Proudlove v Burridge & Ors [2017] HCATrans 128 (16 June 2017)

Last Updated: 19 June 2017

[2017] HCATrans 128

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P7 of 2017

B e t w e e n -

WARRICK TYLER PROUDLOVE BY HIS NEXT FRIENDS KEVIN LESLIE PROUDLOVE AND PATRICIA PROUDLOVE

Applicant

and

HARLEY MICHAEL BURRIDGE

First Respondent

PETER GAVIN O’NEILL

Second Respondent

NATALIE PATRICIA O’NEILL

Third Respondent

Application for special leave to appeal

KIEFEL CJ
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO PERTH

ON FRIDAY, 16 JUNE 2017, AT 11.48 AM

Copyright in the High Court of Australia

____________________

MS P.E. CAHILL, SC: May it please the Court, I appear with MS F. VERNON for the applicant. (instructed by Bradley Bayly Legal)

MR S. VANDONGEN, SC: May it please the Court, I appear with MR A.K. SHARPE for the first respondent. (instructed by Tottle Partners)

KIEFEL CJ: Yes, Ms Cahill.

MS CAHILL: May it please the Court. The special leave question is directed to clarifying or establishing the correct approach at the appellate court to reviewing factual error of a particular kind, that is, the kind that is an error or omission where the trial judge has failed to make any finding at all about a relevant fact or inference.

Most relevantly for the purposes of this application we say that the trial judge erred in failing to make a finding about the distance between Ms Tremayne standing on the road waving to oncoming drivers to warn them of horses on the road ahead and the point of collision between the first respondent’s vehicle and the horse that was on the road. That was very relevant to the issue of causation and whether, had the first respondent kept a proper lookout, which the trial judge found he did not, he would have seen Ms Tremayne in sufficient time to brake so as to stop or to avoid the collision.

Because the majority considered itself to be subject to the Fox v Percy style limitations which are applicable when a trial judge makes positive findings of fact, the majority did not themselves properly assess the relevant primary facts as to what those facts revealed in terms of probable inferences on this topic. So we say that the net effect is that the applicant has to this point been denied a proper consideration of the evidence and the probabilities of the first respondent’s found negligence having caused the applicant’s injuries.

This is no small thing, your Honours. The applicant was an able-bodied young man at the time of the accident, only 19 years old, and the resulting injuries he suffered from the collision were catastrophic. Against that background, we say that special leave should be granted primarily because it is in the interests of justice to do so, to enable that factual question of causation to be given proper consideration and evaluation. We also say - -

KIEFEL CJ: You are not relying upon there being a question of general principle arising?

MS CAHILL: We say that also, your Honour. We just simply prioritise the two points. The interests of justice we see as paramount here, given the submissions I have just made. But secondly, we do say that the question of law framed as the correct approach of the intermediate appellate court to reviewing the error of a trial judge in making no finding on a relevant fact or inference is one that it is of both utility and importance for this Court to resolve.

Against the background of those two matters, but primarily the paramount interests of justice that this case presents, we say that whether or not the case is otherwise a suitable vehicle based on prospects and the nature of the appeal perhaps have lesser importance but we say that we can nevertheless satisfy your Honours that it is a suitable vehicle in any event on both of those scores.

Your Honours, turning to the special leave question itself, the well-established limitations on reviewing findings of primary fact and inferences based on credibility findings are obviously based on an acknowledgement of the advantages that a trial judge has that an appellate court does not in weighing the totality of evidence in proper context and reaching the necessary conclusions of fact.

The review of inferences drawn from undisputed or found primary facts is less restrictive but still it is recognised that the appellate court properly has in mind the unique advantages of the trial judge and how the fact-finding exercise in that context may bear upon the inferences to be drawn. Those restrictions, we say, should not, indeed cannot apply where a trial judge has not used his or her advantage because instead of making a positive finding, whether right or wrong, they have failed to make any finding at all.

We accept before the review function of the appellate court is enlivened in relation to the failure to make a finding of fact or inference at all, it is still necessary to demonstrate to the appeal court error by the trial judge in failing to do so and that might arise, as it does in this case, by the trial judge failing to recognise the relevance of a particular fact or inference to an important issue that needs to be resolved.

KIEFEL CJ: What do you say in particular is wrong with the majority’s approach? They reviewed the facts for themselves, their Honours took into account what had been said in Robinson Helicopter about reviewing the matter for themselves and their Honours were not limited to the primary judge’s approach with its limitations but rather sought to determine questions of fact for themselves, as I understood what they had done. So what is the error in the majority’s approach?

MS CAHILL: May I direct your Honour to two parts of the application book in the majority’s reasoning - first of all, page 160 and paragraph 160 of the majority’s reasoning – and if I can answer your Honour’s question particularly by reference to this important inference that we say ought to have been drawn in relation to the topic of the distance Ms Tremayne was standing from the collision point.

Your Honours will see that in the last sentence of paragraph 116 the test that the majority has applied is plainly articulated there. We say that is clearly the wrong test because the trial judge’s error was in failing to make any finding about that topic.

When we go to the analysis that the majority undertook in relation to that topic, I take your Honours to pages 154 and 155. Your Honours will see between paragraphs 136 and 141 the step-by-step analysis that the majority undertook in relation to this topic and the clue as to where the error lies can be exposed. Even in the first sentence of paragraph 136 the majority is asking itself the question of whether the evidence compels the proposition for which the appellants below contended.

The reasoning goes on in this frame without, we say, evaluating, as the trial judge ought to but did not, the probabilities of the evidence objectively and culminates in the conclusion at 141 at the bottom of page 155 of the application book that the majority is not “having regard to all of these matters” convinced that the primary judge erred. This we say lies at the heart of the error and the denial of proper consideration of the evidence and evaluation of it that we say the - - -

BELL J: In this part of the majority’s reasons they were addressing the contention that the finding should have been made that Ms Tremayne was at least 65 metres north of the impact point at the time of the collision.

MS CAHILL: Yes.

BELL J: So it is necessary to read the analysis as an explication of why their Honours were rejecting that.

MS CAHILL: Yes.

BELL J: Am I right in understanding that it was necessary to the applicant’s case that it be accepted that Ms Tremayne was at a distance of something of that order in order to overcome the causation difficulty?

MS CAHILL: It certainly was necessary in the way in which the case was ultimately put on appeal and even on the Chief Justice’s reasoning in minority, so to put it at between the 50 to 65 metres and that was then added to the 143 metres from which Ms Tremayne would have been visible to the first respondent, and so it is getting that total figure of the 143 plus the 50 to 65 that then provides the length of time within which the first respondent had to stop.

May I also address your Honour’s first question in relation to the analysis of the proposition that was put as to the positive finding that should have been made. We say that this analysis between paragraphs 136 and 141 entirely exposes the error. That proposition, had it been articulated or assuming it was articulated before the trial judge, should have been approached entirely on a question of whether or not the 50 to 65 metres was or was not the more probable fact and finding on the evidence in its totality.

BELL J: Yes.

MS CAHILL: One can see from this line of reasoning that that is not how the majority approached it. Rather, they were concerned to ascertain whether that conclusion was compelled and whether they were convinced that the trial judge had erred in not making the finding. In particular at paragraph 141 one can see in the second sentence commencing “However, the period of only some six seconds”, their Honours pick up just three facts to say, “Well, that is what we think. It could have only been just a short distance”.

What is problematic about that is that it does not reveal that there has been a proper review of the totality of the evidence through the prism of simply asking oneself what were the probabilities. That is the exercise and the evaluation which the applicant has been denied here and which we say is so fundamentally unjust in terms of its significance to the causation question.

KIEFEL CJ: But the Court of Appeal’s analysis from paragraphs 161 onwards, starting from the view that they reached that a reasonable person in the position of the first respondent would have had no more than about 143 metres and perhaps less in which to first identify Ms Tremayne and then dealing with the question of causation, why is that not a sufficient disposition of the critical factual matters?

MS CAHILL: Well, fundamentally one can see from that 143 that there is basically no allowance for – the end result is there is no allowance for any distance between Ms Tremayne and the horses. So there is some criticality, if you will, in that. The Court of Appeal in effect concludes that 143 is insufficient time to stop but the possibilities are indeed – they do not say the probabilities, but when one looks at their reasoning the probabilities might have been that a longer distance could have been.

We see that at paragraph 181 and thereabouts in their reasoning. If one commences at paragraph 179, your Honours. There is some controversy about this approach. Your Honours may be aware that the Chief Justice in his minority decision expressed some criticism of using the Austroads Guide which is essentially a guide for the design of roads in Australia and using the data and formulae from it in order to apply it to this situation.

Nevertheless, for the purposes of exposing the point that your Honour Justice Kiefel has asked me about, one can see this calculation at 181 using a formula from the Austroads Guide to calculate the velocity that the first respondent’s vehicle would be driving at at the 143 metre mark based on an assumption that it was travelling at 110 kilometres an hour to begin with and then braked firmly. The majority say “braked hard” but we think the preponderance of evidence is braked firmly in response to seeing Ms Tremayne.

If one is just to, for example, insert instead of 143 metres there 163, just another 20 metres, and there is some significance to that number that I offer your Honours because your Honours may have noticed that there was a 20-metre brake mark length before the collision point, one might assume on the probabilities, we would say necessarily assume on the probabilities given the other evidence that Ms Tremayne must have been at least 20 metres ahead of the collision point because her evidence was that she did not see the car, either its lights changing or it changing speed before it passed her. Now, if we add that 20 metres then in rough terms the velocity reduces to around 41, 42 kilometres per hour. So every 10 metres, if you will, then has some significance attached to it.

BELL J: Ms Cahill, can I take this up with you. As I understand the analysis undertaken by the Chief Justice in his dissenting reasons, he identified I think it was four different approaches that one could take. On each of them, I think it did underpin his reasoning that Ms Tremayne must have been something of the order of was it 50 or 60 metres north of the collision point.

MS CAHILL: Probably 50, yes.

BELL J: Now, the Chief Justice, reviewing the matter for himself, looked at considerations such as the likelihood in his view that Ms Tremayne was beyond the point where the brakes were first applied because she did not hear the sound of the vehicle skidding and his Honour considered that perhaps the horses might have progressed further south from the point that Ms Tremayne first attempted to shoo them away.

But the primary judge did in his fact finding – and this is at application book 78, 491, whilst he did not make a finding about where Ms Tremayne was, he did refer to her evidence that she agreed she had not moved far and he appears to have rejected the proposition that had been put that one might think she had walked some little distance as she spoke on the telephone.

One difficulty might be when one comes to looking at the Chief Justice’s analysis of matters favourable to the applicant there was a degree of speculation that would seem to be contrary with that finding made by the primary judge that Ms Tremayne had not in fact gone far.

MS CAHILL: Yes. We would say that it was not so much speculation and we do not necessarily say that this is a stark choice for the High Court between accepting the Chief Justice’s process of factual reasoning versus the majority’s but what we do say in general terms and more appropriate about the Chief Justice’s reasoning is that he approached it from the point of view of reviewing the totality of the evidence, which is at the height of our special leave application – that is the first point.

The second point is that rather than being dictated to by the science he adopted a more intuitive approach. So he was not in the realm of, “Well, it is 143 metres, you can stop; 142 metres and you can’t” and the fine distinction of whether a pure causation is proved turns on that mathematical calculation. It was right, we say respectfully, in that context for him to have regard to those matters and combine them with information of the science, so being informed by the science, to look at overall what the probabilities were that we say was the correct approach. I expect my time has now concluded, your Honours, may it please the Court.

KIEFEL CJ: No, you do not have a red light actually. You are only on yellow.

MS CAHILL: We do not have access to the lights, your Honour, that is the problem. So ultimately your Honours we say that the interests of justice are, in any event - whatever view that your Honours take about the prospects of the appeal, the interests of justice really compel that this applicant should have the opportunity to have a proper review of this very important point but for the reasons which I hope I have been able to expand in response to her Honour Justice Bell’s questions, we say that conformably, even looking in a very simplistic way at the effect of these additional few metres on the sorts of analysis that the majority did at paragraph 181, the probabilities or the likelihood of the probabilities being persuaded to the proof of causation are very high on a proper review of the evidence. That is why we say the special leave application should be granted. May it please the Court.

KIEFEL CJ: Yes, thank you. Mr Vandongen.

MR VANDONGEN: If your Honours please. In relation to proposed ground 2, there are two submissions that we seek to make on the special leave application. They are firstly that the approach that was taken to the majority - to the question of whether the trial judge erred in deciding that he could not make any findings about where Ms Tremayne was standing in relation to the point of impact was correct.

The second submission that we make is that even if it was not correct and even if it gives rise to issues of public importance which we do not accept, what the majority did do, as your Honour the Chief Justice has pointed out to my friend, did go on to draw inferences of itself as if error had been found and there is insufficient doubt attending the conclusions that were drawn by the majority in undertaking that task.

Can I deal with that second point first because it does, in our submission, appear to be a critical point. If your Honours take up the application book and go to page 154, you will see from paragraph 134 to paragraph 141, stopping at the end of the first sentence, what we say is in essence the majority undertaking on orthodox principles and approach to the question of whether or not error has been shown, and I will come back to that in a moment.

Then in the second part of paragraph 141, the majority, commencing with the word “However” commences to draw its own inferences as if error had been shown, on the assumption that error had been shown in the way in which the appellant put his case. The majority referred to two aspects of the evidence which, in its view, was capable of drawing an inference that Ms Tremayne was only slightly to the north of the horse at the time of impact.

Those two things that the majority relied upon were the period of only some six seconds between the first respondent’s vehicle reaching the crest of the impact and, secondly and most importantly, Ms Tremayne’s own evidence that she moved only slightly ahead of the horses and that the impact point was slightly behind her, and that both of those things pointed, in the majority’s view, to a conclusion that she was only a short distance – not a distance of 50 to 65 metres - in front of the horses.

This issue or this analysis was recommenced again at paragraph 161 of the majority’s reasons, which appears at page 160 of the application book. Your Honour the Chief Justice took my learned friend to this and read out to her the second sentence and following, which is the critical part of the reasoning process undertaken by the majority because what the applicant says here is that the majority erred in concluding that the trial judge made an error in failing to or deciding not to draw an inference. On the assumption that that was correct, it was then for the majority to go on to determine for itself what inferences could be drawn, and that is precisely what the majority did.

Quite apart from the notion that the applicant did not get a proper hearing before the Court of Appeal, he in fact did. You can see there in that second sentence in paragraph 161, beginning with the words “The inference”, emphasised the inference that they would draw, we would draw, is ultimately a conclusion that Ms Tremayne was only slightly to the north of the impact point between the first respondent’s car and the horse, precisely the task that was required to be undertaken.

That is the second of the two submissions that I wish to make in relation to proposed ground 1, the first of which was that the approach was correct. The essential issue, as I submitted a few moments ago, was whether or not the conclusion of the trial judge that he was unable to draw an inference was correct.

The particular finding which is the subject of that can be found at application book 62, at paragraph 373. It is in the third sentence: “I am also satisfied”. So when one looks at that sentence, it is not a mere failing to draw an inference, it is drawing an inference, firstly, that the horses were to the south; secondly, that the impact was to the south and a conclusion that on the evidence the trial judge was not able to be satisfied on balance about where precisely Ms Tremayne was standing.

Against that background, the Court of Appeal, the majority, then came to deal with that question, as I have taken your Honours to a few moments ago. They dealt with that from application book 153 onwards and in particular at page 154, at paragraph 134 onwards. The question that the majority was required to answer was whether or not the trial judge erred,

whether he should have drawn an inference and whether it was open to him not to have drawn an inference.

When one looks at the approach taken by the majority at paragraph 134 through to the beginning of paragraph 141, that, we say, is precisely what the majority did. They considered whether or not the trial judge erred, whether it was open to him to conclude that he was unable to draw the inference and reached the conclusion, properly in our submission, in the first sentence of paragraph 141, namely, that they were not convinced that he had made the error complained of before them in the court below.

Your Honour Justice Bell put to my learned friend a few moments ago that one needs to look at the analysis in light of the way in which the issue was put to the Court of Appeal and, with respect, the first respondent agrees with that, your Honour. Paragraph 134 is the question that the majority was being asked to answer – that is, whether or not those incontrovertible facts on the applicant’s case were such as to require the trial judge to draw an inference about where Ms Tremayne was. So the way in which that issue was put effectively shaped the way in which the majority then went on to deal with it in paragraphs 135, 136 and so on.

So, in our submission, when you look at it in that way and when you understand, in our submission, as one should, having regard to what the majority said at paragraph 161, the Court of Appeal majority did not err in the way in which my learned friends contend. It approached the question of whether or not the trial judge erred in accordance with principles laid down by this Court in Robinson Helicopters that it concluded that the trial judge did not err in the way alleged and went on as if error had been made to draw its own inferences, which are not consistent with the way in which either – well, are not helpful, if I could put it that way, to the applicant’s case.

Your Honour Justice Bell pointed out, correctly in my submission, that a finding about where Ms Tremayne was, in the order of 50 to 65 metres, was absolutely critical to the applicant to succeed on appeal, whether on the majority’s approach or on his Honour the Chief Justice’s approach. Those are my submissions orally. Otherwise, we rely upon our written submissions in relation to the other grounds of appeal. If your Honours please.

KIEFEL CJ: Yes, thank you. Ms Cahill, do you have anything in reply?

MS CAHILL: Yes, very briefly, if it please the Court. It would not be correct, we say with respect, to say that the 50 to 65 metres was critical, rather that it was highly relevant to the question of causation as the submission was advanced on appeal. In substance, my learned friend puts to the Court that the exercise that should have been undertaken by the trial

judge in relation to this fact or inference was in fact undertaken by the majority and that is exposed by the reasoning at paragraph 141 of their reasons for decision.

We respectfully say that the preceding paragraphs expose that that just simply cannot be right. The reason is this. When one looks at the reasoning at paragraphs 136 and 137, for the purposes of considering the factual error of the trial judge, the majority looks at whether or not evidence should be discounted or disregarded in terms of – discounted in terms of its weight or disregarded entirely because of possibilities or whether or not the evidence is compelling rather than just what do the probabilities reveal about this evidence.

That then feeds into the conclusions at 141. We say it is tolerably clear that the majority’s confinement of its conclusion of facts to the three points in the second sentence of 141 is the cause of the product of the erroneous approach to the other relevant evidence at paragraphs 136, 137 and 138. May it please the Court.

KIEFEL CJ: Thank you.

We consider that this application for special leave involves no question of general principle such as would warrant the grant of special leave. Special leave is refused with costs.

The Court will adjourn until 2.15 pm on Monday, 19 June in Adelaide.

AT 12.19 PM THE MATTER WAS CONCLUDED