Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296 (16 November 1971)

HIGH COURT OF AUSTRALIA

EDWARDS v. NOBLE [1971] HCA 54; (1971) 125 CLR 296

Appeal - Negligence

High Court of Australia
Barwick C.J.(1), McTiernan(2), Menzies(3), Windeyer(4) and Walsh(5) JJ.

CATCHWORDS

Appeal - Trial judge's findings of fact - Functions of appellate court - Finding on issue of negligence - Whether interference with findings of fact justified.

Negligence - Highway - Collision at night between car and stationary motor cycle - Motor cycle on bitumen surface of roadway although twelve feet trafficable verge available - Failure of car driver to keep a proper lookout.

HEARING

Adelaide, 1971, September 23;
Sydney, 1971, November 16. 16:11:1971
APPEAL from the Supreme Court of South Australia.

DECISION

November 16.
The following written judgments were delivered:-
BARWICK C.J. At about 6.30 on the evening of Saturday, 5th August 1967 the Warnertown and Port Pirie in the State of South Australia. He was accompanied by a passenger who gave evidence at the subsequent trial out of which this appeal arises: but the appellant did not. However, he made a statement to a police officer. From this statement and the passenger's evidence, it appears that the car was being driven at between forty and fifty m.p.h. well on his proper side of the road. This speed was not said in itself to be in breach of any traffic regulation. He had his headlights in the dipped position in which it was said they would illuminate objects forty feet ahead of the car. He was passing oncoming cars at frequent intervals and by law was bound to keep his lights dipped when within 300 yards of a car coming in the opposite direction. It could be concluded that the frequency with which cars passed was such that the appellant may have been required to have had his lights dipped at or about the time in question or, at any rate, that it was reasonable for him in the circumstances to have had them dipped at that time. It was not said that his lights, so dipped, were in breach of the Traffic Regulations. (at p298)

2. The respondent had been driving his motor cycle, with a pillion rider as passenger upon the same road in the same direction as that in which the appellant was proceeding. He had stopped his cycle, placed it on its stand, leaving its engine running. His passenger dismounted and, according to the primary judge's finding, quite likely obscured any tail light which may have been burning on the motor cycle. The respondent himself alighted from the cycle on its near side. The cycle on its stand was on the bitument surface of the roadway although a trafficable verge about twelve feet wide was available on which to park it. (at p298)

3. As the appellant's car approached the point where the cycle was parked, his passenger became aware of the presence of man on the bitumen roadway - that person presumably was the pillion rider. According to the evidence the car was then approximately forty feet away from the person. The appellant had not at that time seen that person or the cycle. The passenger, by calling out alerted the appellant to the presence of "a man in front of us". The appellant admitted that he did not see the man until his passenger called out to him. He said he then had a "vision" of a man but didn't see the cycle itself until he was only nine or ten feet from it. It was clearly then too late to avoid an impact between the vehicles. The area of the car about the near side headlight struck some part of the motor cycle, apparently in the area of its exhaust pipe. The pillion rider was killed and the respondent injured as a result; and the car considerably damaged. There was no evidence that the impact could not have been avoided by action taken at the time the passenger observed the man on the roadway nor was there any evidence that then it could have been avoided. (at p299)

4. The respondent sued the appellant in the Supreme Court of South Australia claiming damages for his injuries caused, as he alleged, by the appellant's negligence in the management of the motor car. The trial judge (1971) 1 SASR 155 declined to find that the injuries were caused by the negligence of the appellant and dismissed the action. On appeal, the Full Court (1971) 1 SASR 155, at p 158 set aside the judgment for the appellant and substituted judgment for the respondent for one-third of the damages for the respondent's injuries, which the Full Court assessed at $38,431.80. The judgment for the respondent against the appellant was therefore for $12,810.90. (at p299)

5. The appellant now appeals to this Court. After discussion in the course of the argument of the appeal it became clear that the appellant's substantial ground of appeal was that the Full Court ought not to have interfered with the judgment of the primary judge. (at p299)

6. The learned primary judge decided that in the circumstances of the case he was not prepared to find that any negligence of the defendant caused or contributed to the plaintiff's injuries. A finding as to negligence though in truth involving matters of inference and of judgment as to the relevant quality of conduct is properly regarded as a finding of fact. Its decision was formerly within the province of the jury. Thus what was decided by the judge was a matter of fact. (at p299)

7. Basic elements which the primary judge had before him were that the appellant was driving on the bitumen portion of a wide roadway, or to use the expression of the Road Traffic Act 1961- 1967 (S.A.), "carriageway", close to the edge of that bitumen on his nearside, within the limits of speed allowed by law in that section of road with his lights in a dipped position. As I have said, it could be found that it was reasonable for him in the circumstances to proceed with his headlights in that position. There was no light visible to him to indicate the position of the respondent's motor cycle which was stationary more than twelve feet from the edge of the carriageway. The trial judge had no evidence and, in my opinion, was not bound to conclude that having regard to the relative position of the two vehicles and the speed at which the appellant's vehicle was moving that had the appellant seen the pillion rider at the same time as did his passenger he could have avoided the impact by taking any reasonable steps open to the average driver of a motor vehicle: nor did the trial judge have any evidence or, in my opinion, any basis to conclude, that during any lapse of time between the time at which the passenger became aware of the pillion rider's presence on the road and the time at which the appellant had "a vision" of the pillion rider, an opportunity to avoid the impact was lost. On the evidence it was not a necessary conclusion that the appellant ought to have seen an unlighted object on the road sooner than his passenger did. (at p300)

8. It was conceded by counsel for the respondent and, in my opinion, quite rightly that the trial judge did not fall into any error of law in his consideration of the case. Further, it is not said and, in my opinion, it could not be said that he misapprehended the evidence or failed to take into consideration any material part of it. (at p300)

9. But the Full Court set aside his finding of fact and substituted one of its own. The question is whether the Full Court ought to have done so. It must first be observed that the members of the Full Court were not unanimous as to the ground on which it was said that the appellant by his negligence caused or contributed to the respondent's injuries. (at p300)

10. Mitchell J. with whom the Chief Justice agreed held that the appellant was negligent in failing to keep a proper lookout and that the possibility of a motor cycle breaking down in such a position on the road where the respondent placed his motor cycle, with its lights extinguished ought to have been foreseen by a prudent driver. In arriving at the first of these conclusions the learned judge thought that the appellant had said that he was only nine or ten feet from the motor cycle when he had a "vision" of a man and when he first saw "an obstruction on the road consisting of both man and motor cycle". The transcript of evidence, however, in my opinion, shows that the appellant claimed to have had a vision of a man at the time his passenger called out. It was the motor cycle itself which he did not then see. Further the learned judge seems to have thought that the absence of any evidence that the appellant could not have avoided the impact if he had seen the "obstruction as soon as it was shown in his headlights" warranted the conclusion that had he seen the obstruction at the time his passenger called his attention to the presence of a man on the roadway he could have avoided the impact. But, in my opinion, the absence of any negating evidence did not provide any positive evidence of that fact. Apart from these matters of fact the learned judge thought that a prudent driver on a roadway such as that with which we are here concerned, ought to have foreseen the possibility of a vehicle which had broken down being left unlit on the bitumen rather than removed to some point on the twelve feet of trafficable though unsealed roadway. Whether or not the driver should have foreseen such an eventuality is very much a matter of opinion. The trial judge apparently was not prepared to take the view that the driver should have foreseen such an eventuality. For my part I would see no reason for concluding that in that he was wrong. (at p301)

11. The Chief Justice whilst agreeing with the reasons for judgment of Mitchell J. took occasion to deal with an argument proffered to the Full Court on behalf of the appellant to the effect that the appellant was entitled to drive along the road at that time of evening at forty to forty-five m.p.h. with dipped headlights and in doing so to rely upon the absence of an unlit vehicle or stationary obstruction or of any pedestrian or animal on the roadway or upon them removing or being removed out of his way in time to avoid any impact with him. I would agree with the Chief Justice that such a proposition put forward virtually as a matter of law was untenable. No doubt it was this proposition put on behalf of the appellant that led the Full Court into a consideration of Baker v. E. Longhurst & Sons, Ltd. (1933) 2 KB 461, at pp 467-468 and cases subsequent thereto. However, in the course of dealing with this submission the Chief Justice said this (1971) 1 SASR, at p 160 :

". . . it is negligent to drive on the assumption that lesser
and weaker traffic will abandon whatever legal rights it has
and get out of the way."

And in that connexion the learned Chief Justice reiterated his remarks in Gardner v. Della Santa (1968) SASR 345, at p 349 where he said:

"Drivers of motor vehicles are not entitled to drive at
night, or during periods of low visibility, on the assumption
that there will be no unilluminated moving objects on the road,
particularly on an unlit country road. Pedestrians and
animals are still entitled to use the Queen's highway, even
at night. Every car driver must reckon on the possibility of
their presence." (at p301)

12. The law in South Australia, as I apprehend it, is that a pedestrian using the highway must walk as near as possible to the right side of the carriageway (see s. 88(1) of the Road Traffic Act). "The 'carriageway', by s. 5 of that Act as amended is defined as:"

"3. (b) 'carriageway' means a portion of a road improved,
designed or ordinarily used for vehicular traffic, and
includes the shoulders and areas at the side or
centre of the carriageway used for the standing or
parking of vehicles (including parking embayments)
and if a road has two or more of such portions divided
by a dividing strip or strips, 'carriageway' means
each portion separately;"

Thus in the present case the twelve feet of unsealed roadway relevantly formed part of the carriageway. Indeed, a perusal of the exhibited photographs of the area where the impact occurred shows quite clearly that traffic had used the unsealed portion of the carriageway to a significant extent. It seems to me therefore that a pedestrian would have had no legal right to walk on the portion of the carriageway where the respondent's motor cycle was parked, particularly if walking with his back to the oncoming traffic. This is not to say however that a judge deciding the fact of negligence or no negligence in given circumstances ought not to consider whether in the circumstances a motorist ought to have foreseen the possibility of a pedestrian or unlighted vehicle or obstruction on the road and to have taken commensurate action. But with due respect it seems to me inappropriate to deal with the case as if the pedestrian has a legal right to walk anywhere he chooses on the carriageway. (at p302)

13. Wells J. took different ground for thinking the appellant negligent. He assumed that a measurable interval of time lapsed between the call of the passenger to the appellant and the time at which the appellant saw or had a vision of the man on the road. Further he thought that the passenger must have become aware of the presence of the man on the road some time before he actually called out to the appellant. Endeavouring to calculate the extent of these periods of time his Honour reached the conclusion that had the appellant been looking at the time his passenger first became aware of the man on the road he could have avoided the impact (1971) 1 SASR, at p 171 . With great respect for his Honour I find this an unsure basis on which to reverse a finding of no negligence by a primary judge. (at p302)

14. Though the singular advantage of the complete finality of the verdict of a properly instructed jury has been abandoned and the decision of the facts passed to a judge sitting alone, it seems to me that nonetheless the finality of a finding of fact untainted by error of law ought not lightly to be foregone. In the case of a jury trial the area of fact was readily kept distinct from the area of law. In the case of a judge sitting alone the distinction has not formally to be maintained and is prone to be blurred. It therefore becomes of paramount importance in considering the decision of a judge sitting alone to segregate what he has decided in point of fact and what matter of law has influenced that conclusion of fact or been concluded from it. The judge himself in expressing his reasons for judgment has no need to segregate the two areas though it is a good practice to do so. Since the disappearance of juries in civil cases a great number of decisions, particularly in relation to running down cases, have been reported which on a proper examination are no better than decisions in point of fact. A decision in point of fact is of no precedent value whatever. In my opinion it is a dangerous judicial course to attempt to decide one case by the analogy of the facts of another. Also great care must be exercised not to erect reasons or arguments for a conclusion of fact into propositions of law. Perhaps Baker v. E. Longhurst & Sons, Ltd. (1933) 2 KB 461 and the cases after it, afford topical examples of a failure in this respect. (at p303)

15. Here as I have said, the primary judge is not shown to have made any error of law or to have misapprehended or failed to take account of any material fact. It was not suggested either in argument or in the reasons for judgment by any of the members of the Full Court that his finding of no causative negligence was so unreasonably erroneous that it must have sprung from some unexpressed error of law. It is therefore appropriate to consider the principles which an appellate court ought to observe in considering whether or not to disturb a finding of fact untainted by error of law or misapprehension or oversight of fact. (at p303)

16. In Whiteley Muir and Zwanenberg Ltd. v. Kerr (1966) 39 ALJR 505 , I endeavoured to express my view of the case on this matter. I have no need to repeat what I there said. I affirmed that view in Da Costa v. Cockburn Salvage & Trading Pty. Ltd. [1970] HCA 43; (1970) 124 CLR 192, at p 199 . Many of the cases discussing the proper course to be taken by an appellate court when asked to reverse a finding of fact are mentioned by my brother Windeyer in his reasons for judgment in the last-mentioned case (1970) 124 CLR, at pp 206-215 . Having regard to what is there said by his Honour and by my brother Walsh (1970) 124 CLR, at pp 215-217 I would wish to add some further remarks on my own account. (at p303)

17. I do not understand anything said in the reported cases and in particular in such cases as Powell v. Streatham Manor Nursing Home (1935) AC 243 and in Benmax v. Austin Motor Co. Ltd. (1955) AC 370 to deny the proposition that an appellant to succeed in an appeal against a finding of fact made by a judge sitting alone must convince the appellate court that the primary judge was wrong in his conclusion. That the appeal may be by way of rehearing does not, in my opinion, really bear on this question. The consequence of that description of the appeal is that the appeal is one on fact as well as on law and that the appellate court in deciding it may apply the law as it may then exist: further, where additional evidence has been received it may do so in the light of that evidence along with what had been adduced before the court from which the appeal is brought. A rehearing is not however a retrial of the issues. 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. Merely differing views do not establish that either view is wrong. But in deciding that its own view is right and that of the primary judge wrong, the nature of the "fact" found by the primary judge is a matter for consideration. Many of the "facts" within the province of the jury involved elements of judgment, some evaluative aspects akin to an exercise of discretion. Perhaps the "fact" of negligence or no negligence is of this kind. Others of such facts are mere inferences from other facts or combinations of facts, though even in that case there is an element of judgment in the decision to draw or not to draw an inference or to prefer one where more than one inference is reasonably open. But, in any case, the appellate court in my opinion is not bound to reverse a primary judge's finding of fact merely because it held a different opinion to that of the primary judge. Where the members of the appellate court are themselves not of a unanimous view, there would seem to be good reason to doubt the propriety of reversing the primary judge if his finding was reasonably open on the material before him. (at p304)

18. In Powell v. Streatham Manor Nursing Home (1935) AC 243 the House of Lords was concerned with a case which before the primary judge had turned on the credibility of witnesses, seen and heard by the trial judge. It was not a case of the kind with which we have here to deal and except for the emphasis on the need for conviction in the mind of an appellate court that the primary judge was wrong it has no particular bearing on the problem with which I am dealing here and with which I dealt in Whiteley Muir and Zwanenberg Ltd. v. Kerr (1966) 39 ALJR 505 . (at p305)

19. However, as reliance is at times placed upon it it is necessary, I think, to examine further Benmax v. Austin Motor Co. Ltd. (1955) AC 370 . The appellant in that case submitted that the appellate court was bound by the inference of fact drawn by the primary judge, and that it ought not itself examine its propriety. The challenged finding was that an inventive step was involved in what was claimed to be an invention. Lord Simonds in his speech said that the appellate court ought not to be reluctant to form its own view of inferences of fact, not themselves depending on the credibility or bearing of witnesses: but he pointedly subjects the formation of that opinion to the weight to be given to the opinion of the trial judge as to the inferences to be drawn. With this view, Lords Morton, Tucker and Somervell agreed. Lord Reid after referring to the disadvantages of merely reading transcripts of evidence says:

"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."
(1955) AC, at p 376

Lord Reid refers to Lord Halsbury L.C. in Riekmann v. Thierry (1896) 14 RPC 105, at p 116 . This passage from the last-mentioned case goes no further than to say that the appellate court will not affirm the primary judge just because he has decided a matter of inferential fact in the sense in which he did: there is no such presumption that he is correct as to warrant such a course. It seems to me that in using this passage Lord Reid was dealing with the argument which had been put by the appellants, namely that the primary judge's inferences were bound to be accepted because they were findings of fact. (at p305)

20. Thus, Benmax v. Austin Motor Co. Ltd. (1955) AC 370 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. (at p306)

21. In Mersey Docks and Harbour Board v. Procter (1923) AC 253, at pp 258-259 Viscount Cave L.C. said:

"The duty of a court hearing an appeal from the decision
of a judge without a jury was clearly defined by Sir Nathaniel
Lindley M.R. in Coghlan v. Cumberland
(1898) 1 Ch 704
, and by Lord
Halsbury in Montgomerie & Co. v. Wallace-James
(1904) AC 73
, and is
no longer in doubt. 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. In the present case
there is no question of the credibility of witnesses. The
material facts, so far as they are known, are undisputed;
and the Court of Appeal was at liberty, and indeed was bound,
to draw its own inference from them." (at p306)

22. 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 and Zwanenberg Ltd. v. Kerr (1966) 39 ALJR 505 . 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 (1923) AC 253 was used by Lord Simonds in Benmax v. Austin Motor Co. Ltd. (1955) AC 370 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. (at p306)

23. 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. (at p306)

24. In the present case no particular attention is paid to this aspect of the appeal in the reasons for judgment delivered by members of the Full Court: but Mitchell J. after remarking upon the advantage which the trial judge had in observing the witnesses said this (1971) 1 SASR, at p 163 :

"But we have a duty to consider whether the inferences
from those facts drawn by the learned trial judge were
justified." (at p307)

25. In my opinion, as expressed, this was not a correct approach to the question of whether or not the finding of fact of the primary judge ought to be disturbed. The question is not whether those inferences were right but whether the appellate court is convinced that they were wrong. Cf. The Julia [1860] EngR 1272; (1860) 14 Moo PC 210, at p 235 [1860] EngR 1272; (15 ER 284, at p 293) ; S.S. Hontestroom (Owners) v. S.S. Sagaporack (Owners) (1927) AC 37, at p 47 . (at p307)

26. In my opinion, there was material on which the primary judge could have found that the appellant by his negligence caused or contributed to the respondent's injuries. If he had so found, I do not apprehend any ground on which his finding of fact could have been disturbed. But he was not bound to come to that conclusion. That, to my mind was not the only reasonable conclusion to which a tribunal of fact could come in the circumstances of the case nor, in my opinion, was there any such preponderance in favour of the view that the appellant was so negligent that it could properly be held that the primary judge was wrong in finding a verdict for the defendant. It seems to me that either view of the appellant's conduct in relation to the respondent's injuries was reasonably open on the evidence: there is in my opinion no basis for considering one view preponderates over the other. (at p307)

27. In my opinion, the findings of the primary judge ought not to have been reversed. It follows that this appeal should be allowed and the judgment in the action for the appellant restored. (at p307)

McTIERNAN J. The question in this appeal is whether the State Full Court was in error in reversing the finding of the trial judge that the defendant was not negligent and in substituting an affirmative finding on this issue. (at p307)

2. In my opinion this was not a case in which a court of appeal might legitimately substitute its conclusion for the judgment of the primary judge. (at p307)

3. The evidence shows the salient facts of the case to be as follows. The collision occurred at night on a bitumenised country road which at the scene of the accident was flat, virtually straight for a considerable distance and approximately twenty-five feet in width with a nine-foot dirt verge on each side. The plaintiff had stopped his motor cycle on the edge of the bitumen and both he and his passenger had alighted on to the bitumen from the motor cycle when they were struck by a motor vehicle driven by the defendant and proceeding in the same direction as had been the plaintiff. The defendant's speed was found not to be excessive in the circumstances. (at p308)

4. The learned trial judge stated in his judgment that "a driver in the defendant's position could not have fairly been expected to foresee the sort of obstruction that the plaintiff and his passenger and vehicle presented". (at p308)

5. The Full Court seemed to me to accept the learned trial judge's findings as to the circumstances of the accident but to reject his inference that the defendant was not negligent in his driving. In my opinion the evidence does not afford any convincing reason for rejecting that inference. It may well be that if his Honour had found that the defendant did not take proper care to avoid the collision his conclusion could not have been successfully challenged before a court of appeal. But consistently with the principles which would dictate that result it should be held, in my opinion, that the Full Court ought not to have interfered with the decision which is the subject of the present appeal. (at p308)

6. I would therefore allow the appeal. (at p308)

MENZIES J. In Paterson v. Paterson [1953] HCA 74; (1953) 89 CLR 212, at pp 218-224 Dixon C.J. and Kitto J. undertook a recapitulation of the case law relating to what were described as "the settled rules governing the manner in which a court of appeal should deal with appeals on questions of fact". Since then other judges have made other recapitulations. However, 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. (at p309)

2. Although in some cases greater refinement may be necessary, it is sufficient in most cases for a court of appeal to inquire whether, despite the advantages of the trial judge, his judgment was in error. That is the test I propose to apply here. (at p309)

3. In the first place I do not think the learned trial judge was in error in not deciding that to drive when and where the defendant was driving at a speed of forth-five to fifty m.p.h., with lights dipped to throw a beam of about forty feet, was, in itself, negligent. The Chief Justice has, in his judgment which I have had the advantage of reading, fully stated the facts of the matter and on this point I wish to do no more than express my agreement with him. (at p309)

4. It follows, therefore, that, if there were error on the part of the learned trial judge, it was in deciding that the evidence had not established that the defendant had failed to keep a proper lookout and that his failure to do so contributed to the accident. The circumstance that the defendant was travelling fairly fast with dimmed headlights against a good deal of oncoming traffic necessitated a sharp look-out. I regard as of critical importance the question whether the defendant failed in the fundamental duty of a motorist to watch where he is going, for, if there were a breach of that duty, I would have thought that there could be little doubt that, in the circumstances, it contributed to the accident. The collision occurred about three feet from the edge of the bitumen so that the defendant, had he appreciated the hazard even while about thirty feet from it, could readily enough have avoided it. (at p309)

5. The case against the defendant was, in substance, that when he first became aware of something upon the roadway in his line of travel, it was already too late for him to avoid it. To this it can be added that the defendant's first awareness of something on the roadway was the result not of his observation but of the observation of his passenger, communicated to him by a shout. The learned trial judge nevertheless found that the only cause of the accident was the negligence of the plaintiff in stopping his motor cycle upon the bitumen about twelve feet in from the edge of the roadway - including a trafficable verge of about nine feet - and remaining there to the danger of other traffic. The obstruction, in the line of the defendant's onward travel, consisted of a group comprising the plaintiff's motor cycle, the plaintiff himself and a pillion passenger. If the rear light of the motor cycle was alight - and it was not proved that it was - it seems that it could have been obscured from oncoming traffic by the position upon the roadway of the pillion passenger. At any rate, no light was seen from the defendant's car, and upon this matter there was no finding. No explanation was forthcoming why the defendant did not see the two men and the motor cycle ahead of him earlier than he did. His lights threw a beam of forty feet and yet his own estimate was that he did not see the group upon the roadway until he was about ten feet away, when he had no time to avoid a collision. (at p310)

6. The way in which his Honour approached the problem was, it seems to me, to consider whether a driver in the defendant's position could "fairly be expected to foresee the sort of obstruction that the plaintiff and his passenger and vehicle presented". His Honour found that he could not, and that conclusion was, I think, one with which a court of appeal ought not to interfere. It seems to me, with respect, however, that the conclusion did not, as his Honour seems to have thought, dispose of the case. I set out what his Honour said (1971) 1 SASR, at pp 157-158 :

"With an effective verge for the use of unlighted objects
or for emergencies, I think a driver in the defendant's
position could not fairly be expected to foresee the sort of
obstruction that the plaintiff and his passenger and vehicle
presented, and I think the plaintiff's insistence that he pulled
as far as he could onto the dirt verge is an implied recognition
of this fact.
In these circumstances I am unable to find that negligence
contributing to the plaintiff's damage has been proved against
the defendant. There will accordingly be judgment for the
defendant." (at p310)

7. The limit of a driver's duty to keep a proper look-out is hardly to be measured by considering whether he could be expected to foresee an obstruction of the kind in fact present upon the roadway in front of him. Indeed, the forseeability of the presence of such an obstruction would seem, in many cases, to have little to do with the question of whether a driver, keeping a proper look-out, would see it. Few drivers would expect to see a blazing drum of tar upon a country road, but fewer, keeping a proper look-out, would miss seeing it, did it happen to be there. The unlikelihood of a particular hazard on a busy roadway might have a bearing upon what speed was proper but not, in ordinary circumstances, upon the keeping of a proper look-out. The plaintiff did, I think, create an unlikely hazard, but the question still remained whether, in all the circumstances, a lack of a proper look-out on the part of the defendant contributed to the accident which occurred, and for this Court the question now is whether the learned trial judge was in error in attributing no part of the fault for the accident to the defendant by reason of his not seeing that hazard in time to avoid it because it was an unlikely hazard. (at p311)

8. After some hesitation, I have come to the conclusion that the learned trial judge, in seemingly basing his conclusion, that negligence contributing to the plaintiff's damage had not been proved against the defendant, upon his finding that the defendant could not fairly have been expected to foresee that the plaintiff would be where he was, was in error and that the Full Court was, for that reason, entitled to set aside the judgment for the defendant. This is not the ground upon which the Full Court in fact did so, but I have become satisfied that the error which, I think, was made did justify the setting aside of the judgement at the trial. (at p311)

9. Having decided to set aside the judgment at the trial, the Full Court did not order a new trial but the learned judges found for themselves, upon differing bases, that there had been some degree of negligence on the part of the defendant contributing to the plaintiff's damages. This finding was one which, I think, was open to the Full Court upon the evidence and I would not disturb it or the compromise assessment of damages, dictated by resolving different estimates of responsibility, which was reached with obvious difficulty by the members of the Full Court. (at p311)

10. In all the circumstances I would dismiss the appeal. (at p311)

WINDEYER J. By way of introduction, I quote from the judgment of this Court in Jones v. Capaldi [1956] HCA 37; (1956) 98 CLR 615, at pp 617-618 :

"The real question for decision . . . is whether, upon a
proper application of the rules which govern the exercise by an
appellate court of its jurisdiction to review a finding of fact,
it is a case in which the Full Court might legitimately
substitute
its conclusion for the judgement of the primary judge."

That was said in a case arising from a collision between a motor cycle and another vehicle. The trial judge had made no positive finding as to how the accident had occurred. He was therefore unable to determine the issue of negligence and, being left in doubt as to this, had dismissed the action. The Full Court of the Supreme Court of Queensland felt able to draw, from the established facts, an inference of what had in fact happened and to conclude from the facts thus inferred that the defendant had been negligent. In those circumstances this Court upheld the decision of the Full Court and in doing so referred to Paterson v. Paterson [1953] HCA 74; [1953] HCA 74; (1953) 89 CLR 212 and Benmax v. Austin Motor Co. Ltd. (1955) AC 370 . (at p312)

2. The present case is critically different. Here the learned trial judge found what had happened and held that the occurrence was solely caused by the negligence of the plaintiff, the present respondent. On appeal the Full Court reversed this, holding that both parties were negligent and that liability should be apportioned between them. Their Honours in the Full Court differed as to the measure of the apportionment. By majority they held that the plaintiff was himself responsible for two-thirds of the damage he suffered. (at p312)

3. Should the Full Court have interfered with the finding of the trial judge? I think not. I do not propose to review the evidence with a view to deciding whether or not I would myself have reached the same decision as the trial judge did. I do not think that is our task; and I do not think that it was properly a task for the Full Court. The question for this Court is not whether or not we agree with the conclusion of the trial judge, but whether or not it should have been set aside by the Full Court. I stated my view of this in what I wrote in Da Costa v. Cockburn Salvage & Trading Pty. Ltd. [1970] HCA 43; (1970) 124 CLR 192 . Nothing that I have read or heard since then has led me to change it. I have got some encouragement to adhere to it by reading the article "Appeals on Questions of Fact" by Professor D.J. Payne, published in Current Legal Problems, 1958, of which I was not aware when I wrote. 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. (at p313)

4. There are, it is true, statements in the House of Lords in the Benmax Case (1), in which a finding of negligence, which is strictly an evaluation of conduct, is described as an inference of fact: and it is said that, as such, it is susceptible of being overturned on appeal in the same way as any inference of fact properly so called. But it is noteworthy that these statements were really only illustrative dicta; for the case itself was not a negligence action. The question was whether letters patent for an invention were valid. Lord Simonds emphasized that there was no dispute about any relevant specific fact, or as to the credibility of witnesses: that the sole question was whether the proper inference from the proved facts was that the patent disclosed an inventive step. Inventiveness, as "subject matter", has produced much debate in patent cases. The question there is as to the quality of a new thing measured against a fact, prior knowledge. That is a very different question from the quality of a man's conduct measured against an hypothesis, the conduct of a reasonable man. Therefore, if it were not for the high authority of judgements of the House of Lords, and remarks in them, I would have said that the decision in the Benmax Case (1955) AC 370 is no warrant at all for judges in an appeal court making their own evaluation of conduct, and stamping it as negligent or not negligent contrary to the view of the trial judge. I would not for a moment dispute the general proposition that, when no question of credibility is involved, an appeal court is as competent as the court below to draw inferences of fact from proved facts. But I am not able to think that whether or not conduct is to be considered culpable is, in a relevant sense, an inference of fact. I appreciate, however, that Lord Simonds said (1955) AC, at p 373:

"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 . . . what is perception, what
evaluation."

And Lord Somervell of Harrow said (1955) AC, at p 377:

"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." (at p314)

5. I realize too that this view of negligence as an inference from facts found, and thus open to review by a court of appeal, gained ready recognition in the House of Lords from the time of the Benmax decision (1955) AC 370 : see, for example, Lord Goddard's remarks in the course of his judgment in Carmarthenshire County Council v. Lewis [1955] UKHL 2; (1955) AC 549, at p 561 . And in Morris v. West Hartlepool Steam Navigation Co. Ltd. (1956) AC 552 , Lord Morton of Henryton, after observing that there was no conflict between the witnesses, said (1955) AC, at p 559 :

"The case is therefore one in which the question is simply
whether the facts proved do or do not give rise to the inference
that the respondents were negligent. That question, as Lord
Halsbury said in Montgomerie & Co. Ltd. v. Wallace-James
(1904) AC 73, at p 75
'the original tribunal is in no better position to decide than
the judges of an appellate court'."

It is I trust not impertinent to observe that Lord Halsbury was not speaking of negligence. The question which led to his quoted remark was whether a right in the public to use certain land for recreation had been established by long user according to the law of Scotland. I doubt the validity of equating that issue with the qualitative evaluation of conduct as tortiously negligent. For that, I think, it is not enough that the primary judge was "in no better position to decide" than a judge on appeal. The question is always should his decision be upset? One sentence from the article by Professor Payne to which I have referred puts the problem:

"If we say that the trial judge was wrong and the House
of Lords right on an issue of this sort, it is doubtful whether
we are saying more than that the House of Lords differed from
the trial judge and that there is no appeal from the House of
Lords." (at p314)

6. The law reports in recent times have been filled with accounts of road accident cases. These illustrate that often the same facts are viewed differently by different judges concerned to determine culpability. It may seem remarkable that reasonable men should differ so often, and so markedly, as to what would in given circumstances be expected of a reasonable man. But this merely demonstrates that reasonable prudence is an indefinite criterion of conduct. From this appeals multiply; lawyers flourish; cases which turn on their own facts are reported, bringing by debatable analogies uncertainties in the practical working of the law of negligence. Compulsory insurance by the owners of motor vehicles against their liability to third parties often produces protracted litigation. Sometimes the real contest is between two insurance companies, concerned as to which should bear the loss, or how it should be divided between them. Yet the interest of the community is best served by bringing litigation speedily to finality. That can be confidently asserted without invoking the conventional Latin tag. It provides a justification for the firm maintenance of what I take to be the rule of law, namely that a decision of a trial judge on a question of fact and his opinion as to whether conduct was blameworthy are not to be set aside unless they are convincingly shewn to be wrong. And one man's opinion about blame is not shewn to be wrong simply because it is not shared by other men. If I had had to try this case I might have thought, as members of the Full Court did, that the plaintiff and the defendant should share responsibility for the accident. But that is of no moment. The conclusion that the learned trial judge reached was one that was open to him. Whether or not others might reach a different conclusion upon the same facts is not the question. In my opinion his judgment ought not to have been disturbed. I would allow the appeal. (at p315)

WALSH J. When a motor vehicle has come into collision with a stationary object on a road and this has not been caused by any mechanical failure or by any action taken by the driver in the course of an emergency created by the unexpected acts or omissions of those in control of other vehicles then moving on the road, it must very frequently be true that the accident has been caused by a failure of the driver of the colliding vehicle to exercise reasonable care. But it would be wrong to set up a rule or a set of rules, based upon an acceptance of the foregoing statement, by which a claim that a driver has caused damage by negligence should be determined. Each case must be decided upon a consideration of its facts and the tribunal must make a judgment upon the question whether or not it is satisfied that the driver failed to exercise reasonable care in all the circumstances and that his failure to do so was a cause of the damage in respect of which the claim is made. (at p315)

2. I think that what I have written so far is well settled: see Lee Transport Co. Ltd. v. Watson [1940] HCA 27; (1940) 64 CLR 1, at pp 7, 10 . I make those statements here only because in the arguments which were addressed to the Full Court of the Supreme Court of South Australia and to this Court in this case there has been an attempt to maintain general propositions laying down assumptions that drivers are entitled to make and asserting that particular occurrences ought or ought not to be foreseen by drivers as possibilities against which they should take precautions. In deciding in the present case whether the appellant's conduct had been negligent, it was proper to consider what was reasonably foreseeable and in doing that to take into account the expectations that a reasonable man, placed as the appellant was placed, might have had as to the manner in which other persons would probably conduct themselves. But conclusions upon such matters must be derived from all the facts of each case. They cannot be derived from propositions regarded as being of general application and as having the character of legal principles. (at p316)

3. In his reasons for judgment, the learned trial judge dealt with a claim made against the appellant that it was dangerous to drive at forty-five to fifty miles per hour with lights on a beam so short as not to permit time for evasive action if they disclosed an obstruction on the road. His Honour said, in my opinion correctly, that this claim was not a matter to be determined by a principle of law nor by the application of a rule of conduct which was necessarily of general application. The degree of care required was that which was sufficient to cope with reasonably foreseeable circumstances. He concluded that "a driver in the defendant's position could not fairly be expected to foresee the sort of obstruction that the plaintiff and his passenger and vehicle presented" (1971) 1 SASR, at pp 157-158 . In my opinion this statement did not show a mistaken view on his Honour's part as to what was involved in the question of foreseeability. I do not think that the right question was whether the appellant was entitled to drive on the assumption that no obstruction of any kind would be or would remain upon the bitumen surface of the road. I think that the question posed by the learned judge was right in that it asked whether the obstruction in fact encountered was "the sort of obstruction" that could reasonably be foreseen. The answer which his Honour gave to that question was, in my opinion, fairly open to him, although I do not doubt that others might have come to the opposite conclusion. (at p316)

4. The learned judge dealt also with an argument that the appellant was not keeping a proper look-out. He said that the fact that the passenger Mr. Bickley saw a man on the road before the appellant did so meant that his "look-out was not as vigilant as it might have been" (1971) 1 SASR, at p 157 . But his Honour doubted that the "split second difference in observation" could be attributed to negligence. Again that is a view that might not have been taken if someone else had had the task of deciding the facts. But it is difficult to say that his Honour was wrong in failing to be satisfied that in this respect the appellant was negligent. (at p317)

5. We have to decide whether the Full Court of the Supreme Court should have dismissed the appeal to it from the decision of the trial judge or should have substituted its own finding upon the question whether the appellant's negligence had been a cause of the accident. The Full Court decided that the appellant had been negligent and by majority it decided that his share of responsibility for the damage was one-third and that of the respondent was two-thirds. The reasons that the members of the Full Court gave have been discussed by the Chief Justice in his judgment in this appeal. I have given those reasons careful consideration and after some hesitation I have come to the conclusion that this was not a case in which the Full Court should have interfered with the decision of the trial judge on the question of the alleged negligence of the appellant. The several reasons which were given in the judgments of the Full Court for concluding that the appellant should have been found responsible in part for the accident demonstrate that there were grounds upon which, if the learned trial judge had given a decision in favour of the respondent on that issue, that decision might have been supported. But they do not persuade me that the decision which the trial judge reached should have been set aside. (at p317)

6. The manner in which in an appeal of the kind which the Full Court heard in this case the functions of an appellate court should be exercised in relation to questions of fact has been frequently described. The leading authorities include Paterson v. Paterson [1953] HCA 74; (1953) 89 CLR 212 , and Benmax v. Austin Motor Co. Ltd. (1955) AC 370 . I do not propose to attempt to make another recapitulation or even a summary of what has been written on this subject. But because of statements made in Da Costa v. Cockburn Salvage & Trading Pty. Ltd. [1970] HCA 43; (1970) 124 CLR 192 , by some other members of the Court and by myself and because of some observations in the judgments in this appeal prepared severally by the Chief Justice and by Windeyer J., I think that I should make some comments upon the scope of an appellate court's functions in relation to a finding by a trial judge that a party has or has not been negligent. (at p318)

7. My first observation is that I did not intend by what I wrote in Da Costa's Case (1970) 124 CLR, at p 217 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 satisfied that he 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. (at p318)

8. 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 definite 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. (at p318)

9. 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. (at p319)

10. In the present case, as I have said, I am of opinion that the decision of the trial judge should not have been disturbed. (at p319)

11. In my opinion the appeal should be allowed. (at p319)

ORDER

Appeal allowed with costs. Order of the Full Court of the Supreme Court of South Australia set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.