Pledge v Roads and Traffic Authority

Case [2004] HCA 13

HIGH COURT OF AUSTRALIA

McHUGH ACJ,
 KIRBY, HAYNE, CALLINAN AND HEYDON JJ

Matters No. S122/2003 and S123/2003

JACK PLEDGE   APPELLANT

AND

ROADS AND TRAFFIC AUTHORITY & ORS          RESPONDENTS

Matters No. S124/2003 and S125/2003

NADIA CATHERINE RYAN
BY HER TUTOR HEATHER RYAN  APPELLANT

AND

JACK PLEDGE & ORS  RESPONDENTS

Pledge v Roads and Traffic Authority;  Ryan v Pledge

[2004] HCA 13

11 March 2004
Matters No. S122/2003, S123/2003, S124/2003 and S125/2003

ORDER

1.   Appeals allowed with costs.

2.   Judgment and orders of the Court of Appeal of the Supreme Court of New South Wales on 10 April 2002 set aside.

3.   Matter remitted to the Court of Appeal to determine re-apportionment of liability among the Respondents to the second appeal and other matters that were before the Court of Appeal but not dealt with in its judgment including the matter of costs in that Court. 

On appeal from Supreme Court of New South Wales

Representation:

Matters No. S122/2003 and S123/2003

D F Jackson QC with J M Morris for the appellant (instructed by Abbott Tout)

D L Davies SC with S Woods for the first respondent (instructed by Crown Solicitor for New South Wales)

J D Hislop QC with G J Gemmell for the second respondent (instructed by McCabe Terrill)

A S Morrison SC with S E Torrington for the third respondent (instructed by Stacks – The Law Firm with Tom Goudkamp)

Matters No. S124/2003 and S125/2003

A S Morrison SC with S E Torrington for the appellant (instructed by Stacks – The Law Firm with Tom Goudkamp)

D F Jackson QC with J M Morris for the first respondent (instructed by Abbott Tout)

J D Hislop QC with G J Gemmell for the second respondent (instructed by McCabe Terrill)

D L Davies SC with S Woods for the third respondent (instructed by Crown Solicitor for New South Wales)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Pledge v Roads and Traffic Authority; Ryan v Pledge

Negligence – Apportionment of liability – Assessment of causative factors in motor vehicle and pedestrian accident – Role of appellate court – Whether Court of Appeal justified in preferring own findings of fact to those of trial judge – Disadvantages faced by appellate court in assessing evidence – Where Court of Appeal made own assessment of photographs in evidence in preference to oral evidence of witnesses at trial – Where trial judge had undertaken viewing of accident site – Where Court of Appeal made speed, distance and timing calculations not proposed at trial.

Words and phrases – "appeal".

Evidence Act 1995 (NSW), s 54.
Supreme Court Act 1970 (NSW), s 75A.

  1. McHUGH ACJ.   The facts and the issues in these appeals are set out in the judgment of Callinan and Heydon JJ which I have had the advantage of reading.  Their Honours hold that the Court of Appeal of New South Wales erred in three respects in exculpating the Roads…

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Pledge v Roads and Traffic Authority [2004] HCA 13
Case
[2004] HCA 13
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard appeals from the Court of Appeal of New South Wales in two related matters, *Pledge v Roads and Traffic Authority* and *Ryan v Pledge*. The dispute arose from a motor vehicle accident where a nine-year-old pedestrian, Nadia Ryan, was struck by a vehicle driven by Mr Pledge. Ms Ryan, along with her father and sister, had been crossing a nature strip to reach a service road. The primary judge in the Supreme Court of New South Wales had apportioned liability between Mr Pledge, the Roads and Traffic Authority (RTA), and the Blue Mountains Council, having had the advantage of a view of the accident site. The Court of Appeal, however, disturbed this apportionment, making its own findings of fact, including speed, distance, and timing calculations not presented at trial, and preferring its assessment of photographic evidence over oral testimony.

The central legal issue before the High Court was whether the Court of Appeal was justified in substituting its own findings of fact for those of the trial judge, particularly given the trial judge's firsthand observation of the accident scene and the evidence presented. This involved considering the nature of an appeal by way of rehearing under the *Supreme Court Act 1970* (NSW), the limitations faced by appellate courts in assessing evidence compared to trial judges, and the weight to be given to a trial judge's findings, especially when based on a view of the locality. The Court also had to consider whether the Court of Appeal had properly applied the principles regarding the drawing of inferences from evidence, including the statutory provision that a court's view of a site is evidence.

The High Court held that the Court of Appeal had erred in its approach. While acknowledging that an appellate court must conduct a real review and is empowered to draw its own inferences and make findings of fact, it must also give due respect and weight to the advantages enjoyed by the trial judge, such as the opportunity to see and hear witnesses and to view the accident site. The Court emphasised that appellate courts operate under "natural limitations" and should not lightly depart from a trial judge's findings, particularly concerning credibility and the "feeling" of a case. The Court found that the Court of Appeal had failed to adequately consider the trial judge's advantages and had engaged in its own assessment of evidence, including photographic evidence and calculations, in a manner that was not justified, especially when the trial judge had relied on oral evidence and a view of the scene which indicated restricted visibility due to foliage and the design of the area.

The High Court allowed the appeals, setting aside the judgment and orders of the Court of Appeal. The matters were remitted back to the Court of Appeal to determine a re-apportionment of liability among the respondents and any other outstanding issues, including costs in that Court.

Orders

Orders of the court

1. Appeals allowed with costs.

2. Judgment and orders of the Court of Appeal of the Supreme Court of New South Wales on 10 April 2002 set aside.

3. Matter remitted to the Court of Appeal to determine re-apportionment of liability among the Respondents to the second appeal and other matters that were before the Court of Appeal but not dealt with in its judgment including the matter of costs in that Court.

Background

Background to the litigation

The question in this appeal is whether the Court of Appeal of New South Wales was right to disturb an apportionment of negligence between defendants made by a trial judge who had the benefit of a view of the locality in which a motor vehicle accident occurred.The facts The Great Western Highway ("the Highway") passes through the town of Blaxland in New South Wales. It consists of a service road, about 7.4 metres wide, a fairly densely planted nature strip about 3.4 metres wide bisected by an almost continuous post and rail fence, two traffic lanes for Sydney bound traffic and two traffic lanes for Katoomba bound traffic. Coughlan Road forms a T‑junction with the Highway on the side of the Katoomba bound lanes. On the side of the Sydney bound lanes, between them and the service road, was a well trodden path across the nature strip through a gap in the fence. It was that path that Nadia Ryan ("the plaintiff") followed shortly before she was struck by a vehicle driven by the appellant, Mr Pledge. It was frequently used by other pedestrians to cross the service road. It was also located within comfortable walking distance of a marked pedestrian crossing on the Highway controlled by traffic lights. Off the service road was a car park which ran from a point level with the marked crossing and the T-junction on which parking at an angle of 90 degrees to the Highway was the practice. One of the purposes of the dense planting on the nature strip was to shield passing vehicles from the glare of headlights at night. The provision of the service road and nature strip was part of a scheme for the widening and improvement of the Highway, and the design of the service road and nature strip were all the work of the Roads and Traffic Authority of New South Wales ("the RTA"). The Blue Mountains Council ("the Council") was responsible for the maintenance of the nature strip. It had also designed the car park beside the service road. During the afternoon of 9 July 1994 the plaintiff, who was then nine years old, her sister and their father, Mr Ryan, crossed from the Katoomba bound lanes of the Highway and reached the nature strip. They passed through the post and rail fence and paused momentarily. Mr Ryan said that he thought that they had stopped about 18 inches to two feet from the kerb of the service road. It was then that Mr Ryan apparently released the plaintiff's hand. Mr Pledge was driving his vehicle in a northerly direction, towards Katoomba. His view of the family was partially obscured by vegetation. Mr Ryan's vision was also reduced. The plaintiff moved forward one or two steps. She was struck by Mr Pledge's vehicle. Mr Ryan had tried to grasp the plaintiff's hand immediately before the impact but missed it by about a foot. At this stage the plaintiff was the only one of the family who was on the road surface. At the time of the accident another vehicle was reversing at an angle of 90 degrees from the car park in front of a hardware store. The trial The plaintiff suffered very severe injuries in the collision. She sued Mr Pledge, the RTA and the Council for negligence in the Supreme Court of New South Wales. The only issue at the trial which was heard by Dunford J was liability.[6] During the trial, his Honour had what he rightly saw as the particular advantage of a view of the site of the accident. Relevant changes in the vicinity were pointed out at that time.[6]Ryan v Pledge (2001) 33 MVR 453.

Evidence

Evidence Before The Court

The Court of Appeal, whilst rightly noting and attaching weight to the fact that the trial judge inspected the scene of the accident, made no reference to s 54 of the Evidence Act 1995 (NSW) ("Evidence Act") which elevates an inspection to the status of evidence in that it can provide a foundation for the drawing of inferences. It is as follows:"54 Views to be evidenceThe court (including, if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection."The appeal to this CourtThe appellant's submissions Mr Pledge seeks in this Court the restoration of the judgment of the primary judge. His submissions focused upon the substitution by the Court of Appeal of its opinion as to his visibility of the locale for that of the trial judge. He emphasized that the trial judge actually accepted the evidence of several witnesses that in fact a driver in his situation, and persons in that of the plaintiff's family would have had their vision obscured. The plaintiff's father could only see Mr Pledge's vehicle "through some shrubbery". It was very difficult for pedestrians in his position, and for drivers in Mr Pledge's situation to see each other because of the state of the vegetation. The plaintiff's father was a tall man. The plaintiff was on his left and would have had even less opportunity to see an approaching vehicle. Mr Pledge's evidence which was for the most part accepted by the primary judge, was that the plants and shrubbery on the nature strip were "very full ... very bushy hanging over the kerb maybe 300 or 400 mill[imetres]": he did not see the plaintiff before the moment of impact; his only explanation for failing to see the plaintiff and her family was the foliage. And it was in the light of that evidence that the trial judge found that the foliage significantly restricted his vision. Reference should also be made to the evidence of Constable Mills, the weight of which the Court of Appeal questioned for want of a reliable or identifiable source. It was not however directly challenged in cross-examination or contradicted by other evidence and it largely coincided with Constable Schneiders' evidence that visibility each way was poor. Their evidence was not weakened in cross-examination. It followed, Mr Pledge submitted, that in circumstances in which the trial judge had accepted credible, indeed substantially unchallenged evidence that the foliage in fact affected vision on the day, the Court of Appeal erred in engaging in its own analysis, based particularly on photographs, and culminating in a conclusion contrary to that of the trial judge. Mr Pledge made similar submissions with respect to the reversal by Ipp AJA of the trial judge's findings of negligence on the part of the Council and the RTA in respect of the location of the car park beside a service road of only about 7.4 metres in width, and the absence of a warning sign. The primary judge's view, he submitted, as to the design of the parking bays was also open: it involved the acceptance of oral evidence of an expert, Mr Wingrove. His Honour specifically found that a potential hazard was created, and that the consequences of it manifested themselves on the day. That a potential hazard may be "of a kind that occurs frequently in everyday life" and may have "to be coped with by careful driving", does not mean that it may not be one of a number of causes of an accident. The primary judge's view of the desirability of a sign was based on the presence of several potential hazards, including the density and closeness to the kerb of the foliage on the nature strip, and the location of the parking bays, as well as the evidence of the expert, Mr Wingrove. Accordingly, it was submitted, there was no reason to set it aside.The decision

Decision

Reasons for decision

HUGH ACJ KIRBY J HAYNE J CALLINAN AND HEYDON JJ
The primary judge's view, he submitted, as to the design of the parking bays was also open: it involved the acceptance of oral evidence of an expert, Mr Wingrove. His Honour specifically found that a potential hazard was created, and that the consequences of it manifested themselves on the day. That a potential hazard may be "of a kind that occurs frequently in everyday life" and may have "to be coped with by careful driving", does not mean that it may not be one of a number of causes of an accident. The primary judge's view of the desirability of a sign was based on the presence of several potential hazards, including the density and closeness to the kerb of the foliage on the nature strip, and the location of the parking bays, as well as the evidence of the expert, Mr Wingrove. Accordingly, it was submitted, there was no reason to set it aside.The decision Statements in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy[7] are of relevance to this appeal:[7](2003) 77 ALJR 989 at 993-995 [21]-[25], [27]; 197 ALR 201 at 206-209."In New South Wales a right of appeal from a judgment of the District Court lies to the Supreme Court pursuant to the District Court Act 1973 (NSW), s 127(1). In the present case such appeal lay as of right[8]. Within the Supreme Court such an appeal is assigned to the Court of Appeal[9]. The character and features of the appeal are governed by the Supreme Court Act 1970 (NSW). Section 75A of that Act provides, relevantly:[8]District Court Act 1973 (NSW), s 127(3). See also s 127(2)(c)(i).[9]Supreme Court Act 1970 (NSW), s 48(1)(a)(iv) and (2)(f).'(5)Where the decision or other matter under appeal has been given after a hearing, the appeal shall be by way of rehearing.(6)The Court shall have the powers and duties of the court … from whom the appeal is brought, including powers and duties concerning:(a) …(b)the drawing of inferences and the making of findings of fact, and(c)the assessment of damages and other money sums.(7) The Court may receive further evidence.(8)Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds.(9) …(10)The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires.'The nature of the 'rehearing' provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the subsections quoted. The 'rehearing' does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal. The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'[10]. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record[11]. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share[12]. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole[13].Nevertheless, mistakes, including serious mistakes, can occur at trial in the comprehension, recollection and evaluation of evidence. In part, it was to prevent and cure the miscarriages of justice that can arise from such mistakes that, in the 19th century, the general facility of appeal was introduced in England, and later in its colonies[14]. Some time after this development came the gradual reduction in the number, and even the elimination, of civil trials by jury and the increase in trials by judge alone at the end of which the judge, who is subject to appeal, is obliged to give reasons for the decision[15]. Such reasons are, at once, necessitated by the right of appeal and enhance its utility. Care must be exercised in applying to appellate review of the reasoned decisions of judges, sitting without juries, all of the judicial remarks made concerning the proper approach of appellate courts to appeals against judgments giving effect to jury verdicts[16]. A jury gives no reasons and this necessitates assumptions that are not appropriate to, and need modification for, appellate review of a judge's detailed reasons.Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect'[17]. In Warren v Coombes[18], the majority of this Court reiterated the rule that:'[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.'...[Other cases do not] derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute."[10]Dearman v Dearman (1908) 7 CLR 549 at 561. The Court there was concerned with s 82 of the Matrimonial Causes Act 1899 (NSW) which provided that "on appeal every decree or order may be reversed or varied as the Full Court thinks proper": see (1908) 7 CLR 549 at 558.[11]Dearman v Dearman (1908) 7 CLR 549 at 561. See also Scott v Pauly (1917) 24 CLR 274 at 278-281.[12]Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637; [1985] 1 All ER 635 at 637 per Lord Scarman with reference to Joyce v Yeomans [1981] 1 WLR 549 at 556; [1981] 2 All ER 21 at 26. See also Chambers v Jobling (1986) 7 NSWLR 1 at 25.[13]State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 at 330 [89]-[91]; 160 ALR 588 at 619-620 citing Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207 at 209-210; Jones v The Queen (1997) 191 CLR 439 at 466-467.[14]Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 619-620; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 at 322‑325 [72]-[80]; 160 ALR 588 at 609-613.[15]Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 666-667 citing Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 257-258, 268-273, 277‑281.[16]eg Hocking v Bell (1945) 71 CLR 430; (1947) 75 CLR 125 at 131‑132; cf Naxakis v Western General Hospital (1999) 197 CLR 269 at 271-272 [2], 274-275 [16], 282-283 [41]-[42], 288-290 [57]‑[58], 310-311 [119]-[123].[17]Dearman v Dearman (1908) 7 CLR 549 at 564 citing The Glannibanta (1876) 1 PD 283 at 287.[18](1979) 142 CLR 531 at 551.

Ratio Decidendi

Legal Principle Established

Established by: HUGH ACJ, KIRBY J, HAYNE J, CALLINAN AND HEYDON JJ

Full text does not contain this section.