HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, KIRBY, CALLINAN AND HEYDON JJANTHONY PETER SUVAAL APPELLANT
AND
CESSNOCK CITY COUNCIL RESPONDENT
Suvaal v Cessnock City Council
[2003] HCA 41
6 August 2003
S384/2002ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation:
G O'L Reynolds SC with D R Conti for the appellant (instructed by McClellands)
D F Jackson QC with D T Miller for the respondent (instructed by Moray & Agnew)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
GLEESON CJ AND HEYDON J. The appeal in this unusual case must be dismissed with costs for the reasons given by Callinan J, together with the following reasons.
Despite an ambiguous passage in the primary judge's reasons, it became common ground, at least in argument before the Court of Appeal, that there were no potholes in the intended path of the plaintiff as he travelled along the road, and if he hit potholes, this can only have been because his bicycle moved to the left, perhaps only to a small degree, and encountered potholes at the left hand edge of the road surface. The plaintiff's case, rejected by the primary judge, was that a motor vehicle forced him to the left. The primary judge, to the contrary, found that he moved left because of a loss of concentration on his part. The Council contended that his leftward movement could have been caused by a failure in the integrity of the handlebars in normal use on the road before he ran into the potholes at the left side of the road.
The case presented numerous difficulties for the plaintiff and for the primary judge. There was only one eye-witness, the plaintiff, and he was obviously an interested witness. He was giving evidence at a trial conducted six years after the events in issue. He gave numerous out-of-court versions of events, some of which were inconsistent with others, and some of which were less complete than was desirable from his point of view, given the nature of the case presented at the trial. The pain and shock of the accident may well have deleteriously affected his powers of memory and narration in its immediate aftermath. The continuing pain of the plaintiff's injuries and the medication he was given may well have similarly affected his powers of memory thereafter. The evidence of numerous other witnesses also was in conflict. Since the plaintiff was travelling at 25 miles per hour, ie about 40 kilometres per hour, which is more than 11 metres per second, the intervals of time within which the relevant events were happening were extremely small. If the handlebars failed in normal use on the road without the bicycle striking a pothole first, it might have hit a pothole a metre or two later – one or two tenths of a second later. This posed a difficulty for the primary judge…
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- Case
- [2003] HCA 41
- Decision Date
CaseChat Overview and Summary
The central legal issues before the High Court concerned the powers and limitations of an appellate court when reviewing findings of fact made by a trial judge. Specifically, the court had to consider whether the trial judge was entitled to adopt a version of events not advanced or fully tested by either party, and whether doing so constituted procedural unfairness. The court also examined the principles governing an appellate court's ability to disturb findings of fact, particularly those based on the trial judge's impressions of witness credibility and the entirety of the evidence.
The High Court affirmed that while an appellate court should be hesitant to disturb findings of fact, especially those involving credibility, it is not precluded from reaching its own conclusions as to probable facts if those conclusions are open on the evidence and pleadings. The trial judge had rejected the appellant's primary pleaded case that an unidentified vehicle caused the accident. Instead, the judge inferred that the appellant lost concentration, causing him to veer into potholes, which in turn led to his loss of control and subsequent injuries. The High Court found that this alternative explanation was open on the evidence and pleadings, and that the trial judge's reasoning, while perhaps not ideal in its presentation, did not amount to procedural unfairness. The appellate court's reversal of the trial judge's decision was therefore upheld.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: GLEESON CJ, HEYDON J, HUGH AND KIRBY JJ, CALLINAN J
Full text does not contain this section.