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