This is a classic credibility finding. It cannot be shown that the trial judge failed to use or palpably misused his advantage, or that he acted on evidence which was inconsistent with facts incontrovertibly established. Nor that his finding of the existence of diesel on the roadway was glaringly improbable or that the evidence of Cottam and Taket to that effect was glaringly improbable. ( Devries v Australian National Railways) (1992 -1993) 177 CLR 472 at 479).
23 Examining the whole of the relevant evidence with care, including that of the police officer and Mr Till, does not lead to the court intervening. The appellant contends that the trial judge overlooked a substantial body of evidence and failed to give sufficient attention to the evidence of Mr Till and Constable Wiggins. I do not see how it can be said that his Honour overlooked a substantial body of evidence. His Honour had regard to the evidence of Mr Till and the officer. He distinguished Mr Till's evidence and it cannot be said that this was not open. He did not accept the whole of the officer's evidence and, on the crucial issue of the extent of the diesel on the roadway, he preferred the evidence of the plaintiff's witnesses. In doing so, it cannot be said that his Honour infringed the principles laid down in the authorities. Accordingly, his Honour's findings upon the diesel on the roadway must stand.
24 However, there is one particularly important aspect of the evidence of the diesel spill which his Honour did not address at all. The accident occurred at 7.30 pm but the first direct observation of diesel oil on the roadway is from Messrs Cottam and Taket at about midnight. That is, some 4 ½ hours after the accident. Their evidence did not establish that the diesel was on the roadway at the time of the accident. It was possible that the oil was deposited on the roadway at any time between 7.30 pm and midnight. Could an inference be drawn from the evidence, including the observations of Cottam and Taket, that the diesel was present on the roadway at 7.30 pm and caused the plaintiff to have the accident? This is not an issue which it appears that his Honour considered. Having preferred the observations of the plaintiff's witnesses about the existence of diesel oil on the roadway, his Honour simply found that 'there was a wet diesel spill on the roadway'. Assuming this finding implies that the diesel was present at the time of the accident, there is a complete absence of reasoning as to how it was reasonable to infer back 4 ½ hours from midnight.
25 It was clearly a critical issue that the diesel oil be found to be on the roadway at the time of the accident at 7.30 pm. It was central to the plaintiff's case. Mere acceptance of the plaintiff's witnesses that the oil was there 4 ½ hours later does not provide evidence of the critical issue unless proper inferences can be drawn.
26 In Mifsud v Campbell (1991) 21 NSWLR 725 at 728 Samuels JA, referring to McHugh JA in Soulmezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281, noted that a failure to explain the basis of a crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done. He went on to state that:
… it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.
Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge… may promote a sense of grievance in the adversary and create a litigant who is not only "disappointed" but "disturbed" - to use the words which appear in the New Zealand case of Connell v Auckland City Council [1977] 1 NZLR 630 at 634. It tends to deny both the fact and the appearance of justice having been done. If it does, as in my opinion is the case here, then it will have worked a miscarriage of justice and have produced a mis-trial and resulted in what I would take to be an error of law which is reviewable on appeal. Whether it is an error of law or an error of fact, it seems to me a failure by the judge to do what the nature of the office requires. (at 728) [my emphasis]
27 The principle of justice being done and being seen to be done was discussed by Meagher JA in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. He said at 443-444:
… reasons need not necessarily be lengthy or elaborate: Ex parte Powter: Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN (NSW) 34 at 36. The scope of the reasons to be given is, as Mahoney JA said in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386, related "… to the function to be served by the giving of reasons". Accordingly, the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlook the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.
Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principles in North Sydney Council is that, where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial… But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824…
Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.
Whilst it is desirable to address these elements in giving reasons for the decision, it is the purpose which the reasons serve which assumes primary importance in determining the content of the reasons. That purpose must be weighed against other considerations…On the one hand, the provision of inadequate reasons can lead to a sense of injustice and a reduced appreciation or understanding of legal rights and obligations. On the other hand, an overly onerous duty to provide reasons increases costs and delay in the judicial system which has the effect of undermining public confidence…In the end, the balancing act which needs to be undertaken in considering the sufficiency of a statement of reasons involves the adoption of, at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal.
… an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice…
Another question, which need not presently be decided, is whether the failure to provide reasons or the provision of inadequate reasons constitutes either an error of law or some other appealable error. This was a question which Hope A-JA noted but found unnecessary to decide in Mifsud v Campbell (at 729). It is sufficient to note that most cases have assumed the error is one of law.
28 Whether it could be reasonably inferred from the acceptance of Cottam and Taket that the diesel was present at midnight, that it was present at the time of the accident, required consideration. On an examination of the whole of the evidence, that inference may have been open. However, we are left with a complete absence of consideration of this critical issue. Accordingly, it is my opinion that a new trial must be ordered on the issue of liability. The Court of Appeal is not in a position to substitute a finding one way or the other.
29 It follows from my conclusion that the court does not need to address the issues in the remainder of the appeal, in particular the issues of causation and contributory negligence. Indeed, in the circumstances of a new trial, it would be preferable to make no comment.
30 Accordingly, I would propose that the appeal be allowed with costs and the judgment entered for the plaintiff set aside. A new trial is ordered on liability. The costs of the first trial should abide the second trial. If qualified, the respondent is entitled to a certificate under the Suitors' Fund Act 1951 in respect of the costs of the appeal.
31 HODGSON JA: I agree with the orders proposed by Stein JA.
32 If the ultimate question in this case were whether or not there was a substantial quantity of diesel fuel on the road in the vicinity of the accident at about midnight on 16th October, the primary judge's decision in favour of this proposition could not have been challenged.
33 However, the relevant issues in this case were whether or not there was such a quantity of diesel fuel on the road at about 7.30 pm on 16th October, whether or not this caused the plaintiff's accident, and whether or not it was due to the negligence of an owner or driver or a motor vehicle in the use of operation of that vehicle.
34 The presence of a substantial quantity of diesel fuel on the road at midnight, coupled with the occurrence of the accident, could have supported an inference that the fuel was there at 7.30 pm and caused the accident. However, quite apart from the passage of 4 ½ hours, there were substantial factors against the drawing of such an inference, in particular the apparent non-detection of the fuel by Constable Wiggins and Mr. Till at 7.45 pm, and Mr Cottam's evidence that there were no skid or tyre marks coming out of the spill (and the absence of any evidence of smearing of the spill in the direction of the crash).
35 As observed by Stein JA, the primary judge gave no consideration to whether or not the inference should be drawn. Accordingly, there would need to be a new trial, subject to the following.
36 For the appellant, it was submitted that, even if such an inference could be drawn, it could not be inferred that the presence of the spill was due to the negligence of the owner or driver of a motor vehicle. There was some evidence that it could have been caused by a driver overriding the automatic cut-off of the diesel pump at a nearby garage, and thereby putting a quantity of fuel into the cavity under the flap over the pipe leading to the fuel tank; but it was submitted for the appellant that it was inconceivable that this could have caused such an extensive spill.
37 For my part, I agree with that submission. But I think the presence of diesel fuel in the quantity and location described by the plaintiffs' witnesses could support an inference that an owner or driver of a motor vehicle, by itself or its agent, had been negligent without the necessity of specifying the exact mechanism by which tis occurred. For that reason, in my opinion this Court cannot enter a verdict for the appellant on this basis.
38 There is some doubt in my mind as to whether both the inferences I have identified can be drawn with sufficient assurance to discharge the civil onus of proof in relation to the whole of what the plaintiff must prove (relevantly, negligence and causation of damage); but I think the better view is that this is possible, so that there must be a new trial, as proposed by Stein JA.