Manley v Alexander

[2005] HCATrans 872

[2005] HCATrans 872

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P18 of 2005

B e t w e e n -

WAYNE EDWARD MANLEY

Appellant

and

IAIN STEWART ALEXANDER

Respondent

GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON MONDAY, 24 OCTOBER 2005, AT 3.43 PM

Copyright in the High Court of Australia

MR B.W. WALKER, QC:   May it please the Court, I appear with my learned friend, MR P. KULEVSKI, for the appellant.  (instructed by Edward John Myers)

MR C.L. ZELESTIS, QC:   May it please your Honours, with my learned friend, MR B.G. BRADLEY, I appear for the respondent.   (instructed by Bradley & Bayly)

GUMMOW J:   Yes, Mr Walker, we thought we would give you a preliminary canter.

MR WALKER:   Thank you, your Honour.  I hope I will be able to do more than a preliminary in the time available.  Your Honours, this is a case where inattentiveness is the word at the heart of the Full Court overturning of the trial judge’s conclusion of no negligence.  The no negligence was found, or the failure to show negligence was found in a case which was presented as particularised on page 2 of the appeal book. 

Your Honours will see under paragraph 3 the allegation of negligence, between lines 17 and 26 on that page the five numbered particulars of negligence, all of which, it is fair to say, apart from (ii), wear a somewhat standard appearance, and none the worse for that bearing in mind that carelessness can come in fairly common or garden species.  But your Honours see in particular the time honoured cliché of failing “to keep a proper look out”, and this is a case about looking and seeing ‑ ‑ ‑

GUMMOW J:   Well, this is a case about whether the Full Court got it wrong.

MR WALKER:   Yes, quite, and a case about looking ‑ ‑ ‑

GUMMOW J:   Got it wrong in its interference with the outcome at trial.

MR WALKER:   Yes.

GUMMOW J:   Now, what are the relevant statutory provisions which control the Full Court’s role?

MR WALKER:   They are section ‑ ‑ ‑

KIRBY J:   I think Justice Callinan sets them all out in Jones.

MR WALKER:   His Honour does.  Now, they have changed since the events in question in this case, but as set out in Jones at paragraphs 71 and 72 ‑ ‑ ‑

GUMMOW J:   Now, was that so at this time for this case?

MR WALKER:   Yes.

GUMMOW J:   Thank you.

MR WALKER:   This is an appeal which is an appeal by way of rehearing.  We submit, as was submitted in Jones, that the effect of those provisions, though not directly in terms, is to assimilate the appeal to an appeal of the kind considered by the Court in Fox v Percy.

KIRBY J:   Justin Callinan says that.  I was not in Jones.  Do you accept his Honour’s statement that there is no material difference from the New South Wales position in Fox v Percy?

MR WALKER:   Yes, I do, in the sense that they both answer the description of an ‑ ‑ ‑

KIRBY J:   The New South Wales Act, as I remember it, has some slightly more detailed provisions of what the Court of Appeal can do.  I do not know whether any of them are relevant to the analysis in Fox v Percy, but Justice Callinan thought not.

MR WALKER:   There is sufficient similarity ‑ ‑ ‑

KIRBY J:   There is the power to draw inferences in Western Australia under the rules, I think, made under the Act.

MR WALKER:   Yes, quite.  It is for those reasons that, in our submission, this Court was correct to proceed.  With respect, Justice Callinan was correct in the approach taken in Jones and we respectfully adopt that in this case or, perhaps more accurately, we accept that that is the ambit of not only the power, but the duty on the Full Court in this case.

KIRBY J:   Now, unlike the next case, there is no credibility issue in this case, is there?

MR WALKER:   No.

KIRBY J:   Because the plaintiff could not remember anything and the other witness was not called?

MR WALKER:   That is right.

KIRBY J:   So what is the complaint?  The Court of Appeal has its function to do.  What is the problem?  Why are we, with the brain power of the High Court of Australia, sitting here looking again when the Court of Appeal has done its job?

MR WALKER:   I hope, without exciting concern on your Honour’s part, our short answer to that is to correct an error, albeit in the application of thoroughly well‑established tort principle, in circumstances which, in our submission, do offend the relevant community standards which either inform reasonableness or reasonableness loses its cogency as the proper jury amenable legal standard for such cases.

KIRBY J:   But that is a fact issue, a jury issue.

MR WALKER:   Yes, it is a fact issue.

KIRBY J:   It is not really a matter that the High Court of Australia can say that there is error, can it?  It is just that the trial judge did his best.  The Court of Appeal did its best.  Where is error?

MR WALKER:   Your Honour, it is never an answer to an argument that there has been a miscarriage in jurisdictions where miscarriage is the badge of appellate interference.  It is never an answer to say that a judge or a jury, as the case may be, has looked at and done their best.  In our submission, just as ‑ ‑ ‑

KIRBY J:   Well, I withdraw the “best”.  By that I meant the trial judge fulfilled his function.  The Court of Appeal with power of drawing inferences fulfilled its function.  You have to show error on a factual matter.

MR WALKER:   Quite.  I accept all of that, your Honour.  Now, the same was also true in Jones and, in our submission, there was, just as in that case, an array of factual matters.  The array is somewhat smaller in this case.  There is an array of factual matters about which, with great respect, reasonable minds might differ as to where a particular course of conduct should fall on a spectrum with disapproval at one end and approval at the other end and rather less enthusiastic states of mind in the middle, which is the spectrum upon which a judgment as to reasonableness or not falls to be decided. 

In our submission, there is clear example, and thus authority, by decisions, of which Jones is simply a recent one conveniently to hand in this case, as to the propriety of this Court in supervising the discharge of an appellate function where, in effect, no error is able to be shown by the trial judge.

KIRBY J:   This sounds like Fox v Percy’s thinking, trying to get us to go back to pre-Fox and Percy.

MR WALKER:   No, I am not asking for any of the principles enunciated by this Court to be gone back on, but simply that the ample power of Full Courts and Courts of Appeal in appeals by way of rehearing from trial judges, even just Bench trials without a jury, that ample power, in our submission, should not be used in such a way as on matters of characterisation and overall conclusion to consign a trial to a dress rehearsal for everyone who can afford to go on appeal by having the decision of the intermediate appellate court no more constrained by the trial judge than the trial judge, of course, before whom there had been no adjudication at all to guide him or her.

GUMMOW J:   Is there any – this may be in your favour – is there any reference in the Full Court judgment to its appreciation of its charter?

MR WALKER:   No, there is no explicit reference.  That may be in my favour, your Honours, but I am bound to observe that it can be said in their favour that their Honours set about the task of asking themselves what conclusion they would come to from the proven facts and it is hard for me to say on authority – and I do not challenge the authorities – that that in itself bespeaks error.  However, in my submission, interference with a trial judge must be different from simply it being a successive hearing and different judges are hearing the second hearing or else this is not appeal, albeit by way of rehearing, at all.

GUMMOW J:   The big question in the Full Court seems to have been the evidence point, which is not before us.

MR WALKER:   Yes, but that does not loom large now.

GUMMOW J:   So the leading judgment on the matter that we have before us is Le Miere.

MR WALKER:   Yes.

GUMMOW J:   Where do you take us through that to show error?

MR WALKER:   Yes, at page 142 of the appeal book starting at paragraph 37 there is a reference to the evidence from what I will call the plaintiff’s side of things.  At page 143, paragraph 40 there is the quotation of the same passage that is the main passage in the defendant’s testimony accepted by the trial judge between lines 30 to 40.  Your Honours see there that it is all about what can be seen and what was being looked at in circumstances with which your Honours are familiar from the reasons and the written submissions and to which I will return.  At page 42 there is a reference to Dr Chew, the engineer’s expert evidence, which, with respect ‑ ‑ ‑

KIRBY J:   It was ultimately rejected, was it not?

MR WALKER:   ‑ ‑ ‑ does not really go anywhere and there was not, at that point, any comment which would detect error on the part of the trial judge in the Full Court on that basis.  Under the heading “Findings of Trial Judge” commencing at paragraph 43 on page 144 there are observations, in particular, concerning the way in which the actors got into their places.

KIRBY J:   Could I just ask you, on Dr Chew’s evidence – I have sat in so many of these cases in the Court of Appeal that we used to get a schedule of stopping rates – can Dr Chew be accepted, at least as the vehicle for providing us with stopping rates which were often referred to in the Court of Appeal?

MR WALKER:   No, I do not think that there is evidence of stopping rates for this vehicle.

KIRBY J:   He does say that going at a certain speed you can stop within a certain distance.

MR WALKER:   Is your Honour asking me about this vehicle?

KIRBY J:   Yes.

MR WALKER:   I am not sure that Dr Chew’s evidence goes so far.  I will have to return to that, your Honour.

KIRBY J:   I thought in Judge O’Sullivan’s reasons he quotes, but anyway, we will have a look at that overnight.  I am thinking of page 115.

MR WALKER:   Thank you, your Honour.  In relation to findings of the ‑ ‑ ‑

CALLINAN J:   One of the problems, it seems to me, Mr Walker, not for you but for the other side, is that there are obvious priorities that arise when one is driving.

MR WALKER:   Yes.

CALLINAN J:   To say that you have a duty, as Justice Le Miere did, in paragraph 51, to all road users is to overlook that there are going to be different demands upon drivers at different times and priorities have to be allocated.

MR WALKER:   Yes, and emergencies recognised ‑ ‑ ‑

CALLINAN J:   Exactly.

MR WALKER:   ‑ ‑ ‑ and the human organism acknowledged and particularly what I will call reflex reactions which are pre‑eminently reasonable.

CALLINAN J:   If you were watching a person who is drunk on the side of the road and whose movements are bound to be unpredictable, then it is obvious that you are going to pay more attention to that person than to anything else at all.  That is the present danger.

MR WALKER:   Yes, your Honour invites me to jump ahead a bit to what I will call the Full Court error, but if I may, before developing that, continue my answer to Justice Gummow’s question about the Full Court’s identification of anything in the nature of error, to use a provocative word, at first instance.

GUMMOW J:   Yes, we got to paragraph 43.

MR WALKER:   Yes.  Now, at 43 and following the Full Court is referring to how the trial judge dealt with the way in which the actors got into their respective positions.  In 44, in what turns out to be the beginning of the criticism – I am anticipating the last sentence of 46 when I say that – there is a reference to the trial judge making “no express finding as to when the appellant moved onto the road.”  For your Honours reference, that is a reference by his Honour to the trial judge’s reasons to be found, in particular, on pages 119 and 120 from about paragraph 29 and particularly including paragraphs 31 and 32 to which I will come back.

KIRBY J:   That might have been mentioned because there was something in the statement that the plaintiff had come onto the road, I think.  There was something ‑ ‑ ‑

MR WALKER:   Well, there is no question the plaintiff was on the road when he was hit.

KIRBY J:   Yes, I realise that, but there was something said in the statement that could be understood as indicating that he had only just done it.

MR WALKER:   That is right.  So then the repetition about the trial judge making no express finding and the reasons for that is contained in the last sentence of paragraph 44, page 144, line 50, “no evidence . . . no basis for [so] concluding”, and then in the Full Court it is said at top of page 145, paragraph 45:

There was no evidence as to when the appellant came to be on the road.  However, the respondent gave evidence that when he first observed him –

and that was just before he hit him –

the appellant was lying face down on the roadway –

and then paragraph 46 there is a ‑ ‑ ‑

KIRBY J:   Can I just get it clear, the respondent was on the ‑ ‑ ‑

MR WALKER:   On the carriageway.

KIRBY J:   ‑ ‑ ‑ right-hand side of the road, is that ‑ ‑ ‑

MR WALKER:   No, the respondent is on the carriageway for my client to drive on, that is, the left-hand side of the road.  So he is in the track of vehicles driving lawfully to the left of the centre line.  He is lying along the road, not across it.

KIRBY J:   Yes.  There was some suggestion at some stage that he was lying ‑ ‑ ‑

MR WALKER:   Transversely?  I think not, but certainly the finding is ‑ ‑ ‑

KIRBY J:   That is not now in question?

MR WALKER:   ‑ ‑ ‑ longitudinally with the direction of intended traffic travel.  Now, at paragraph 45 there is reasoning which is, of course, of a kind within the power of a Full Court in an appeal by way of rehearing, but not immune from criticism as an exercise of that power when it is carried out.  In the second sentence, introduced by the word “However”, it is said:

the respondent gave evidence that when he first observed him –

when he first observed him, there seems to be an acceptance of the evidence of my client –

the appellant –

that is the plaintiff –

was lying face down on the roadway just past . . . in line with the direction of the road –

and then paragraph 46:

The appellant had been walking home with Mr Turner.

Then comes the fact finding:

It is probable that the appellant was a short distance from Mr Turner when the respondent first spotted Mr Turner.

Now, just to remind your Honours, Mr Turner is the upright, albeit swaying, pedestrian not yet on the carriageway, on the verge.

GUMMOW J:   Yes.

MR WALKER:   The appellant is, of course, the plaintiff lying down on the road.

KIRBY J:   Where is Mr Turner in relation to the plaintiff?  He is off the road.

MR WALKER:   He is off the road at the same juncture in the road, at the same level in the road.

KIRBY J:   But is he on the left-hand side or is he on the right-hand side of the road?

MR WALKER:   Left-hand.

KIRBY J:   Left.

MR WALKER:   The left of the driver going down the road.

KIRBY J:   Maybe I have spent too long in Commonwealth cars, but normally if they ever see – or most drivers I have ever driven with – anybody gesticulating or because we know that people do funny things, they tend to slow down.

MR WALKER:   And they tend to be careful, yes.

KIRBY J:   Yes, very careful.

MR WALKER:   It is almost impossible ‑ ‑ ‑

KIRBY J:   Thirty-five per cent careful.

MR WALKER:   Thirty, I think, your Honour, it was in this case.  Paragraph 46, there is a finding of fact at about line 22:

It is difficult to imagine that the appellant could have moved from the road verge onto the road and fallen or laid down in the position where he was first seen by the respondent –

so acceptance of my client’s evidence that he first saw the person lying on the road –

without the respondent having seen him.

Now, that is a reference to the obviously more visual phenomenon of somebody coming from a verge and ‑ ‑ ‑

GUMMOW J:   Yes, we understand all that, Mr Walker.  We are not debating…..on contingent remainders.

MR WALKER:   Well, your Honour asked me how did the Full Court deal with error.

GUMMOW J:   I know I did.  The question is, the last sentence in paragraph 46, was that some abuse of the authority of the Full Court?

MR WALKER:   In our submission, clearly, because ‑ ‑ ‑

GUMMOW J:   Why?

MR WALKER:   There clearly is, in our submission, no conclusion to be drawn from the inference drawn there which was adverse to my client’s position at trial.  It comes about as follows.  In paragraph 46 the very reasoning which produces the inference that the man would have been lying down before it was possible first to see him or before he was first seen, that inference is based upon the proposition that some alternative theory would have had him more visible earlier.  So this is reasoning that has him less visible.  That is, therefore, a finding of fact, if it should be made or not, which cannot show that the trial judge erred in regarding it as not unreasonable for my client not to have seen this man before he did, and it is before he did which is at the heart of the matter.

KIRBY J:   The word “inference” is used which is the right statutory word.

MR WALKER:   Yes.

KIRBY J:   The judge is drawing his own inference and saying, “This is the inference that should be drawn, namely, because I draw it”.

MR WALKER:   Yes.

KIRBY J:   What is the error of that?  I mean, I can see very well the argument of fact on it.  The plaintiff had dark hair, as I understand it, as well.  That was established somewhere, I think.  So he is lying there with his dark hair and his most unusual place, I can understand the factual point, but this is a judge with the power who draws the inference.  I just do not see what the error is.

MR WALKER:   Your Honour, all I am saying is that in overturning by inference a non-finding, that is, a refusal to make a finding on the balance of probabilities by the trial judge, their Honours were proceeding to use an aspect of the circumstances which ultimately goes to show that the plaintiff was less visible than might otherwise have been left open by the position, that is, a refusal to make a finding on inadequate material left by the trial judge.  So if that be an appropriate finding of fact at the appellate level, it is not one which shows anything in the nature of error by the trial judge.

CALLINAN J:   It reinforces absence of negligence rather than establishes it.

MR WALKER:   Yes, quite so.  I am sorry to have been so longwinded in answer to Justice Gummow’s question.  That is the most explicit reference to what I will call an error of fact by the Full Court in setting out to correct the trial judge.

HEYDON J:   Mr Walker, can I just get this straight.  I thought your written submissions, as it were, took paragraph 51 of Justice Le Miere and attacked that.

MR WALKER:   Yes.

HEYDON J:   In other words, it accepted the correctness of the criticism in paragraph 46.  What you are now doing is attacking paragraph 46 as well.

MR WALKER:   No, your Honour.  I said even if that inference be supported, it leads to a conclusion and uses reasoning which strengthens our position.

HEYDON J:   Yes.  Well, I just want to know, do you accept paragraph 46 or do you accept the trial judge, paragraph 32, or do you have ‑ ‑ ‑

MR WALKER:   In our submission, the trial judge, paragraph 32, has no defect in it.

HEYDON J:   Right.

MR WALKER:   I have to add, on the other hand, the Full Court has powers, unquestioned powers, of drawing inferences from the evidence.

HEYDON J:   What is your preferred position though?

MR WALKER:   Paragraph 32 of the trial judge is my preferred position, but your Honour correctly points out that my attack on the Full Court’s position focuses on paragraph 51 and is an attack even if paragraph 46 should be regarded as an appropriate, that is, not a wrong or excessive, disagreement by the Full Court with the trial judge. 

The reasons we say that is that it goes nowhere in the direction of showing negligence.  It uses reasoning.  It turns on the proposition that you are less visible if you are already on the ground and still than if you are in the process of moving from being upright and walking to being lying down and still.  Now, that is the way in which we deal with what is, in our submission, the only matter of factual substance where something called an error is identified by the Full Court.

KIRBY J:   By the way, the plaintiff’s hair was brown, on page 15, somewhere in the middle of the page.  At least that was the evidence.

MR WALKER:   Paragraph 48 is also in the nature of a disagreement, that is, an identification of error in relation to the trial judge’s approach.  Paragraph 48 in Justice Le Miere’s reasons responds to the observation found in the appeal book at 120, paragraph 36 by the trial judge who says in the relevant sentence at about line 38:

His absence as a witness, it seems to me has not been well explained and in those circumstances the discharge by the plaintiff of the onus which he bears is made harder.

Now, there are several strands in that.  No doubt the lack of evidence of an eyewitness is something which, by reason of the allocation of the onus, is likely in many cases, if not in all cases, to disfavour a plaintiff.  It appears also to be in the nature of a very elliptical Jones v Dunkel form of reasoning.  At page 145, paragraph 48, Justice Le Miere says at line 40:

Mr Turner was an eyewitness.  It was open to either party to call him as a witness.

Well, that is true of most witnesses of whom a Jones v Dunkel comment can be made.  Then there is a reference to something which apparently is a kind of a black hole for witnesses, namely, having returned to the eastern States.

HEYDON J:   I just want to get this straight.  Are you saying that Justice Le Miere erred in criticising the judge for what he said?  Are you saying, for example, if he had gone to the eastern States that might be an explanation for unavailability, Jones v Dunkel would not arise?

MR WALKER:   Yes.

HEYDON J:   If it is not an explanation, the next question is, speaking loosely, is Mr Turner in the plaintiff’s camp?  There must be a good argument he was.

MR WALKER:   Yes.

HEYDON J:   But what is the inference you can draw more strongly which the absent Mr Turner might have been able to prevent being drawn?

MR WALKER:   Your Honour, we do not have a case about that.  That is why it is not found in our written submissions.

HEYDON J:   Well, why are we talking about it then?

MR WALKER:   Because, your Honour, I was asked about the Full Court identification of error by the trial judge.  That I am bound to point out is in that category.  That is all.

GUMMOW J:   Well, that brings us to paragraph 49.

MR WALKER:   I do not want to talk about it otherwise at all, your Honour.

GUMMOW J:   Now, how much longer will you need, do you think, Mr Walker?

MR WALKER:   About 10 or 15 minutes, I think, your Honour.

GUMMOW J:   Better say half an hour, I think.  Yes, Mr Zelestis, how long do you think you will be?

MR ZELESTIS:   I am sorry, is your Honour asking how long I will be?

GUMMOW J:   How long do you think you will need?

MR ZELESTIS:   I would think about 20 minutes.

GUMMOW J:   Yes.  Mr Handley said to Sir Garfield Barwick once that is without interruptions.  Well, it is a running list, but if the Registrar is talking to counsel he might indicate to counsel in the next case that that will probably be not before 11.15.  We will adjourn until 10.15 tomorrow morning.

AT 4.10 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 25 OCTOBER 2005