Warren v Coombes

High Court of Australia Gibbs A.C.J. Stephen, Jacobs, Murphy and Aickin JJ. Warren v Coombes [1979] HCA 9

ORDER Appeal allowed with costs. Order that the judgment of the Supreme Court of New South Wales (Court of Appeal) be set aside and that in lieu thereof it be ordered:

(1) that the appeal to that Court be allowed with costs; and

(2) that the judgment of Yeldham J. be set aside and that in lieu thereof judgment be entered for the plaintiff for $80,000 with costs.

1979, March 13 Gibbs A.C.J., Jacobs and Murphy JJ.

On the 6th March 1969 the appellant, a boy of almost thirteen years of age, was seriously injured when the bicycle which he was riding came into collision with a car driven by the first respondent and owned by the second respondent. The appellant brought an action in the Supreme Court of New South Wales to recover damages for his injuries which he alleged were due to the negligent driving of the first respondent. The trial judge (Yeldham J.) found that the appellant had not established negligence on the part of the first respondent, but, very properly, went on to make an assessment of damages in case an appellate court should take a different view. He assessed the appellant's damages at $160,000 but gave judgment for the respondents. On appeal to the Court of Appeal was dismissed by a majority (Hutley and Samuels JJ.A., Moffitt P. dissenting). The appellant now appeals to this Court by special leave.

At the trial there was a conflict of testimony between the witnesses called for the appellant and those called for the respondents. The action was not tried until March 1976 and it would have been surprising if the witnesses had come to court with a fresh recollection of the circumstances of a collision that had occurred seven years before. The learned trial judge did not accept the evidence given by the appellant and those of his witnesses who were present when the collision occurred, and it is therefore unnecessary to recount their version of events, which the learned trial judge rejected. Perhaps, for completeness, it should be said that the learned trial judge did rely on some parts of the evidence given by those witnesses as corroborating certain evidence in the respondents' case which he accepted. However, there was one important witness called for the appellant whose evidence the learned trial judge did accept. This was the appellant's father, who gave evidence as to the position of marks on the roadway which the learned trial judge found were made by the wheels of the car driven by the first respondent (to whom we shall henceforth, for convenience, refer simply as "the respondent"). For the defence, evidence was given by the respondent himself and by four persons who had been passengers in his car at the time of the collision. As to this evidence the learned trial judge said: "Notwithstanding some discrepancies between them and errors by some of them in their observations and in their estimates of distance, I have come to the conclusion that their versions of what occurred were given honestly and with some expceptions are basically accurate."

The collision occurred at or near the junction between Funda Crescent and Burke Road, Lalor Park. Funda Crescent slopes downhill, from south to north, to form a "T" junction with Burke Road, which rises uphill towards the junction from the east, and continues past it towards the west. At about 6.00 or 6.30 p.m. the appellant was riding his bicycle (with another boy as passenger) in a northerly direction along Funda Crescent, and the respondent was driving a Holden motor car in a westerly direction along Burke Road. Both parties were proceeding in the direction of the junction, and the respondent was on the appellant's right. Along the left-hand side of Burke Road on the eastern side of the junction (that is, on the side from which the respondent was approaching) there was a thick hedge, about 40 ft long, bordering the grounds of a house which stood on the corner of the junction. Since the footpath in Burke Road was 12 ft 10 in. in width, the hedge was about that distance back from the roadway. The learned trial judge found that the circumstances in which the collision occurred were as follows:

I find that the two boys upon the bicycle emerged into view without any warning from behind the hedge inside the fence of the house on the southwest corner of the intersection, travelling quickly and cutting the corner, and that they were on their incorrect side of the road; that the car was then travelling at between thirty to thirty-five miles per hour; that the first defendant immediately applied the brakes and the car skidded; that the point of impact was a little to the east of the prolongation of the eastern curve of Funda Crescent; and that the car travelled on a short distance after the impact, coming to rest at the spot where the tyre marks ended. The evidence satisfied me also that the cycle hit the car at an angle on its nearside front portion and that thereafter the plaintiff was thrown up on to the car and landed upon the roadway at a spot indicated by bloodstains in photographs which were tendered.

The statement that the hedge was inside the fence of the house on the south-western corner of the intersection was a slip - the house was on the south-eastern corner. The finding that the car was travelling at between 30 and 35 miles per hour was based on estimates given by the respondent's witnesses. The fact that the collision was a little to the east of the imaginary line marking the prolongation of the eastern kerb of Funda Crescent means, of course, that the car had not reached the junction when the collision occurred. The spot where the car came to rest was, as will be seen, within the intersection itself - in Burke Road at a point 49 inches to the west of that imaginary line. The blood marks were also within the intersection but further to the west. To say that the cycle hit the car on its "nearside front portion" needs a little explanation. The evidence given by the respondent and his witnesses makes it clear that the cycle hit the front of the car, between the headlights, but on the near side. The respondent himself said there was, on the Holden, a crease in the bonnet - it was of course in the centre of the bonnet - and that the car was hit between the left-hand headlight and the crease.

The wheels of the car made two marks on the surface of Burke Road, 54 inches apart. They extended for 52 ft, and ended 49 inches west of the imaginary line which marks the prolongation of the edge of the eastern footpath in Funda Crescent; in other words they began about 48 ft before the intersection. The marks went practically straight up and down the road - "practically in a dead line", according to the appellant's father. They were more or less at a constant distance from the northern gutter of Burke Road, and this distance was measured at 10 ft 10 in. The learned trial judge referred to the evidence last mentioned as follows: "Each road, as I have previously indicated, is twenty-four feet wide and hence it appears that the nearside wheels of the car were travelling about eight feet eight inches from the southern edge of the bitumen." It may not greatly matter, but the learned trial judge was not quite correct in saying that Burke Road was 24 ft wide; in fact the evidence shows that at that point the road was 24 ft 6 in. in width, so that the nearside wheels of the car were about 9 ft 2 in. from the southern edge of the bitumen. But although the learned trial judge mentions the fact that the car was travelling at this distance from the left-hand side of the roadway, he does not refer to the significance of this fact, and indeed makes a finding which seems to us to be at variance with it. After referring to evidence that the car had not reached the intersection when the accident occurred, he continued: "This lastmentioned fact, which was deposed to also by the occupants of the car, indicates that when it hit the nearside front of the vehicle, the bicycle was well upon its incorrect side of the road and had swung out of Funda Crescent close to the south-eastern corner." The evidence of the marks, which the learned trial judge accepted, shows that when the car was hit it was straddling the centre of the roadway, with part of the vehicle on its wrong side of the roadway. Since the cycle struck the front of the car between the left-hand side and the centre of the bonnet, the cycle must have been quite near to the centre of the roadway when the collision occurred - certainly on its incorrect side of the roadway, but only to the extent of a few feet at most. We should add that in the judgment of Hutley J.A. it is said that at the time of the collision the car was approximately four ft from the nearside kerb. This statement may have been based on evidence given by the respondent that the appellant was four ft out from the edge of the road when he came around the corner, but in the light of the evidence of the marks it was erroneous.

Some further evidence given by the respondent and his witnesses should also be mentioned. The respondent was questioned as to the position of the appellant when he first came into view. His answers were not altogether clear and consistent; at one stage he said that the appellant was then right on the corner, but when called on to mark the appellant's position on a photograph, he marked a spot in Funda Crescent some feet back from the corner. The passengers in the respondent's car also saw the appellant while he was still in Funda Crescent; one, Mr. R. C. Coombes, saw him appear from behind the hedge. All these witnesses agreed that the appellant was travelling on the wrong side of Funda Crescent and was cutting the corner to turn right into Burke Road and that he was moving quickly. They differed, however, in the evidence which they gave as tot he position of the car when the appellant was first seen. The marks establish that when the brakes were first applied the car was 48 ft from the corner, but of course some time had to elapse after the respondent first saw the appellant before he reacted to the emergency and applied the brakes, and if he was travelling at 30 to 35 miles per hour he must have been about 90 to 100 ft from the intersection when he first saw the appellant.

There is no doubt that the appellant was guilty of a want of reasonable care for his own safety. The question for decision, however, is whether the learned trial judge was correct in finding that the respondent was not negligent. It was said on behalf of the respondent that it was not negligent to drive in a quiet suburban street at 30 to 35 miles per hour and that it could not be inferred that the respondent had failed to keep a proper lookout, because he could not have been expected to foresee that the appellant would attempt to execute so dangerous a manoeuvre as to cut the corner and turn across the path of a vehicle which had the right of way. But in particular it was said that the question for decision was simply one of fact and that the majority of the Court of Appeal rightly deferred to the decision of the learned trial judge. It would not be enough, so it was said, that if they had been trying the case they might have drawn different inferences from the facts. So the important question arises, what is the duty of an appellate court when questions of credibility have been decided and the matter which remains for decision is what inferences should be drawn from facts which have been found and are no longer in contest?

We are concerned, of course, with an appellate tribunal to which there is an appeal by way of rehearing (Supreme Court Act, 1970 N.S.W., as amended s. 75A (5) and which has the powers and duties of the court from which the appeal is brought, including those of drawing inferences and making findings of fact (s. 75A (6) (b)). In other words the Court of Appeal is in the same position as the Court of Appeal in England and the Full Courts of the Supreme Courts of the other States. The appeal, although by way of rehearing, is conducted on the transcript of the evidence taken at the trial, and the witnesses are not called to give their evidence afresh, but the appeal is a general appeal and is not limited, for example, to questions of law. The authorities which lay down the principles which should guide a court hearing an appeal of that kind have been often and fully discussed, notably in this Court in Paterson v. Paterson [1] , but there are still differences of opinion upon the present question, which arises every day, and is fundamental to the performance of the duties of courts of appeal.

In S. S. Hontestroom v. S.S. Sagaporack [2] , Lord Sumner discussed what Lord Wright in Powell v. Streatham Manor Nursing Home [3] called "the antinomy which arises when the Court which is judge of fact has neither seen nor heard the witnesses". In such a case there is a conflict between two principles, each of which has to be given effect. The first is that the appeal is a rehearing, and, as Lord Sumner said, it is not "a mere matter of discretion to remember and take account of this fact; it is a matter of justice and of judicial obligation". The second principle, again to quote Lord Sumner, is that "not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case". The leading authorities have discussed the manner in which these principles should be applied and reconciled and have sometimes emphasized one principle rather than another, as the nature of the case has required. However, until quite recently they have not departed from the view that it is the duty of the appellate court to form an independent judgment about the proper inferences to be drawn from established facts.

1. [1927] A.C. 37, at p. 47. 2. [1935] A.C. 243, at p. 264.

In the House of Lords the relevant principles were discussed in Powell v. Streatham Manor Nursing Home [4] , a case of negligence. The decision there was held to turn on questions of credibility, and their Lordships drew attention in strong terms to the great advantage which is enjoyed by a trial judge who has seen and heard the witnesses and followed the trial through its progress, but there is nothing in the judgments that supports the view that the trial judge enjoys a similar commanding advantage in drawing inferences from established facts. The headnote in our opinion sums up correctly the effect of the judgments as follows:

Where the question at issue is the proper inference to be drawn from facts which are not in doubt, the appellate court is in as good a position to decide the question as the judge at the trial is.

But the appeal, although a rehearing, is a rehearing on documents and not, as a rule, on oral evidence; and where the judge at the trial has come to a conclusion upon the question which of the witnesses, whom he has seen and heard, are trustworthy and which are not, he is normally in a better position to judge of this matter than the appellate tribunal can be; and the appellate tribunal will generally defer to the conclusion which the trial judge has formed.

The first part of the headnote is taken from the speech of Lord Wright who, after referring to "the problem which faces the Court of Appeal when it has to act as a judge of fact on the rehearing, but finds itself "in a permanent position of disadvantage as against the trial judge" " [5] , went on: The problem in truth only arises in cases where the judge has found crucial facts on his impression of the witnesses: many, perhaps most cases, turn on inferences from facts which are not in doubt, or on documents: in all such cases the appellate court is in as good a position to decide as the trial judge. He went on to point out the great advantages enjoyed by the trial judge in a case "where the evidence is conflicting and the issue is one of fact depending on evidence". However, we do not understand him, or indeed any of their Lordships, to say that because the case is one in which there is a conflict of evidence the appellate court may not draw for itself the necessary inferences of fact once the primary facts have been determined. Of the other speeches delivered in that case we think it is necessary only to refer to that of Lord Atkin who said [6] : I wish to express my concurrence in the view that on appeals from the decision of a judge sitting without a jury the jurisdiction of the Court of Appeal is free and unrestricted. The Court has to rehear, in other words has the same right to come to decisions on the issues of fact as well as law as the trial judge. But the Court is still a Court of Appeal, and in exercising its functions is subject to the inevitable qualifications of that position. It must recognize the onus upon the appellant to satisfy it that the decision below is wrong: it must recognize the essential advantage of the trial judge in seeing the witnesses and watching their demeanour. In cases which turn on the conflicting testimony of witnesses and the belief to be reposed in them an appellate court can never recapture the initial advantage of the judge who saw and believed. The remarks of Lord Macmillan [7] are similar in effect. 1. [1935] A.C. 243. 2. [1935] A.C., at p. 267. 3. [1935] A.C., at p. 255. 4. [1935] A.C., at p. 256.

The House of Lords again considered the matter in Benmax v. Austin Motor Co. Ltd. [8] . That was a patent case, but their Lordships did not state or apply any rule peculiar to such a case and their observations as to the duty of an appellate court were quite general, and indeed some of those remarks were specifically directed to the position in negligence cases. The speeches in that case are important, and we must quote from them at some length. Viscount Simonds commenced by citing two earlier decisions of the House of Lords. He said [9] :

Fifty years ago, in Montgomerie & Co. Ltd. v. Wallace-James [10] , Lord Halsbury L.C. said: "But where no question arises as to truthfulness, and where the question is as to the proper inferences to be drawn from truthful evidence, then the original tribunal is in no better position to decide than the judges of an Appellate Court." And in Mersey Docks and Harbour Board v. Procter [11] , Lord Cave L.C. said: "The procedure on an appeal from a judge sitting without a jury is not governed by the rules applicable to a motion for a new trial after a verdict of a jury. In such a case it is the duty of the Court of Appeal to make up its own mind, not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes into question, but with full liberty to draw its own inference from the facts proved or admitted, and to decide accordingly." He went on to say that these statements were consistent with the rules of the Supreme Court which prescribe that all appeals to the Court of Appeal shall be by way of rehearing and that the Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been made. He continued [12] : This does not mean that an appellate court should lightly differ from the finding of a trial judge on a question of fact, and I would say that it would be difficult for it to do so where the finding turned solely on the credibility of a witness. But I cannot help thinking that some confusion may have arisen from failure to distinguish between the finding of a specific fact and a finding of fact which is really an inference from facts specifically found, or, as it has sometimes been said, between the perception and evaluation of facts. An example of this distinction may be seen in any case in which a plaintiff alleges negligence on the part of the defendant. Here it must first be determined what the defendant in fact did and, secondly, whether what he did amounted in the circumstances (which must also so far as relevant be found as specific facts) to negligence. A jury finds that the defendant has been negligent, and that is an end of the matter unless its verdict can be upset according to well established rules. A judge sitting without a jury would fall short of his duty if he did not first find the facts and then draw from them the inference of fact whether or not the defendant had been negligent. This is a simple illustration of a process in which it may often be difficult to say what is simple fact and what is inference from fact, or, to repeat what I have said, what is perception, what evaluation. Nor is it of any importance to do so except to explain why, as I think, different views have been expressed as to the duty of an appellate tribunal in relation to a finding by a trial judge. For I have found, on the one hand, universal reluctance to reject a finding of specific fact, particularly where the finding could be founded on the credibility or bearing of a witness, and, on the other hand, no less a willingness to form an independent opinion about the proper inference of fact, subject only to the weight which should, as a matter of course, be given to the opinion of the learned judge. But the statement of the proper function of the appellate court will be influenced by the extent to which the mind of the speaker is directed to the one or the other of the two aspects of the problem. The other members of the House were in general agreement with Viscount Simonds but Lord Reid added some remarks of his own in the course of which he said [13] : But in cases where there is no question of the credibility or reliability of any witness, and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion. Lord Somervell of Harrow said [14] : I would, as does he [Lord Simonds], respectfully differ from those who have suggested that an appeal on fact from a judge sitting alone is the same as, or should be assimilated to, an appeal from a jury. Apart from the fact that in the former case the appeal is a rehearing, juries do not, and judges in varying degrees do, give reasons for their conclusions. In a negligence action it may be clear on appeal from a judge alone how he has found what have been conveniently called the primary facts. An appellate court must be free to consider whether the judge, who has, I will assume, found for the plaintiff, applied the standard of the reasonable man, as our law prescribes, or the standard of a man of exceptional care and prescience. 1. [1955] A.C. 370. 2. [1955] A.C., at pp. 372-373. 3. [1904] A.C. 73, at p. 75. 4. [1923] A.C. 253, at pp. 258-259. 5. [1955] A.C., at pp. 373-374. 6. [1955] A.C., at p. 376. 7. [1955] A.C., at p. 377.

So far as we are aware there has been no dissent in the House of Lords since that time from those statements of principle; on the contrary they have been followed and applied. The effect of the case, so far as it concerns the present question, was stated by Lord Denning in Qualcast (Wolverhampton) Ltd. v. Haynes [15] , as follows:

Since the case of Benmax v. Austin Motor Co. Ltd. [16] the Court of Appeal no longer takes refuge in that most unsatisfactory formula: "Although we should not have come to the same conclusion ourselves, we do not think we can interfere". If the Court of Appeal would not have come to the same conclusion themselves, it does what the Court of Appeal ought to do - what it is there for - it overrules the decision. But short of that, it should accept the conclusions of fact of the tribunal of fact. 1. [1959] A.C. 743, at p. 762. 2. [1955] A.C. 370.

This Court has in a number of cases stated and applied similar principles and has recognized that where the question is whether particular inference should be drawn from proved facts the appellate court has the right and duty to decide the question for itself. The earlier cases were discussed in Paterson v. Paterson [17] and we need refer only to two cases which were not mentioned in the judgments in that case; we do so because they were cases of negligence. In Piro v. W. Foster & Co. Ltd. [18] , Latham C.J. said:

The question here is whether an inference of contributory negligence should be drawn from facts which are not in doubt. In such a case an appellate court is in as good a position to decide the question as the judge at the trial (Powell v. Streatham Manor Nursing Home [19] ). The question is one of fact, depending upon the circumstances of each case. Starke J. [20] expressed similar views. In Committee of Direction of Fruit Marketing and Schroder v. Spence [21] , Williams, Webb, Kitto and Taylor JJ., in the course of a joint judgment cited with apparent approval the statement by Lord Wright in Powell v. Streatham Manor Nursing Home [22] that in cases which turn on inferences from facts which are not in doubt the appellate court is in as good a position to decide as the trial judge. Dixon and Kitto JJ., who wrote the leading judgment in Paterson v. Paterson [23] , appear to have regarded that judgment as consistent with the speeches in Benmax v. Austin Motor Co. Ltd. [24] . In Mann v. Mann [25] , Dixon C.J. and Williams J. said: Where the question is, not what are the facts but what is the proper inference to be drawn from the facts proved, the appellate tribunal is no less competent to decide what these inferences should be than the judge who actually hears the case: Paterson v. Paterson [23] ; Benmax v. Austin Motor Co. Ltd. [24] . And in Jones v. Capaldi [26] , Dixon C.J. and McTiernan, Webb, Kitto and Taylor JJ. spoke as though the two cases laid down the same principles. 1. (1953) 89 C.L.R. 212. 2. (1943) 68 C.L.R. 313, at p. 322. 3. [1935] A.C. 243. 4. (1943) 68 C.L.R., at p. 329. 5. [1954] St. R. Qd. 295, at p. 313. 6. [1935] A.C., at p. 267. 7. (1953) 89 C.L.R. 212. 8. [1955] A.C. 370. 9. (1957) 97 C.L.R. 433, at p. 440. 10. (1953) 89 C.L.R. 212. 11. [1955] A.C. 370. 12. (1956) 98 C.L.R. 615, at p. 618.

The judgment of Barwick C.J. in Whiteley Muir & Zwanenberg Ltd. v. Kerr heralded a new approach to the question. He said [27] :

No doubt where the conclusion of the trial judge is not based upon or in any respect influenced by his opinion of witnesses orally examined before him, the appellate court is in an equal position with the trial judge as to what inferences can be drawn from the facts as proved before him. But this does not mean that the appellate court should treat the appeal as a hearing de novo. The trial judge, although not depending in any respect on the credibility of any witness, may have preferred one possible view of the primary facts to another as being in his opinion the more probable. Such a finding may, in my opinion, be disturbed by an appellate court but this should only be done if other probabilities so outweigh that chosen by the primary judge that it can be said that his conclusion was wrong. Again, the trial judge, having found the primary facts, may decide that a particular inference should be drawn from them. Here no doubt the appellate court has more room for setting aside that conclusion. But, even in that case, the fact of the trial judge's decision must be displaced. It is not enough that the appellate court would itself, if trying the matter initially, have drawn a different inference. It must be shown that the trial judge was wrong. This may be achieved by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge's decision is wrong. Since that time the matter has been the subject of some controversy. In Da Costa v. Cockburn Salvage and Trading Pty. Ltd. [29] , Barwick C.J. adhered to the view that he had expressed in Whiteley Muir & Zwanenberg Ltd. v. Kerr [30] . Windeyer J. adopted a similar approach [31] , but he went further. He said [32] that he was sceptical of applying to a finding of negligence the principle that an appeal court is as competent to determine the proper inference from proved facts as is the trial judge, and that inferences of fact from proved specific facts are logically in a different position from the evaluation or appraisal of the quality of a man's conduct, for in his opinion the evaluation of conduct in terms of reasonableness is a value judgment upon facts rather than an inference of fact. He said [33] : In short, in a case of this kind, the primary facts not being in question, I would treat the decision of the trial judge as the equivalent in all respects of the verdict of a jury, unless from his reasons it appeared that he had in some way misdirected himself. Walsh J. took a different view; he said [34] : In my opinion, it was proper in the circumstances of this case for the majority in the Full Court to give effect to the conclusion to which their Honours came upon the question whether or not it should be found that the respondent had been in breach of its duty to the appellant. The conclusion was one which did not depend upon the resolving of any conflict of evidence or even upon the evaluation of the conduct of a person who had given evidence and in respect of whom the trial judge was in a position to form general impressions which might be of assistance in deciding the matter. The conduct to be evaluated was that of the respondent, acting through servants or agents who did not give evidence. Whether or not the trial judge, when deciding whether or not the appellant had acted reasonably, had advantages of a kind which would render it difficult for an appellate court to interfere with his finding on that issue, I am of opinion that their Honours in the Full Court were not precluded from giving effect to their own conclusions on the question whether or not it had been established that the respondent had been negligent. The other members of the Court, Menzies and Gibbs JJ., decided the case on the facts. 1. (1966) 39 A.L.J.R. 505, at p. 506. 2. (1970) 124 C.L.R. 192, at p. 199. 3. (1966) 39 A.L.J.R. 505. 4. (1970) 124 C.L.R., at pp. 201, 207-208, 210. 5. (1970) 124 C.L.R., at pp. 212-213. 6. (1970) 124 C.L.R., at p. 214. 7. (1970) 124 C.L.R., at p. 217.

The principles were again discussed in Edwards v. Noble [35] . In that case the Chief Justice [36] and Windeyer J. [37] repeated and elaborated the views which they had expressed in Da Costa v. Cockburn Salvage and Trading Co. Ltd. [38] . The Chief Justice said [39] :

The question is not whether the appellate court can substitute its view of the facts which, of course, it is empowered to do: but whether it should do so. In any appeal against a finding of fact, whether or not by way of rehearing, however much the appellate court may be in an equal position with the trial judge as to the drawing of inferences, in my opinion, the appellate court ought not to reverse the finding of fact unless it is convinced that it is wrong. If that finding is a view reasonably open on the evidence, it is not enough in my opinion to warrant its reversal that the appellate court would not have been prepared on that evidence to make the same finding. Later he said [39] : But, in any case, the appellate court in my opinion is not bound to reverse the primary judge's finding of fact merely because it held a different opinion to that of the primary judge. He discussed Benmax v. Austin Motor Co. Ltd. [40] and said [41] : Thus, Benmax v. Austin Motor Co. Ltd. does decide that an appellate court is not so bound by the inferences of facts drawn by a primary judge without dependence on the credibility or bearing of witnesses that it may not examine the matter for itself. However, he went on to say [42] : But in my opinion none of these cases warrants the conclusion that an appellate court may properly set aside such a finding of fact where it is not satisfied that it is wrong, in the sense I endeavoured to explain in Whiteley Muir & Zwanenberg Ltd. v. Kerr [43] . These cases were decided against the background of a submission that an appellate court was unable to overturn a finding of fact by a judge sitting alone except in circumstances in which it would have ordered a new trial after verdict by a jury. Mersey Docks and Harbour Board v. Procter [44] was used by Lord Simonds in Benmax v. Austin Motor Co. Ltd., to support the conclusions he expressed in that case which, as I have pointed out, was a case in which the ability of an appellate court to reverse a primary judge's finding of fact was challenged.

Of course the finding of the judge sitting alone cannot be equated to the verdict of a jury. An appellate court considering such a finding is not confined to considering whether there was any material to support the finding or whether the finding was against the weight of the material properly available to the judge. The appeal is a full appeal that is to say, both as to fact and law. The relevant question here, as I have said, is whether the appellate court, as a matter of judicial restraint, ought to reverse the finding of fact.

Windeyer J. said [45] : I remain firmly of the opinion that a judge in an appeal court ought not, except in very special circumstances, to substitute for the conclusion of the trial judge his own view of what a hypothetical reasonable man would or would not have done. And that is what is involved in a reversal of a finding of negligence, or no negligence, when the facts of the occurrence are not in doubt. I do not suggest that there can never be a case in which an appeal court can properly be convinced that a trial judge was wrong in his evaluation of conduct in terms of fault, or of a degree of fault. But that, I consider, is not so merely because members of the appeal court entertain a different opinion of the character of a man's conduct, in terms of reasonableness, from that which the trial judge formed. It is only so, I think, if the reasons that he gave for his conclusion shew that he had in some way misdirected himself in law, or has altogether overlooked or mistaken some relevant fact. The other members of the Court were McTiernan, Menzies and Walsh JJ. McTiernan J. said [46] that this was not a case in which the Court of Appeal might legitimately substitute its conclusion for the judgment of the primary judge, but we do not understand that he was accepting one or other of the different views put forward in this case. Menzies J. expressed what we consider the traditional view. He said [47] : as I read the cases, the rules have remained very much as they were established over seventy years ago. They are (1) upon such an appeal the task of a court of appeal is so different from its task in considering motions for new trials after a jury verdict that it is wrong to use in relation to one the language appropriate to the other; (2) a court of appeal does not supplant the trial judge by trying the case afresh on the record; (3) a court of appeal, while having regard to the judgment appealed from, is under a duty to make up its own mind as to the facts; (4) special weight ought to be given to the judgment appealed from if anything turned upon the credibility of witnesses or any other matters as to which the judge hearing the case would have an advantage over the court of appeal; (5) in any case, even those within (4), where a court of appeal is satisfied of error on the part of the trial judge it will correct that error, even in cases where, although the reasons for the judgment of the trial judge do not themselves disclose any error, the result satisfies the court of appeal that there was undisclosed error. Walsh J. dealt with the matter as follows [48] : My first observation is that I did not intend by what I wrote in Da Costa's Case [49] to assert that in a case of the kind there being considered the appellate court should simply make its own evaluation of the reasonableness or otherwise of the conduct of a party charged with negligence, without any regard to the decision of the trial judge. I did not mean to deny the principle which has been variously stated as being that the court must be convinced that the trial judge was wrong or that it must be persuaded that he was "clearly wrong" or "plainly wrong". My statement that in that case the judges who formed the majority of the Full Court of Western Australia were not precluded from giving effect to their own conclusions was based upon my view of the circumstances of that case.

My second observation is that I have always found much difficulty in distinguishing, in a practical sense, between a conclusion that a trial judge was wrong and a conclusion that he was clearly wrong. I think, also, that in the practical application of the principle it does not matter much whether in the statement of it the word "convinced" or the word "satisfied" is used. It may be said, in my opinion, that in whatever form of words the principle is expressed, it requires, even in a case in which the credibility of witnesses is not involved and in which the contest is as to the inference or conclusion that should be drawn from a set of primary facts, that if a choice has to be made between two conclusions both of which are open on the evidence and which are fairly evenly balanced, then the decision of the trial judge should stand. The appellate court should not deal with the case as if it were trying it at first instance. But, as has often been stated on high authority, the court has a duty to make up its own mind. It will do this taking into account the judgment of the primary judge and recognizing that it ought not to be set aside merely because of a slight preference for a different view upon a question upon which two views are open and as to which there is no definte preponderance of one view over the other. Subject to that limitation and subject to the well-recognized limitations concerning conflicting testimony and the credibility of witnesses, the appellate court should give effect to its own conclusion.

My final observation upon the subject is that I do not think that a finding upon the question of negligence has a special degree of immunity from review by an appellate court not shared by other questions which may require that upon a given set of facts a conclusion or judgment be formed of such a kind that the correctness of the conclusion is not susceptible of logical proof. I am of opinion that it should not be held that a judgment which requires an evaluation of the conduct of a party against the standard or measure of the conduct of a reasonable man placed in the same position is a judgment with which an appellate court can interfere only in very special circumstances. In dealing with such a judgment it may frequently be right to take account of the fact that the question of negligence is one upon which different views will often commend themselves to different people, with the result that in some situations it may be difficult to be satisfied that the view of the trial judge was wrong. But such judgments have frequently been set aside, not because of the existence of very special circumstances, but because the appellate court after its own consideration of the facts and of the inferences that might be drawn from them has been satisfied that the conclusion of the trial judge was wrong and that effect should be given to a different conclusion.

1. (1971) 125 C.L.R. 296. 2. (1971) 125 C.L.R., at pp. 303-307. 3. (1971) 125 C.L.R., at pp. 312-315. 4. (1970) 124 C.L.R. 192. 5. (1971) 125 C.L.R., at p. 304. 6. (1971) 125 C.L.R., at p. 304. 7. [1955] A.C. 370. 8. (1971) 125 C.L.R., at pp. 305-306. 9. (1971) 125 C.L.R., at p. 306. 10. (1966) 39 A.L.J.R. 505. 11. [1923] A.C. 253. 12. (1971) 125 C.L.R., at pp. 212-313. 13. (1971) 125 C.L.R., at p. 307. 14. (1971) 125 C.L.R., at pp. 308-309. 15. (1971) 125 C.L.R., at pp. 318-319. 16. (1970) 124 C.L.R., at p. 217.

The fact that this question was so fully discussed in Edwards v. Noble [50] has made that case a valuable source of reference, and it is frequently cited. However, it is clear that Edwards v. Noble did not settle the controversy reflected in the conflicting judgments in that case. It is often difficult to decide whether observations made by a judge on appeal as to the proper attitude to be taken by the appellate court to the findings of fact made by the trial judge can be regarded as expressing the ground on which the decision of the appellate court rests. Sometimes it is unimportant what principle is applied, because a judge who takes the view that he is in as good a position as the trial judge to decide what inferences should be drawn from established facts may reach the same conclusion as a judge who believes that the decision of the trial judge should be allowed to stand notwithstanding that the judge of appeal has himself reached a different conclusion as to the proper inferences to be drawn. Often it will be unnecessary for the judge on appeal to decide between the different approaches; he may decide simply on the facts, as judges in appellate courts have done in countless cases. The dicta of Menzies J. and Walsh J. in Edwards v. Noble are opposed to those of Barwick C.J. and Windeyer J., and McTiernan J. decided the case on the facts. The case is a useful repository of statements of principle, but it is not a binding authority in favour of any particular view.

Since that time, in a number of cases, the members of this Court have expressed their own preferences for one or other of these different approaches. Barwick C.J. has continued to call for judicial restraint on the part of members of the courts of appeal, and to repeat that the decision of a trial judge should not be reversed simply because the appellate court holds a view of the facts different from that which the trial judge has taken, when that view is not unreasonable in the circumstances of the case: see O'Neill v. Chisholm [51] ; Imperial Chemical Industries of Australia and New Zealand Ltd. v. Murphy [52] ; Hicks v. Roberts [53] ; Livingstone v. Halvorsen [54] . Menzies J. in Imperial Chemical Industries of Australia and New Zealand Ltd. v. Murphy said [55] :

In this case, it is, however, hardly satisfactory to refrain from dealing with the question whether I.C.I. was negligent. For my part, I am inclined to agree with the trial judge that it was not. That, however, is hardly the matter for decision. The real question is whether it was shown that he was in error (see Edwards v. Noble [56] ).

I prefer, for reasons stated, the conclusions of the trial judge to those of the Court of Appeal. However, it is not necessary to go so far to determine this appeal. It is enough to say that, in my opinion, there was no warrant for the Court of Appeal substituting its contrary findings for those made on trial: Edwards v. Noble. The learned trial judge addressed himself to the correct issues and had ample grounds for finding as he did. I do not think that it has been shown that he was in error.

These remarks seem inconsistent with his earlier statement of principle in Edwards v. Noble, but may not have been so intended since he expressly mentioned that case and did not suggest that he resiled from the opinions which he there expressed. Walsh J., in O'Neill v. Chisholm [57] , repeated views similar to those which he had expressed in Edwards v. Noble. Jacobs J., when President of the Court of Appeal, dealt with the subject in Cashman v. Kinnear [58] . There are some passages from that judgment to which we would particularly refer. Jacobs J. said [59] : Even though a finding of negligence was open on the evidence, the question still remains whether the conclusion of the trial judge that there was negligence was right or wrong. If I finally reach the conclusion that it was right, the appeal fails. If I finally reach the conclusion that it was wrong, then in my view the appeal succeeds. No "judicial restraint" should lead me, on an appeal to which the statutory provisions of the Law Reform (Miscellaneous Provisions) Act, 1965, apply, to refrain from giving effect to that conclusion of fact to which I finally come. It appears to me, though I speak with some diffidence and with great respect, that the only stage at which "judicial restraint" can properly be exercised is upon the initial question whether or not I should arrive at a different conclusion from that of the trial judge. If I apply that restraint, as it has been expressed in many decisions of the House of Lords, the Privy Council and the High Court, I will give great weight to the conclusions of the trial judge. In cases where the credibility of witnesses is involved the weight is so great that an appellant who seeks to overturn findings of facts so based faces an almost, but not quite, insuperable task. But even in cases of the latter category the weight of the trial judge's conclusion is very great. Even if I am inclined to a different view it is likely that the weight of the trial judge's view will outweigh that inclination. If, however, on final balance it does not, then I am bound to say that the conclusion of the trial judge is wrong. Later he said [60] : Thus if by judicial restraint is meant the lack of overweening certainty in one's own opinions so that respect and weight is given to the opinion of the judge below, then it is something always to be sought. The effect of that respect and weight will vary depending upon the subject matter and will be greatest where the opinion involves a discretionary judgment and next where the subject matter is one of conclusion or evaluation drawn or made from the facts found. But in truth this quality of respect must be all pervading whether the subject be fact or law. However, if it be suggested that by judicial restraint a judge exercising his office under the Supreme Court Act, 1970, and its predecessors should restrain himself from giving effect to his own conclusion once he has, after applying to himself the mental restraint which flows by the process which I have described, finally reached that conclusion then it is in my view a suggestion contrary to that Act and its predecessors and I do not think that it should be adopted in the absence of a clear authority binding this Court. He then examined the authorities and said that he adopted and applied the reasoning of Menzies and Walsh JJ. in Edwards v. Noble [61] , and of Walsh and Gibbs JJ. in O'Neill v. Chisholm [62] and concluded by saying [63] : I, therefore, return to the facts, conscious that I must reach my own conclusion upon them, but at the same time obliged and willing to give great weight to the conclusions of the trial judge. Murphy J. has stated his views in Voulis v. Kozary [4] , Kouris v. Prospector's Motel Pty. Ltd. [5] and Livingstone v. Halvorsen [6] . In Kouris v. Prospector's Motel Pty. Ltd. he said [7] : The Full Court of the Supreme Court was also bound to come to its own conclusion on the case and if it is different from that of the trial judge to give effect to it, even if the reasoning of the trial judge did not disclose any error of principle and was open on the evidence. In Livingstone v. Halvorsen [6] , he said: The Court of Appeal correctly took into account the trial judge's assessment of the reliability of the witnesses, but then came to their own view which differed from that of the trial judge. The appellant relied on statements in some of the reasons in Edwards v. Noble [8] to support the contention that the Court of Appeal should not have interfered with the trial judge's decision. My view of the correct role of an appellate court is stated in Kouris v. Prospector's Motel Pty. Ltd. [9] . The appeal to the Court of Appeal was a true appeal. Such an appeal is not a mere exercise of supervisory jurisdiction. The parties to the appeal have a statutory right to the appellate court's decision on the merits of the case. If the appellate court is of the view that the appellant is entitled to succeed on the merits, it must not defer to the view of the primary judge. On an appeal to this Court, the parties have a constitutional right to the decision of the Court on the merits (see s. 73 of the Constitution). In Webb v. Bloch [10] , Isaacs J. had also said that this Court has a constitutional duty to form its independent opinion as to the proper inferences from evidentiary facts, but since we are at present concerned with the position of the Court of Appeal rather than with that of this Court we need not pursue that aspect of the matter. The views of Gibbs J. have been expressed in O'Neill v. Chisholm [11] ,Imperial Chemical Industries of Australia and New Zealand Ltd. v. Murphy [12] , and Flannery v. Cohuna Sewerage Authority. In that case Gibbs J. said [13] : Where the question depends on the proper inference to be drawn from undisputed facts, the appellate court, although bound to form its own conclusions, will still give proper regard to the findings of the trial judge at first instance. Since Edwards v. Noble, the statements of Walsh, Gibbs, Jacobs and Murphy JJ., although expressed in varying ways, are generally in line with the dicta of Menzies and Walsh JJ. in that case. On the other hand, the opinion of Aickin J. is nearer to that of Barwick C.J. in Edwards v. Noble. He said, in Livingstone v. Halvorsen [14] : The nature of the task which this Court faces in an appeal of this kind has been definitively stated by the Court in a number of cases in recent years and it is enough to refer to Edwards v. Noble where many of the cases are discussed. As I understand that case the question for the Court is to determine whether the Court of Appeal were justified in interfering with the decision of the trial judge. If on the facts as found by the trial judge two inferences were equally open, it would not be right for the Court of Appeal merely to substitute their own view of which inference should be drawn for that of the trial judge, though if one inference had a substantial preponderance of probability in its favour it may be justifiable to interfere with the trial judge if he took the view that the other inference should be drawn. 1. (1972) 47 A.L.J.R. 1, at p. 3. 2. (1973) 47 A.L.J.R. 122, at p. 126. 3. (1977) 16 A.L.R. 466, at p. 469. 4. (1979) 53 A.L.J.R. 50, at p. 52. 5. (1973) 47 A.L.J.R., at p. 128. 6. (1971) 125 C.L.R. 296. 7. (1972) 47 A.L.J.R., at pp. 3-4. 8. [1973] 2 N.S.W.L.R. 495. 9. [1973] 2 N.S.W.L.R., at pp. 498-499. 10. [1973] 2 N.S.W.L.R., at pp. 499-500. 11. (1971) 125 C.L.R., at pp. 308, 309, 317-319. 12. (1972) 47 A.L.J.R., at pp. 3, 4, 5. 13. [1973] 2 N.S.W.L.R., at p. 509. 14. (1975) 7 A.L.R. 126, at p. 142. 15. (1977) 19 A.L.R. 343, at pp. 357-358. 16. (1979) 53 A.L.J.R., at p. 57. 17. (1977) 19 A.L.R., at p. 357. 18. (1979) 53 A.L.J.R., at p. 57. 19. (1971) 125 C.L.R. 296. 20. (1977) 19 A.L.R. 343. 21. (1928) 41 C.L.R. 331, at p. 360. 22. (1972) 47 A.L.J.R., at p. 5. 23. (1973) 47 A.L.J.R., at p. 129. 24. (1977) 51 A.L.J.R. 135, at p. 136. 25. (1979) 53 A.L.J.R., at p. 57.

There is in our respectful opinion no authority that entitles us to depart from the doctrine expounded in this Court in cases before and including Paterson v. Paterson [15] and in the House of Lords in Benmax v. Austin Motor Co. Ltd. [16] . The balance of opinion in cases since Edwards v. Noble inclines in favour of adherence to that doctrine. Shortly expressed, the established principles are, we think, that in 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. These principles, we venture to think, are not only sound in law, but beneficial in their operation.

With the very greatest respect for the opinion of Windeyer J., we can see no reason to favour the suggestion, which he himself recognizes as heretical, that in a case of negligence, where the primary facts are not in question, the decision of the trial judge should be treated as the equivalent of the verdict of a jury. That suggestion has not found favour with any other member of this Court and we need say no more about it than that the traditional and practical reasons for the reluctance of an appellate court to interfere with the verdict of a jury do not exist where the judgment is that of a judge sitting alone; for one thing, the judge gives reasons, whereas the verdict of the jury is, as Lord Denning M.R. has said, "as inscrutable as the sphinx" (Ward v. James [17] ). Again with the greatest respect, we can see no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. To perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process. The duty of the appellate court is to decide the case - the facts as well as the law - for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment. Further there is, in our opinion, no reason in logic or policy to regard the question whether the facts found do or do not give rise to the inference that a party was negligent as one which should be treated as peculiarly within the province of the trial judge. On the contrary we should have thought that the trial judge can enjoy no significant advantage in deciding such a question. The only arguments that can be advanced in favour of the view that an appellate court should defer to the decision of the trial judge on such a question are that opinions on these matters very frequently differ, and that it is in the public interest that there should be finality in litigation. The fact that judges differ often and markedly as to what would in particular circumstances be expected of a reasonable man seems to us in itself to be a reason why no narrow view should be taken of the appellate function. The resolution of these questions by courts of appeal should lead ultimately not to uncertainty but to consistency and predictability, besides being more likely to result in the attainment of justice in individual cases. The interest of the community in the speedy termination of litigation might, no doubt, be an argument in favour of the complete abolition of appeals, although that would be far too high a price to pay merely for finality. However, if the law confers a right of appeal, the appeal should be a reality, not an illusion; if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it.

In the present case, the Court of Appeal was, and this Court is, obliged to reach its own conclusion as to the inferences to be drawn from the primary facts found by the learned trial judge. Having given due weight to the conclusion reached by the learned trial judge we are unable to agree with it. The respondent's car was not being driven as near as practicable to the correct side of the roadway - it was eight or nine feet further away from the left-hand kerb than was necessary. It appears from the facts which we have already set out that the cycle was no more than three feet from the centre of the roadway when it was hit, and it was therefore probable that if the car had been travelling in its correct position on the roadway, and if both vehicles had maintained their actual speeds and courses, no collision would have occurred. The respondent was approaching a junction the view of which was partially obscured by the hedge. A reasonable driver in his situation should have foreseen that other persons - drivers or pedestrians, adults or children - might be using those streets in a suburban residential area. We have already mentioned that the respondent must have been 90 to 100 ft from the intersection when he first saw the appellant; the fact that he could not avoid the appellant in those circumstances indicates that he was travelling at a speed which was excessive in the circumstances. The argument that the respondent could not have been expected to foresee that the appellant would be doubly negligent does not affect this conclusion; he could reasonably have foreseen that someone might appear in his path at the junction, even if he could not have foreseen the particular way in which the other person using the road would have behaved. In fact the respondent was unable to stop until he was into the intersection, notwithstanding that he actually saw the appellant, who at that time was still in Funda Crescent, travelling in a manner which indicated that he intended to cut the corner and not to yield right of way to the respondent. The proper conclusion to be drawn from the facts was that the respondent was driving in a negligent manner as he approached the intersection, having regard both to his speed and to his position on the roadway. The learned trial judge was wrong in holding that he was not negligent.

It then becomes necessary to apportion responsibility for the collision. We agree with Moffitt P. that it is difficult to assess the fault of either party as materially in excess of that of the other, and in all the circumstances it seems to us that both should be regarded as bearing equal responsibility for the collision. The appellant should therefore have judgment for 50 per cent of the amount of damages assessed.

We would allow the appeal, set aside the judgment for the respondent and give judgment for the appellant for $80,000.

I have had the advantage of reading the reasons for judgment of Aickin J. and share the views expressed by him in his analysis of the findings of the trial judge and in his observations concerning the position of the respondent's car on the roadway as it approached the point of collision. I agree both with the reasoning of the learned trial judge and with his conclusion that the respondent was not negligent. In these circumstances I need do no more than state that I would dismiss this appeal.

This is an appeal from the Court of Appeal of the Supreme Court of New South Wales brought pursuant to special leave granted by this Court on 26th August 1977. The plaintiff in the action claimed damages for negligence arising out of a collision between the bicycle which he was riding and a motor car driven by the first defendant (whom I call "the defendant") and owned by the second defendant. The accident occurred on 6th March 1969 when the appellant was almost thirteen years old, but the proceedings were no commenced until 3rd May 1974 and the hearing did not take place until 1st March 1976.

The plaintiff suffered very serious injuries including brain damage and severe physical injuries causing permanent mental and physical disability. The trial judge assessed the damages which he would have awarded if the plaintiff's cause of action had been made out, but he found that the plaintiff had not proved negligence on the part of the defendant and, accordingly, dismissed the action. There was, therefore, no basis upon which he could have considered any question of apportionment, but it was not disputed before us that if the defendant were found to be negligent, there should be a finding of contributry negligence on the part of the plaintiff.

The plaintiff appealed to the Court of Appeal (Moffitt P., Hutley and Samuels JJ.A.) which dismissed the appeal, Moffitt P. dissenting. The basis of the appeal was that the trial judge should have held that the defendant was negligent in not keeping a proper lookout and in driving at an excessive speed. The first ground was not pursued in this Court in view of the trial judge's finding that the defendant saw the plaintiff as soon as he came in sight. As to the second ground, it is necessary to examine the findings and some of the evidence. However, the question really depends on inference from the facts as found. It will be convenient to begin by stating the background facts and the findings of the trial judge.

The accident occurred in the vicinity of the intersection of Funda Crescent and Burke Road, Lalor Park. The intersection is a "T" intersection, Funda Crescent terminating at the point of the intersection. Funda Crescent was about 24 feet wide between the gutters and ran approximately north-south, Burke Road running approximately east-west. The collision occurred at or about the south-east corner. On that corner there was a house facing west into Funda Crescent having a frontage of 40 feet to Burke Road with a hedge inside the fence along that frontage. Between the gutter in Burke Road and that fence there was a footpath area approximately 12 ft 10 in. wide, although there was at the time no paved footpath. In Funda Crescent there was a footpath area 12 ft 10 in. wide, again with no paved footpath.

The accident occurred between 6.00 and 6.30 in the evening and, as the trial judge found, visibility was quite good, there being no need for headlights or parking lights. The evidence showed that sunset was at 6.26 p.m.

The plaintiff and a friend slightly younger than him left his home in Funda Crescent, which was about six houses up from the corner, in order to take his friend home. The plaintiff was riding the bicycle and his friend riding on the luggage carrier. The plaintiff proceeded in a northerly direction down to the intersection with Burke Road. The defendant had set out with four passengers in his car, two in the front seat and two in the back, from Ennis Street, which was the next street entering Burke Road in an easterly direction from the corner of Funda Crescent. He drove to the corner and turned left and proceeded uphill along Burke Road. The trial judge said: "Burke Road at that point is uphill although Mrs. Salter described it as "a slight incline" and according to Mr. Warren, "you wouldn't call it steep but it is up." " The defendant was asked in cross examination, "But it is a substantial upgrade?" and answered, "It is a steep upgrade." Funda Crescent sloped downhill from the plaintiff's home to the corner, but the angle of neither slope was measured. In addition the roadway of Funda Crescent, at the point where it met Burke Road sloped downards from west to east, and conformed to the slope of Burke Road. The defendant said that he had accelerated up the hill and had just changed into top gear when he saw the plaintiff emerge from Funda Crescent. He said that he immediately braked as hard as he could, but nonetheless the collision occurred. He also said that he was going at a speed which he estimated between 25 and 35 miles per hour, other witnesses estimating at between 30 and 35 miles per hour. The process of braking in that manner produced skid marks on the road, which were measured and their location is not in contest. They stretched over a distance of 52 ft and ran almost directly up Burke Road. The tyre mark on the northern side was 10 ft 10 in. from the line where the bitumen of the road and the concrete gutter meet and the two tyre marks were 54 inches apart measured from the outer edges. The marks terminated at a point 49 inches west of the prolongation of the eastern kerb of Funda Crescent. On this basis it appears that the forward end of the skid marks was 16 ft 11 inches from the fence line of the corner house, from which it follows that they began some 4 ft from the beginning of the Burke Road fence of that house. From the measured width of Burke Road, it appears that the nearside wheels of the car would have been about 8 ft 8 inches from the southern edge of the bitumen. There was no evidence as to the overall length or width of the car.

There were some discrepancies between the account of the actual impact as given by the defendant and by the passengers in his car, but that is not surprising since they were giving evidence of an event which had occurred some seven years previously. Indeed it would be surprising if there were not such discrepancies. The statements made to the police by all the witnesses had been destroyed in accordance with routine practice before the date of the hearing. The plaintiff and his passenger both gave evidence, but I do not need to set it out because it was rejected by the trial judge.

There were not witnesses other than the occupants of the defendant's car who were able to give any account of the incident. There was, however, a Mrs. Salter who heard the crash while she was in her garden. Her house was in John Dwyer Road, which runs off Burke Road to the north, approximately half way between Funda Crescent and Ennis Street. She said that she heard a car revving up and "sort of roaring up the road" and added, "It seemed to me to be going very fast up Burke Road". She then heard a screech of brakes and a bang, and on looking up saw the plaintiff and his bicycle in the air. She said, "Then Billy came down, and the bike hit the car and bounced back up and then hit the road". She also said that at that time the car was nearly up to the corner of Funda Crescent, and in cross examination assented to the question that, "It had not even reached the corner of Funda Crescent when you heard the bang and looked up and saw the boys in the air". The trial judge said that he preferred the evidence of the first defendant and his witnesses to that of Mrs. Salter, and that he was not prepared to infer from what she had said that the driver was travelling at a speed which was in the circumstances excessive. The defendant's witnesses had said the car engine was not revving up in any unusual way. The trial judge said, however, that the statement that she saw the plaintiff in the air and that the car was then nearly up to the corner of Funda Crescent was corroborated by evidence in the defendant's case which he accepted and that it was consistent with the marks on the roadway. She also said that she heard "a skid and a bang" and that they were almost instantaneous; presumbaly she meant that she heard a screeching of tyres and a bang caused by the collision of the bicycle and the car. The trial judge made no comment about that evidence.

The evidence given for the defendant was given by the defendant himself and each of the four passengers. The defendant, after giving the account of the beginning of his journey to which I have referred above, said that he had just changed into top gear when he saw the boy on the bicycle and he was then just before the corner house, i.e. just before the beginning of the hedge. He said that he did not see the second boy at that stage.

The trial judge made a number of findings of fact which it is convenient to set out expressly. The first was that the evidence of the plaintiff and of his passenger should be rejected and so should the evidence of the plaintiff's mother in so far as it suggested that the boys on the bicycle were on the left-hand side of the road of Funda Crescent as far down as the house second from the corner. The second was that he preferred the evidence of the defendant and his witnesses to that of Mrs. Salter. The third was that he accepted the evidence of the plaintiff's father with respect to the position and length of the tyre marks on the road (to which I have referred above) and found that they were made by the wheels of the defendant's car. The fourth he expressed by saying, as to the defendant's witnesses, "Notwithstanding some discrepancies between them and errors by some of them in their observations and in their estimates of distance, I have come to the conclusion that their versions of what occurred were given honestly and with some exceptions are basically accurate". The fifth was that the two boys on the bicycle emerged into view without any warning from behind the hedge of the house on the south-east corner, travelling quickly and cutting the corner and that they were on the incorrect side of the road. The sixth was that the car was travelling at between 30 and 35 miles per hour, and that the defendant applied the brakes immediately he saw the plaintiff and that the car skidded. The seventh was that the point of impact was a little to the east of the pronlongation of the eastern kerb of Funda Crescent, and that the car travelled on a short distance after the impact, coming to rest at the spot where the tyre marks ended. The eighth was that the bicycle hit the car at an angle on its near side front portion and that thereafter the plaintiff was thrown up on to the car and landed on the roadway at the point indicated by blood stains in the photographs which were tendered, i.e. head of the car and on the northern side of Burke Road.

The trial judge said that those findings, which he made from the evidence in the defendant's case, were corroborated by the failure of the two boys to see or hear the defendant's car, which was there clearly to be seen, at any stage before the collision; by the position of the skid marks, and by the evidence of Mrs. Salter that the car had not reached the intersection when the accident occurred. He said that the fact that the car had not reached the intersection was deposed to also by the occupants of the car and that this indicated that when it hit the nearside front of the vehicle the bicycle was well on its incorrect side of the road and had swung out of Funda Crescent close to the south-eastern corner.

The trial judge also referred to the submission that the skid marks indicated that the speed of the car was excessive in the circumstances, but he was not prepared to draw that inference and said no evidence was called to support such a conclusion. He said that even if it were permissible to consult a table of stopping distances he did not find in it anything which would oblige him to reject the oral evidence of speed which he had referred to. He did not consider that a speed of 30 to 35 miles per hour was in the circumstances excessive and rejected the argument that the defendant in a closely settled area should have expected that a bicycle might suddenly emerge without stopping on his left hand side and from behind the hedge. He regarded that argument as unrealistic. He also rejected the argument that the first defendant failed to keep a proper lookout and said that he was satisfied that as soon as the bicycle emerged into view it was seen and the brakes were applied as soon as possible.

In the Court of Appeal the principal argument was that the evidence was such that the trial judge was bound to find negligence on the part of the defendant.

In his dissenting judgment Moffitt P. in dealing with the question of evidence of speed and the judge's observations about the nature of the duty said:

When the common law duty of care is considered, the different questions which arise at firstly, as to the type of occurrences the driver should reasonably anticipate might happen, and secondly, having regard thereto, the speed at which he should drive so as to enable him to take reasonable steps to avoid injury to others from such an occurrence. Where there is a blind or partly obscured intersection, as in many other situations of possible danger met in the course of driving a motor vehicle, the duty of care is not limited to risk of foreseeing injury to others on the assumption that they will act ideally or without negligence. In determining what speed is reasonable approaching a place of probable danger, it is relevant to consider the type of danger in a general way which should be anticipated.

There is in that passage a significant change in language which, with due respect, affects the significance of what is being said. That is the shift from "possible danger" to "probable danger". The question whether this particular intersection was one of "possible danger" or of "probable danger" was not directly adverted to in any of the evidence and indeed no evidence from experienced police officers, highway engineers or other experts was called as to the proper classification of this intersection in this respect. No doubt it is a question of fact which a judge or jury can properly decide upon such evidence as is available, including evidence as to the physical configuration, the extent of visibility from one road to another and the presence or absence of any physical obstructions to what would otherwise be the usual extent of visibility when driving along one suburban street towards and across a "T" intersection on the driver's left hand. So far as appears from the trial judge's reasons for judgment no submission was made to him that this was a place of probable danger and indeed his judgment is inconsistent with it being so regarded. Whether Moffitt P. intended this significant change in the passage which I have quoted may perhaps be doubtful, but it does appear from the balance of his judgment that he did treat the corner as being a source of probable danger. He gives no reason for that view other than indirectly referring to the fact that there was somewhat limited visibility because of the hedge, nor does he elsewhere refer to the distinction between possible and probable danger.

With due respect to the learned President I am unable to agree that this intersection could be described as "a place of probable danger". That must mean that it was more likely than not that a bicycle or motor vehicle would emerge without stopping or on the wrong side of the road, or both. That it was a place of "possible danger" is no doubt plain enough because that must be true of all intersections. Moreoever, if this was a corner where the visibility for those proceeding in a westerly direction was somewhat less than one would normally find because of the presence of the hedge, that also might be a source of possible danger. In cross examination the defendant said the hedge was about five feet high and assented to the proposition that the hedge was "well back inside the fence". There was no evidence of any measurements of its height, thickness or position. There was one contemporary photograph in evidence which shows that there were still gaps between the trees, but it would have required expert interpretation with knowledge of the position and level from which it was taken before a view could be formed as to how far inside the fence it was. There was no such expert evidence. Absence of evidence as to its height and thickness at the time makes it impossible to form a view as to the extent (if any) of the reduction in visibility.

The trial judge did not find that this intersection was a source of probable danger and, in my opinion, there was no evidence on which any such finding could have been made.

It is, in my opinion, correct to say that it was reasonably foreseeable that a bicycle or car might emerge from Funda Crescent without giving way or stopping and that was a risk to be guarded against. However, it is, in my opinion, also correct to say that it was not reasonably foreseeable that a bicycle, or car might emerge, not only without stopping, but also on the wrong side of Funda Crescent turning into Burke Road on its wrong side, and at a considerable speed. The latter view is, I think, in substance the view taken by the trial judge. No numerical estimate of the speed of the bicycle was attempted, no doubt rightly so, but the trial judge accepted the evidence of the defendant's witnesses that it was travelling fast, both northward and eastward in Funda Crescent.

I do not think that the traffic regulations as to right of way and like matters are of any significance in the present case. I do not regard the trial judge as having fallen into any error in this respect, nor do I find any assistance in the numerous cases which have dealt with this matter.

Some reliance was placed on the fact that the car was being driven with its offside wheels somewhat on the wrong side of the notional centre line. The eivdence was that there were no other vehicles on the road at that time. In my opinion that did not constitute neglligence in the circumstances of this case and I do not regard it as contributing to the accident. If in fact there was less than usual visibility at this corner, it may well be that to drive at an increased distance from the kerb would be a reasonable precaution so long as it was safe with respect to other traffic in Burke Road. It is well settled that the question of negligence or no negligence is to be regarded as one of fact, notwithstanding that it involves questions of inference and judgment. In a jury trial it is a matter for the jury alone. In a trial by a judge alone, a finding of negligence may differ from the finding of what may be called "objective facts" such as, for example, the location of a point of impact which may depend on the trial judge's view as to the reliability of the witnesses. A finding of negligence, however, involves the measuring of the defendant's conduct in the circumstances as found against the legal standard of the conduct expected of a reasonable man. The application of that criterion to a given set of circumstances may well leave open differing views as to negligence or no negligence, as the number of dissenting judgments in this field well illustrates.

Since writing the above I have had the advantage of reading the joint reasons for judgment of Gibbs, Jacobs and Murphy JJ. in which they examine the cases dealing with the function of an appellate court in hearing an appeal on questions (including inferences) of fact from a decision of a judge sitting without a jury. Some of those cases were referred to very briefly in the course of argument, but it cannot be said that the differences between the two approaches referred to in the joint judgment were investigated or the matter fully argued. In those circumstances I do not feel that I should investigate the matter for myself and express a concluded opinion on it unless it were necessary to do so in order to decide the present appeal. On these facts, however, I do not find it necessary to choose between the opposing views or to consider the extent and nature of the difference between them.

In the present case it is in my opinion clear that on the evidence the trial judge could have found, as he did, that there was no negligence on the part of the driver and accordingly that the appeal cannot be disposed of on the basis that his finding was not open on the evidence. There is, however, evidence on which the trial judge could have found that the driver was negligent.

On the view adopted in the joint judgment it is for each member of this Court to consider whether he would himself conclude that there was negligence on the facts as found, disregarding evidence rejected by the trial judge.

In the present case I prefer the view of the trial judge that the driver of the car was not negligent and I agree with his reasons for that conclusion. I would, therefore, dismiss the appeal.