTCHINSON v VAN DEN BERG
[2024] SASCA 117
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice S Doyle)
3 October 2024
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - FINDINGS ON ISSUE OF NEGLIGENCE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES
The appellant sustained injuries after being struck by the vehicle of the respondent, his estranged wife, in the context of an altercation occurring on the driveway of their formal matrimonial home. The appellant brought a claim for negligence, alleging the respondent intentionally collided with him.
The trial judge found that the respondent was acting in a state of fear caused by the appellant’s aggressive behaviour. The trial judge dismissed the claim, finding that the respondent did not owe the appellant a duty of care, or in the alternative, the circumstances were such that no breach of duty was made out.
On appeal, the appellant submitted that the trial judge erred in her approach to fact-finding, and in her approach to both duty of care and breach of duty of care.
Held, allowing the appeal, setting aside the judgment and remitting the matter for trial:
1.The trial judge erred in failing to properly consider all the evidence before making findings in relation to the credibility and reliability of the witnesses.
2.The trial judge erred in only considering the objective physical evidence left at the scene of the incident when assessing the expert accident reconstruction evidence.
3.The trial judge failed to give adequate reasons for her conclusions.
4.It is unnecessary to consider the question of duty of care and breach of duty given that the matter is to be retried.

Admiral International Pty Ltd v Insurance Australia Ltd [2022] NSWCA 277; AK v Western Australia (2008) 232 CLR 438; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 70 FLR 447; Alubaid v Kilani (2022) 100 MVR 282; Browne v Dunn (1893) 6 R 67 HL; Burke v Corruption and Crime Commission (2012) 289 ALR 150; Camden v McKenzie [2008] 1 Qd R 39; Cubillo v Commonwealth (No 2) (2000) 103 FCR 1; Devries v Australian National Railways Commission (1993) 177 CLR 472; DL v The Queen (2018) 266 CLR 1; Fox v Percy (2003) 214 CLR 118; Gamaethige v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 424; Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; Hutchinson v Van Den Berg [2022] SASC 90; Kazal v Thunder Studios Inc [2023] FCAFC 174; Macks v Viscariello (2017) 130 SASR 1; Mt Pleasant Stud Farm Pty Ltd v McCormick [2022] NSWCA 191; Murphy (a pseudonym) v The King

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] SASCA 117
Decision Date: 3 October 2024

CaseChat Overview and Summary

This matter concerned an appeal from a decision of a trial judge. The appellant, Hutchinson, challenged findings of fact made by the trial judge regarding negligence. The dispute arose from events that occurred on 18 April 2014, involving the appellant and another individual, Jamie.

The primary legal issues before the appellate court were whether the trial judge had erred in her findings of fact, particularly concerning the reliability and credibility of witnesses, and whether she had adequately considered all the evidence, including objective physical evidence, when reaching her conclusions. The appeal also raised the question of whether the trial judge’s reasons for her findings were sufficient to justify the verdict.

The appellate court found that the trial judge had erred in her approach to fact-finding. Her Honour had assessed the credibility of witnesses in isolation, without sufficiently weighing the consistency of their evidence or considering the objective physical evidence, such as tyre marks and broken glass. This fragmented approach meant that potentially supportive evidence from multiple witnesses was not given sufficient weight, and the physical evidence was not properly integrated into the assessment of witness reliability. The court noted that a failure to give adequate reasons constitutes an error of law.

The appeal was allowed on the basis that the trial judge had failed to provide adequate reasons for her findings of fact, which involved an error of law. The court concluded that there had been a substantial miscarriage of justice.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

That the evidence from multiple witnesses was consistent was a matter the trial Judge needed to consider during the fact-finding process, particularly given that there was no suggestion of concoction. The trial Judge’s fragmented approach of determining credit in advance of, and to the apparent exclusion of, weighing all the evidence, resulted in insufficient weight being attached to the potentially supportive effect of the evidence of each of these witnesses. The objective/physical evidence The trial Judge also failed to consider the objective physical evidence before concluding that the appellant and his witnesses were unreliable and lacked credit. She only considered this evidence when assessing the expert evidence. The physical evidence before the trial Judge comprised photographs of the scene depicting tyre marks on the grass verge, tyre marks on the concrete driveway (“the skid mark”), and photographs of pieces of broken glass located adjacent to the driveway. It was common ground that the larger pieces of glass located to the west of the driveway came from the driver’s side window that Jamie had dropped or threw after removing it. It was also agreed that the skid mark was made by right front wheel of the vehicle. The distance from the beginning of the skid mark to where the pieces of glass were located was important. Senior Constable Castle prepared a plan of the scene (not to scale) and this was tendered by agreement.[21] Senior Constable Castle took several measurements in relation to the physical evidence, and these were noted in the tendered plan. The location of the physical evidence was not in issue but what inferences could or should be drawn from the evidence was disputed.[21] Exhibit A5. Senior Constable Castle measured the distance of the skid mark from the western edge of the driveway. He also recorded the distance of the pieces of glass Jamie removed from the vehicle from the western edge of the driveway. To assist in understanding the measurements, Senior Constable Castle placed yellow markers on the driveway and took various photographs of the items of physical evidence and the markers. He placed marker 2 alongside the beginning of the skid mark. Importantly, the recorded distance from marker 2, which indicates the beginning of the skid mark to the edge of the driveway, is 1.8 m. That was common ground. The distance from the western edge of the driveway directly to the glass was 15 cm. The driveway is not consistently the same width; it is wider adjacent to the beginning of the skid mark, than it is at the edge nearer the glass. The distance of the glass pieces from the northern end of the driveway or the kerb was not measured. Relevance of the glass deposits and tyre marks Turning to the tyre mark located on the concrete driveway (the skid mark), as discussed earlier it was common ground at trial that this skid mark was caused by the right front wheel of the vehicle and was consistent with the heavy acceleration of the vehicle when moving in a southerly direction. The evidence established that the skid mark began at the northern edge of the driveway. It was also common ground that the change in direction of the skid mark demonstrated that the change in the direction of the vehicle very shortly after moving south was caused by the respondent turning the steering wheel anti-clockwise (referred to as left-hand steer).

Decision

Reasons for decision

When considering a complaint of inadequate reasons on appeal, the majority of the High Court in DL v The Queen explained: [18] Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.(citations omitted; emphasis added)[18] DL v The Queen (2018) 266 CLR 1 at [33]. Thus, a trial judge will ordinarily be expected to expose their reasoning on points critical to the contest between the parties. This expectation applies to both evidence and argument. Ultimately, the reasons must be more than a bare statement of the principles of law applied and the findings of fact made; there must be exposed a reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached. Reasons must identify the relevant principles of law, refer to relevant evidence, state the judge’s findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the judge. The failure to give adequate reasons constitutes an error of law. Where such an error is found, the appeal must be allowed unless the Court is of the view that there has been no substantial miscarriage of justice.Structure of the trial Judge’s reasons The trial Judge’s reasons were lengthy. The trial Judge set out, in detail, the examination-in-chief and cross-examination of each witness. The trial Judge stated:[19]I have endeavoured to set out a complete account of the evidence I heard. I have done so to demonstrate I have considered all the evidence, to assist in explaining why I have rejected certain evidence and why I prefer one witness’s account over another’s. As a result, my reasons are lengthy and recourse to the exhibits is needed to understand the evidence regarding positions of the Mazda, [the appellant] and Jamie during the events that unfolded on 18 April 2014.[19] Hutchinson v Van Den Berg [2022] SASC 90 at [25]. On appeal, the appellant accepted the accuracy of the trial Judge’s evidence summary. The appellant challenged the trial Judge’s approach to fact-finding. The trial Judge, having set out the evidence, then considered whether each witness was reliable and credible. This involved an assessment of the credibility of each witness, informed by admitted or proved inconsistencies in their evidence and an assessment of their demeanour while giving evidence. The trial Judge gave reasons for each assessment by reference to the testimony of that witness alone. The assessment was conducted with little reference to other witnesses’ evidence, and without any analysis of the physical evidence.

Ratio Decidendi

Legal Principle Established

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