Who was the driver? The High Court discusses the glaringly improbable

Author: Laura D'Alessandri
Judgment date: 4 September 2019
Citation: Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2019] HCA 28 (4 September 2019)
Jurisdiction: High Court of Australia

Principles

• Restraint with respect to interference with a trial judge's findings goes only as far as factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses.
  
  
• Thereafter, however the appeal 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.

Background

The plaintiff, a then 17 year old, was in a Tarago with his mother, father and two younger brothers. They were involved in a head on collision. There was no dispute that the Tarago was the at fault vehicle, the sole issue at the trial was the identity of the driver of the Toyota.

The plaintiff claimed his father had been driving.

The Police came to the scene and the father said he was the driver. At some later stage however, first responders gained the impression the father was being evasive as to who the driver was. Investigation revealed that the plaintiff's blood was on the driver's steering wheel and airbag.

The driver of the oncoming vehicle gave evidence that within 30 and 90 seconds of the collision there was no-one in the driver's seat of the Toyota. In an earlier statement, he said that there were three younger male children in the back seat and from what he saw he believed that the father must have been driving at the time of the collision.

RACQ contended however that the plaintiff was the driver. It relied on the presence of the plaintiff's blood on the driver's airbag in support of that defence.

Supreme Court

The plaintiff and his mother gave evidence. The plaintiff's father did not. The trial judge formed an adverse impression of the credibility of the plaintiff and his mother. The trial judge rejected the evidence of each of them and found that the plaintiff was driving the Tarago at the time of the collision. The plaintiff's claim was dismissed.

Court of Appeal

McMurdo JA identified critical errors in the trial judge's findings, concluding that, it was "much more likely" that the plaintiff was not the driver of the Tarago. In particular, the hypothesis that the plaintiff had been pulled from the driver's seat to the passenger seat immediately behind in something less than 90 seconds, was, in the Court of Appeal's analysis, unlikely.

However, the blood evidence, in McMurdo JA's analysis, substantially weakened the plaintiff's case. Nonetheless, the Court of Appeal characterised the case as "very closely balanced".

At this juncture, McMurdo JA stated that the Court of Appeal's task was to re-hear the case "but not without regard to the decision of the trial judge". His Honour concluded that it had not been shown that the trial judge had misused his advantage in seeing and hearing the appellant and his mother give evidence, nor was the trial judge's decision "glaringly improbable" or "contrary to compelling inferences". The appeal was dismissed.

The plaintiff appealed to the High Court on two grounds:

1. The Court of Appeal failed to engage with a critical argument based on unchallenged expert evidence as to the blood evidence.
   
   
2. The Court of Appeal's restraint in the face of the trial judge's "advantage" in circumstances in which it was argued that the finding that the plaintiff was the driver of the vehicle, was contrary to the compelling inferences from uncontroverted evidence.

Decision

The High Court determined that the Court of Appeal erred in its treatment of the trial judge's advantage.

Bell, Gageler, Nettle and Edelman JJ held that the Court of Appeal was bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge had erred in fact or law.

Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences" goes only as far as factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses.

Thereafter, however, the court of appeal is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed.

Here, the trial judge's findings of primary fact were not disturbed. However, in material respects, the Court of Appeal found that the inferences the trial judge drew from those findings were wrong. Notably, the trial judge's finding that the driver was not wearing a seatbelt not only was contrary to each party's case but, if correct, on the Court of Appeal's analysis, would lead to the conclusion that there was no real prospect that the plaintiff was the driver.

The Plaintiff's appeal was allowed.

Why this case is important

Whilst the outcome of this case turned largely on its facts, the High Court reminds us that appeal courts are permitted to conduct " a real review" of all the evidence at trial. That a finding must have been 'glaringly improbable' before a decision can be overturned is to understate the parameters of review. Such restraint should be confined to impressions about the credibility and reliability of witnesses. Otherwise, an appeal court is in as good a position as the trial judge to decide on the proper inference to be drawn from the facts which are either undisputed, or determined at trial.