Pledge v Roads and Traffic Authority

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.