JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JOYCE -v- ANDERSON [2020] WASCA 48
CORAM: MITCHELL JA
BEECH JA
VAUGHAN JA
HEARD: 10 MARCH 2020
DELIVERED : 8 APRIL 2020
FILE NO/S: CACV 103 of 2019
BETWEEN: CLARA LOUISE JOYCE
Appellant
AND
GILLIAN MARGARET ANDERSON
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: HERRON DCJ
Citation: ANDERSON -v- JOYCE [2019] WADC 121
File Number : CIV 359 of 2016
Catchwords:
Appeal - Where deceased cyclist killed in collision with motor vehicle driven by appellant - Where appellant's liability under the Fatal Accidents Act 1959 is admitted - Whether trial judge erred in finding that death was not caused by the contributory negligence of the deceased
Legislation:
Civil Liability Act 2002 (WA), s 5B, s 5K
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | M D Cuerden SC and D M G Burton |
| Respondent | : | T Lampropoulos SC and B G Bradley |
Solicitors:
| Appellant | : | SRB Legal |
| Respondent | : | Bradley Bayly Legal |
Case(s) referred to in decision(s):
Abalos v Australian Postal Commission 1990] HCA 47; (1990) 171 CLR 167
Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424
Child and Adolescent Health Service v Mabior [2019] WASCA 151
Dearman v Dearman (1908) 7 CLR 549
Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
G v O [2018] WASCA 211; (2018) 53 WAR 393
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
Gordon v Truong [2014] NSWCA 97; (2014) 66 MVR 241
Gribisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524
J-Corp Pty Ltd v Thompson [2019] WASCA 173
Kiriwellage v Best & Less Pty Ltd [2013] VSCA 355
Lee v Lee [2019] HCA 28; (2019) 93 ALJR 993
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572
Proudlove v Burridge [2017] WASCA 6; (2017) 79 MVR 257
Public Transport Commission (NSW) v Perry [1977] HCA 32; (1977) 137 CLR 107
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
Sherrard v Jacob [1965] NI 151
Sibley v Kais (1967) 118 CLR 424
Smart v Power [2019] WASCA 106
Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650
Warren v Coombes (1979) 142 CLR 531
Wensink v Marshall [2010] WASCA 117; (2010) 56 MVR…
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- AGLC
- Joyce v Anderson [2020] WASCA 48
- Case
- [2020] WASCA 48
- Decision Date
CaseChat Overview and Summary
The primary legal issue for the court was to determine whether the trial judge erred in finding that the deceased's death was not caused by his contributory negligence. The court needed to examine the trial judge's reasoning and findings, particularly regarding the evidence provided by Mr Maddison, the only living eyewitness to the accident. The appellant argued that there was an inconsistency in Mr Maddison's evidence concerning the speed of the deceased, which the trial judge failed to reconcile. The court had to assess whether this inconsistency, if any, was significant enough to warrant a conclusion that the trial judge had erred.
The court found that the trial judge's determination that the deceased's death was not due to his contributory negligence was supported by the evidence presented, particularly the unchallenged estimate of Mr Maddison regarding the deceased's speed. The court emphasised that the trial judge's findings should not be disturbed unless there was a clear error. The court concluded that the appellant had not demonstrated that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The trial judge's finding was based on credible evidence and reasonable inferences, and therefore, the appeal was dismissed.
The Court of Appeal upheld the trial judge's decision, finding no error in the trial judge's conclusion that the deceased's death was not caused by his contributory negligence. The appeal was dismissed, and the original judgment stood affirmed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Even where the appeal concerns the inferences to be drawn from established primary facts, it remains necessary for the appellant to demonstrate error. As Beaumont and Lee JJ observed in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher:[113][T]he court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the trial judge and do not support the judgment. The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes (at 552 - 553) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected.That observation has been adopted by this and other intermediate appellate courts.[114][113] Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359, 369.[114] See Proudlove v Burridge [2017] WASCA 6; (2017) 79 MVR 257 [127] and cases there cited. The choice as to the appropriate appellate standard of review is not binary. As Beech and Vaughan JJA observe at [206] - [213] below, the nature and extent of the trial judge's advantage informs what is required in order to reach, and the extent of appellate restraint in reaching, a conclusion of error. The nature of the finding, and the reasoning by which it was made, affects what is required in order to demonstrate appellable error. I agree with their Honours' observations in those paragraphs. The difficulty facing the appellant in this case is that the trial judge's finding as to the speed at which the deceased was probably travelling was based on the evidence of Mr Maddison. Mr Maddison was a witness called by the appellant, and was the only living eye witness to the accident who was able to provide an estimate of the deceased's speed. His estimate that the deceased was travelling at 15 - 20 km/h was not challenged in cross-examination. His estimate of the deceased's speed was neither inherently improbable nor contradicted by other objective evidence. Mr Maddison had a clear view of the deceased as the deceased rode across his path. His unchallenged estimate which had been adduced in evidence by the appellant supported the trial judge's finding as to the deceased's speed. The appellant relies on Mr Maddison's estimate that he saw the deceased cover a distance of 25 m over 2 - 3 s. The appellant says that this distance over time is equivalent to 8.33 - 12.5 m/s, which is 30 - 45 km/h. The appellant says that the trial judge failed to reconcile this aspect of Mr Maddison's evidence with his estimate that the deceased was travelling at 15 - 20 km/h. The appellant says that there is an inconsistency between Mr Maddison's estimate of the deceased's speed of 15 - 20 km/h and his estimation that the deceased travelled 25 m over 2 - 3 s.[115][115] Appeal ts 12.