The judge said "That doesn't carry any weight with me insofar as this gentleman is called as an expert witness".
46 In the upshot, the trial judge admitted the whole of the first report with the exception of the last sentence in par 18, the whole of the second report with the exceptions of the last sentence in par 5, par 8 and par 12 and the whole of the third report with the exception of par 5.
47 Mr Wingrove was then called to give evidence. In the course of his evidence in chief, he said that when emergency braking causes "wheel lock up" and there is skidding, there is noise from the skidding and probably visible smoke from the tyres; when the truck is unladen there is a characteristic called "skip skid or wheel chatter" and that there is distinctly audible noise from the tyres. The trial judge asked him whether he had tested a Mack truck such as Mr Murphy's for these characteristics. The witness said that the vehicle on which he had done emergency braking tests most similar to the Mack was a "Ford Louiville", which he said was of the same category as the Mack, the similarity being equivalent to that of a Holden to a Ford Falcon.
48 The appellant's counsel sought to ask a question which in essence dealt with the same subject as par 22 of the first report, which was whether, if the respondent had reacted slightly more quickly to the circumstances of the sliding of Mr Murphy's truck consequent upon his locking up of the brakes, the respondent's truck would have missed the appellant. Objection was taken to the form of the appellant's counsel's question and the trial judge, quite properly, sought to clarify the matter:
" HIS HONOUR: Q. Well let's stick to his progress. I'm looking at it from a technical view Mr Wingrove, from your point of view as you probably imagine? A. Mm.
Q. You are asked to assume that the plaintiff was passing 100 feet in front of Murphy's truck, is that the first?
MORRISON: Commenced. Commenced his progress when he is in excess of 100 feet away.
HIS HONOUR: Leaving the curb or leaving the -
MORRISON: Leaving the footpath.
HIS HONOUR: Leaving the footpath. That's one assumption. I presume you were asked to assume both vehicles are going about 45k's.
MORRISON: Forty-five to 50 in accordance with Mr Murphy's evidence.
HIS HONOUR: You are also asked to assume that the relative positions are as described namely the front of the defendant's vehicle about in line with the rear of the Mack truck and you were asked to assume that in that position of that place there emits from the Mack truck this noise you've described of the skip slide and et cetera. And you were also asked to assume that the plaintiff give him his say one second reaction time observe that and react to it. Is that right?
MORRISON: Yes.
HIS HONOUR: Is that right?
MORRISON; Yes. The defendant, not the plaintiff.
HIS HONOUR: q. Now on those assumptions I think you were asked would the defendant's vehicle and the plaintiff have come into contact with each other? A. I believe not. I believe that there would have been a retardation to the defendant's vehicle. "
49 The appellant's counsel then took the matter a little further:
" MORRISON: Let's assume instead of coming from the footpath that the pedestrian comes from between parked vehicles in the number one lane, he's still whatever necessary distance he has to be in front of Mr Murphy for Mr Murphy to have gone through the exercise I put to you earlier of reaction time and some degree of braking. What, if any, difference does that make, assuming the other matters remain constant to whether or not the defendant's vehicle and the pedestrian would have come into contact? A. It makes no difference. It just means that the situation has just been moved down the road that small distance. The overall relativity of the two vehicles' behaviour will stay the same. It's just that it's been moved closer to where the plaintiff crossed the road, that's all. "
50 The respondent's counsel was aware of the point, crucial to the appellant's case, to which the expert's evidence was directed, namely, that a driver on the alert for possible trouble is likely to react more quickly than a driver not alert in that way. He sought to deflect the applicability of this point by raising with the expert witness the possibility that the respondent, in his truck close to the larger truck of Mr Murphy which occupied almost the full width of lane 2, was concerned about the specific possibility that Mr Murphy's truck might encroach into the respondent's lane 3 with possible danger to him from that happening. This awareness of the respondent's counsel is apparent from the following questions and answers:
" Q. Let me put this to you, if you're driving beside a very large vehicle and you're in a very small vehicle, I'm not suggesting that it's immediately relevant to this case, I'll come back to that in a moment but if you're driving in a very small vehicle beside a very large vehicle and you are concerned that the vehicle may come into the lane as it were on top of you then your reaction time for that event may be right at the low end of the range mightn't it, three quarters of a second or thereabouts would you agree?
A. I would agree to the point that you would approach that range, but there's not too many people that get down to that three quarters of a second.
Q. Not too many people can get down to three quarters of a second indeed but if you perceive a risk and you are concentrating on that risk occurring if that risk crystallises into reality then you're likely to be able to react to that risk more quickly than if you're not?
A. Yes I agree with that.
Q. If you are concentrating your attention if I can call it that, if your state of alertness is directed to one particular risk and another unexpected risk occurs at the same time your reaction time in respect of the unexpected risk is likely to be longer than it otherwise would be, don't you agree?
A. It could be."
51 A good deal of the cross-examination was spent on the question whether there was likely to have been a noise sufficient for the respondent to hear from Mr Murphy's truck when, as Mr Murphy said, his brakes locked, the truck slid forward, and smoke appeared. A representative illustration of the result of this cross-examination appears in the following passage:
" MACHONACHIE: Q. What I'm putting to you is that somebody who's been driving the very truck involved in this incident in the sense of Mr Murphy's truck, somebody who'd been driving it for four or five years, has got far more authority to speak about its behavioural characteristics in the situation in which it was found than you do, doesn't he?
A. Yes, except for the fact that I've worked far - with tyres and it is exceedingly unlikely that you could ever get a tyre to produce smoke and not make a noise from skidding.
Q. But it can happen?
A It's like I could win the lottery too, sort of thing, those sort of odds."
52 And again, on the theme that the expert had not direct knowledge of a Mack truck such as Mr Murphy's:
" Q. And can you tell his Honour the differences between a Ford Louiville suspension system in all those respects and Mack Truck suspension system? A. I can't tell you the exact differences. They are generally the same. That's all I was looking at. "
53 After Mr Wingrove, other witnesses gave evidence relevant to the damage suffered by the appellant.
54 The next morning (1 April 1998) the trial judge dealt with the disqualification application made on behalf of the appellant. He said that the issue he had to determine was whether his comments in relation to the report of Mr Wingrove were such as to cause reasonable apprehension in the mind of a reasonably intelligent lay observer of an impression of bias in particular that by his words he had demonstrated or might demonstrate that he was unable to approach the assessment of the expert evidence of Mr Wingrove in a fair and even handed manner without an inclination to one side or the other. He said that he was not persuaded that what he said was likely to raise a reasonable apprehension of pre-judgment and bias and therefore dismissed the application.
55 At the end of the evidence and submissions in the case (2 April 1998) the judge reserved his decision. He delivered judgment on 15 April 1998. In his reasons for judgment he recounted the evidence in the case in an unexceptionable way. He summarised the principal conclusions and opinions of Mr Wingrove from the three reports, again in a way which does not seem to me to call for criticism, and which was not criticised. In this summary he quoted from Mr Wingrove's first report, inter alia, the following:
" The driver of the vehicle that collided with the plaintiff ought to have been brought to a state of awareness of some form of impending danger had the vehicle in the traffic lane next to his vehicle applied the brakes to the level that the brakes would have caused the wheels to lock up. "
56 The trial judge then summarised the effect of Mr Wingrove's oral evidence. He attached some importance to the fact that Mr Wingrove had acknowledged that at the time of writing his first report he knew very little about the Mack truck. He noted Mr Wingrove's assertion that the details which he did not then know would not have an effect on his calculations and that Mr Wingrove had added that if memory served him correctly he had been told that the defendant's truck did not brake. The judge said that of this there was of course no evidence. He had earlier set out the respondent's statement, which I also have set out above, in which the respondent had said that when he first saw the appellant "he was in front of my truck about one metre away. I hit the brakes, and the front of my truck hit the man". Mr Wingrove had made it plain in his evidence that in his view, based on that statement by the respondent, there could have been no time for the respondent's hitting the brakes to have had any effect on the speed of his truck.
57 The judge recorded Mr Wingrove's evidence that it would be most unusual for a tipper truck, unladen, to lock the wheels up and not emit noise from the vibrations. He also recorded that Mr Wingrove agreed that a person driving a particular truck for four or five years would be able to speak far more authoritatively on how that truck behaved than someone who had never seen it. He also recorded that Mr Wingrove "continued to assert" that it was exceedingly unlikely that you could ever get a tyre to produce smoke and not make a noise from skidding.
58 The trial judge then turned to the evidence of Mr Murphy, who he said appeared truthful and reliable. The judge said that he thought his estimates of time and distance were perhaps shorter than what really happened (Mr Wingrove had demonstrated that this must be so) but that he had no reason to doubt Mr Murphy's general reliability and credibility. He said he was satisfied that the appellant had run onto the roadway and crossed quite close in front of Mr Murphy's vehicle, that Mr Murphy did brake his vehicle as soon as he could and that was at about the time the plaintiff was running across the front of his vehicle. I do not understand that there was any contest about this view of Mr Murphy's evidence.
59 The trial judge then said he had considerable reservations about Mr Wingrove's expert evidence and asked why it should be preferred to the sworn evidence of Mr Murphy. He then gave reasons why he answered his question in favour of preferring Mr Murphy's evidence.
60 The first reason was that Mr Wingrove had wrongly assumed the role of the advocate. The judge said this was apparent from his prevarication in relation to the speed at which the appellant might have been walking and his construction of the respondent's statement from which he drew the conclusion the respondent did not brake before the impact. My reading of the evidence did not leave me with the impression of prevarication; rather the witness was trying to explain why he drew a particular inference which the judge chose not to agree with. As to the judge's remark about wrongful assumption of the advocate's role, I would add to what I have said earlier, that it makes two separate criticisms: one, that the expert is arguing, in the way already discussed, the other that the expert is stating opinions not genuinely held. In the first case the duty of the court is to consider what substance the argument may have. In the latter case, the court is entitled to give little or no weight to the opinion, as the other circumstances of the case may indicate, but I do not understand the trial judge here to have concluded the witness was not genuinely of the view he was expressing.
61 The next reason given by the trial judge for preferring Mr Murphy's evidence was that Mr Wingrove's opinions were based on assumptions for which there was no evidence in support. The first of these was Mr Wingrove's statement in par 18 of his first report that Constable Magee was reported to have been unable to locate any skid marks. The judge fairly remarked that that may have been true, but added that there was no evidence of it. The judge was right in saying this also. The criticism however seems to me to have been rather pointless in the circumstances of the case. Mr Wingrove had listed in par 4 of his first report the documents available to him before he made it. These included a copy of the notes of an interview with Constable Magee dated 20 December 1994. Mr Wingrove was not to know at the time when he made his report that those notes would not become evidence in the hearing. The absence of the notes provides a good reason for rejecting any opinions that depended solely on Constable Magee's reported inability to locate any skid marks. It does not seem to me to be a basis for criticising Mr Wingrove's approach to his giving of evidence. Mr Murphy himself said that the brakes locked and his fourteen tonne truck slid. That is, it was an uncontested fact at the hearing that the truck had skidded.
62 The trial judge said that another assumption for which there was no support was Mr Wingrove's statement that:
"Had the driver of the vehicle that collided with the plaintiff had a distance in the order of 20 metres between his vehicle and the pedestrian that crossed the roadway in front of his vehicle and had the vehicle that he was driving been travelling at a speed of 40km per hour then the driver had sufficient distance to stop without incident had the driver been paying attention to the surrounding traffic and keeping a proper lookout in these circumstances. "
63 It is not clear to me why the foregoing statement is a matter for criticism. The speed of 40 km per hour was one given by the respondent in his statement to the police. Mr Wingrove's opinion was that for the appellant to have run across in front of Mr Murphy's truck and for Mr Murphy to have been able to brake and miss him by three feet when, at the time Mr Murphy first saw the appellant Mr Murphy's truck was travelling at 40 to 50 kph, Mr Murphy's truck must have been considerably further back from the point it reached at the time it missed the respondent by three feet than Mr Murphy remembered in his evidence. This is an inevitable conclusion once it is accepted, as the trial judge accepted, that Mr Murphy's truck was travelling at the speed he stated in evidence at the time when he first saw the appellant. The trial judge saw that this must be so when he said that he thought that Mr Murphy's "estimates of time and distance are perhaps shorter than what really happened", but he does not appear to have thought it necessary to examine the possibilities opened up by this obvious truth, (that is, obvious truth once 40 kph was accepted.) Mr Wingrove's oral evidence was to the effect in various places that Mr Murphy's truck must have been at least twenty metres away from the line made by the appellant as he crossed the road when he first saw him. If that opinion, which was a matter of calculation based on facts open to the judge to find, was approximately correct, then the respondent's truck must have been at least the same distance away from the point where it struck the appellant.
64 The final part of the "assumption" criticised by the trial judge seems to me to have been the statement of an opinion well within the competence of Mr Wingrove if the facts upon which he was relying in the earlier part of the "assumption" were accepted. I do not see that the putting forward by Mr Wingrove of this opinion contributes to his characterisation as someone wrongly assuming the role of advocate.
65 The trial judge then said that in addition to the undisputed facts in the case he made the following findings of fact:
"(1) That the defendant was travelling at about 40-50km per hour shortly before the accident occurred.
(2) That at that time the front of the defendant's truck was approximately abreast of the rear of the Mack truck.
(3) That the plaintiff did not see the defendant's motor vehicle and the defendant did not see the plaintiff until very shortly before the collision occurred.
(4) The reason for such failure was the fact that the view of each of the other was completely obscured by the Mack truck until the plaintiff had run across the path of the Mack truck.
(5) I accept as fact the matters set out in the defendant's statement, Exhibit 9.
(6) I also accept as a reasonably accurate summary of the facts, from the viewpoint of Mr Murphy, that which is stated in his statement to the police officer, Exhibit 2.
(7) I find that the evidence does not support any adverse finding against the defendant as to speed or lookout."
66 Number (7) in the additional findings of fact seems to me to be a finding which if sound, would be decisive in the respondent's favour, since the principal argument for the appellant relied upon a form of failure to keep a proper lookout, that is, in terms of the case, failure to react to the unusual behaviour of Mr Murphy's truck just in front of the respondent. There was no clear reasoning, to this point in the trial judge's reasons, explaining why he reached the conclusion in additional finding No (7). Presumably it was to show why he reached that conclusion that he continued, immediately after making the seven additional findings, by saying:
"I return to the critical factual issues namely -
Did there emanate from Mr Murphy's truck, before the collision occurred, an audible noise such as would have been heard by the defendant and one which ought to have alerted him to the emergency created by the plaintiff running across the road in time for the defendant to brake and avoid the plaintiff?
The resolution of these issues depends principally on my assessment of the direct evidence of Mr Murphy and the expert evidence of Mr Wingrove, to the contrary. Generally speaking, I accept Mr Murphy as a truthful and reliable witness. No reason has emerged to suggest he is inclined to favour the plaintiff or the defendant. I take into account that it is likely that his estimates as to time and distance are not completely accurate and that his, more or less, contemporary statement as to the plaintiff running from the footpath is to be preferred to his sworn evidence almost 5 years later. However in my opinion such qualification is of little substance in assessing the reliability of his evidence as to whether there emanated from his vehicle, when he braked, the sort of noise to which Mr Wingrove refers. I bear in mind he was an experienced truck driver, familiar with the truck he was driving. On the other hand Mr Wingrove's opinion as to the wheel chatter and other noise is based on his experience of testing other vehicles, albeit many other vehicles over many years. However he has not tested the reaction of this particular vehicle in such circumstances as existed on Botany Road on that day.
I am unable to prefer the evidence of Mr Wingrove on this critical issue."
67 Consequentially upon the reasoning in the passage just set out, the trial judge found a verdict for the respondent.
68 In the critical passage the trial judge appears to have directed himself to the issue which he saw as joined between Mr Murphy and Mr Wingrove, did Mr Murphy's truck make significant noise when it skidded. There are two aspects of this approach by the trial judge with which I respectfully disagree. First, to reject Mr Wingrove's opinion that there must have been some significant noise in the circumstances on the basis that he had not tested either the particular truck or a truck of that manufacture, seems to me to be open to question. Mr Wingrove's experience over many years included experience with trucks having substantially similar characteristics to Mr Murphy's truck. Ordinarily I would not pay much attention to a point of this kind in an area where a trial judge has wide powers and duties in regard to assessment of witnesses who give different evidence on an issue. However, in the present case the seizing upon what appears to me, with respect, to be rather a weak point to justify non acceptance of an expert's opinion (which opinion also seemed to accord with ordinary experience) rather supports the view that the trial judge was casting around for reasons to justify disregarding the opinions of an expert which he had earlier described as nonsense.
69 The other (and more important) aspect of the critical passage which seems to me to be faulty is that the trial judge dealt only with the noise ingredient of the behaviour of Mr Murphy's truck after Mr Murphy "jumped on" his brakes. He did not deal with the full substance of the submission, which was that Mr Murphy's truck suddenly locked its brakes and skidded as it lost speed, causing smoke (according to Mr Murphy) and noise (denied by Mr Murphy but asserted as an opinion by Mr Wingrove). Accepting Mr Murphy's evidence about noise, the trial judge nevertheless still had to consider the other aspects of the truck's behaviour, about which there had been no contest before him. He did not do so and thus failed to deal with what was really the principal point of the appellant's (difficult) case.
70 If the appellant had been arguing that there should be a new trial because of the trial judge's failure to deal with a critical part of the appellant's case, I may have been disposed to uphold the appeal on that frequent and straightforward ground of appeal. However, no such ground was relied on. Counsel for the respondent therefore had no need to deal with a new trial argument in that form. It is conceivable he may have advanced a further or different argument in answer to such a ground, which this court has had no occasion to consider. In any event, this court cannot deal with the appeal on that basis. The only ground of appeal the court is concerned with is the ostensible bias point relied on by the appellant.
71 The ruling authority that states the test for deciding whether a judge's actions support an assertion of ostensible bias is Webb v The Queen; Hay v The Queen (1994) 181 CLR 41. In that case, in a joint opinion, Mason CJ and McHugh J adopted the test which they said had been used many times in the High Court namely "whether fair minded people might reasonably apprehend or suspect that the judge had prejudged or might prejudge the case" (at 47). They said the court had specifically rejected the real likelihood of bias test, and that the principle behind the test consistently adopted by the High Court was the "fundamental importance that justice not only be done but should manifestly and undoubtedly be seen to be done"(also at 47). Citing R v Sussex Justices [1924] 1 KB 256 at 259; Re JRL (1986) 161 CLR at 351-2.
72 Later they said:
"... In considering whether an allegation of bias on the part of a judge has been made out, the public perception of the judiciary is not advanced by attributing to a fair minded member of the public a knowledge of the law and the judicial process which ordinary experience suggests is not the case. That does not mean that the trial judge's opinions and findings are irrelevant. A fair-minded and informed observer would place great weight on the judge's view of the facts. Indeed, in many cases the fair minded observer would be bound to evaluate the incident in terms of the judge's findings. " (at 52)
73 Brennan J agreed with the upholding by Mason CJ and McHugh J of the reasonable apprehension test in contrast to the real likelihood of bias test (at 57).
74 Deane J was of the same view. He said that the preferred test:
"... directly reflects its rationale, namely, that it is of fundamental importance that the parties to litigation and the general public have full confidence in the integrity, including the impartiality, of those entrusted with the administration of justice. " (at 68)
75 Toohey J was also of the same opinion although he thought there might "be in truth little difference in the application of the two tests" (at 88).
76 The fact that difficulties sometimes arise in the application of the test is shown by the fact that in Webb although all the judges were in substantial agreement on the proper test to be applied, they were divided as to the result, Mason CJ, McHugh J and Toohey J concluding that the appeals should be dismissed, Brennan J and Deane J each being of the view they should be upheld.
77 Before coming to apply the test to the circumstances of the present case, I think it necessary to point out that although the term "bias" is used both in the actual bias doctrine and in the "reasonable apprehension of bias" doctrine, the two doctrines have quite distinct bases. A judge is disqualified because of actual bias whether or not it is apparent at the time. Court proceedings conducted with every appearance of fairness and propriety may nevertheless result in a judgment which will be set aside upon later discovery of actual bias on the part of the judge, even if the judgment be otherwise legally correct. Reasonable apprehension of bias on the other hand is concerned with the appearance of the litigation in court as the proceedings move towards judgment.
78 Reasonable apprehension of bias may arise in different ways. Incidents may occur in the course of the proceedings which create such an apprehension of bias as will be incurable notwithstanding subsequent irreproachable behaviour on the part of the judge. Sometimes light will be cast on happenings in the course of proceedings, not of such a clear cut character, but causing the beginning of apprehension, by the opinions and findings stated in the judge's reasons for judgment. The light cast may lead to the extinction or confirmation of the earlier inchoate apprehension. This is made clear in the statement by Mason CJ and McHugh J in Webb that in many cases the fair minded observer would be bound to evaluate the incident in terms of the judge's findings.
79 When a court must consider therefore whether a claim of reasonable apprehension of bias is made out on appeal by a losing party, the question is not one of fact as it is in an actual bias case (where the question is was there bias in fact) but one of evaluation which can in cases such as the present be described without use of the word bias at all, as being an evaluation the court must make of whether a fair minded observer, seeing the incidents complained of and evaluating them in terms of the judge's findings, would be of the view that it was manifest that justice had been done.
80 In an effort to carry out the required evaluation, I have set out the materials in the present case which I think "a fair minded member of the public", not having a greater knowledge of the law and the judicial process than ordinary experience suggests, would have taken into consideration after watching the trial and reading the trial judge's reasons. Although through my own eyes I see a well respected trial judge of long experience, the fair minded observer as described by Mason CJ and McHugh J would see him without my knowledge. I assume that that observer would enter the court room, knowing nothing of the judge, expecting to see fairness and impartiality, and would form a judgment primarily on what he or she saw and heard in the court room and read in the judge's reasons.
81 Trying to look at the matter in this way, I have come to the conclusion that a fair minded observer reacting reasonably would in the end have apprehended or suspected that the judge's views about expert witnesses predisposed him to the rejection of the material part of Mr Wingrove's opinions and that as a result neither those opinions, nor the reasoning process which was at the heart of them for the purposes of the case, were given the impartial consideration that was needed if justice was not only to be done but also manifestly and undoubtedly was to be seen to be done. In my opinion therefore the verdict and judgment in favour of the respondent should be set aside and a new trial should be ordered.
82 A second ground of appeal was relied upon by the appellant, although his counsel said it was less important than the first. This concerned the trial judge's statement that he held a firm view about s 80 of the Evidence Act. It was submitted that this view of the trial judge was wrong.
83 There are two difficulties in dealing with this point. One is that (so far as I can see) it never became clear precisely what the judge's view was, beyond, perhaps, that it was similar to that of Levine J in O'Brien v Gillespie. The other is that very little of the three reports of Mr Wingrove was, in the event, ruled to be inadmissible. The subject matter of the paragraphs excluded by the trial judge in fact came to be fairly fully discussed in the oral evidence of Mr Wingrove in any event. That is, the evidence in the end was not excluded. To the extent that the judge's view of s 80 affected the trial, it affected the way he approached the weight to be given to Mr Wingrove's opinions.
84 As to the judge's approach to s 80, if he was intending to indicate agreement with what was said by Levine J in O'Brien v Gillespie I would make the following comment. That case was concerned with evidence given by a solicitor purporting to express opinions about whether what had been done by another solicitor amounted to professional negligence. So far as concerned s 80, Levine J appears to have adopted what was said by Lindgren J in All State Life Insurance Co v Australia & New Zealand Banking Group Ltd (1996) 137 ALR 138, another case dealing with the tender of expert evidence by a lawyer on a legal question. The part of Lindgren J's opinion in that case relevant for present purposes was his view that:
"... reference to the legislative background shows that the reference in s 80(a) to the ' ultimate issue ' was intended to refer to opinion by non-legal expert witnesses or non-expert witnesses on an ultimate issue of fact expressed in language which applies a legal standard. "
85 Thus neither Levine J nor Lindgren J was dealing with the application of s 80 to expert opinions of non-lawyers. If the trial judge was relying on the views of Levine J and Lindgren J, then he was relying on opinions not applicable to the case before him. Further, he may have been overlooking s 80(b), (for which see n 3 above).
86 However, I do not think I should say any more than this about the s 80 point in the present case. It was not fully argued, and it is not necessary to express a considered view on it.
87 In my opinion the appeal should be upheld, the verdict and judgment below set aside, a new trial ordered, the costs of the first trial to abide the decision of the judge who hears the second trial and the costs of the appeal to be borne by the respondent.
88 MEAGHER JA: I have read Priestley JA's judgment in draft. I disagree with it. It seems to be plainly wrong to say, in the circumstances of the case and on the authorities as they stand, both of which are adequately summarized by Priestley JA, that a reasonable lay observer would have thought Sinclair DCJ's behaviour tainted by bias.
89 Certainly Sinclair DCJ made it plain, in fairly unambiguous terms, that he took an initial dislike to the sort of evidence Mr Wingrove was giving. But the reasonable lay observer would also have noted that his Honour's initial dislike was treated by his Honour as no more than a passing reaction. His Honour did not reject Mr Wingrove's evidence, but admitted almost all of it; his Honour invited, and received, debate on the value of that evidence.
90 The lay observer would note, of course, that his Honour, in finding for the defendant, made some remarks adverse to Mr Wingrove. However, he would also have noted that they were reasoned and not intuitive; that they proceeded from his Honour's evaluation of the evidence; and that that evaluation was not merely a thoughtless expression of some pre-conceived view.
91 Moreover, the reasonable lay observer would note how sensible his Honour's reasoning was. The main point at issue between the parties was whether Mr Murphy's truck made a noise when it braked; Mr Murphy, who had owned and operated the truck for about seven years, said it did not; his Honour accepted that evidence; Mr Wingrove, who had never seen, much less operated, Mr Murphy's truck, said it would have. The lay observer would have thought it wise for his Honour to prefer actuality to theory. He would also have wondered why his Honour was hearing the case unless it was to prefer one witness over another. Finally he would have noticed that his Honour's judgment was founded on demeanour: his Honour found that Mr Wingrove "prevaricated" in giving evidence about the speed at which the plaintiff was walking; and if he had heard Mr Wingrove giving that evidence he would have agreed with his Honour.
92 I would dismiss the appeal with costs.