A trial judge’s first impressions still count in the Appeal Court
The Queensland Court of Appeal recently handed down its judgment in Lee v Lee  QCA 104 dismissing the appeals brought by the injured plaintiff and his parents from a first instance decision that the plaintiff was the driver of the vehicle when he sustained catastrophic injuries in an accident on 25 September 2013. [see Limelight 3/2017]
Essentially, the injured plaintiff, and his parents, alleged that the plaintiff’s father was driving the vehicle at all material times and that the plaintiff was a passenger. The CTP insurer contended that the plaintiff had been driving and, as such, the plaintiff issued proceedings against his parents and the CTP insurer.
First Instance Decision
The CTP insurer defended the proceedings on liability only (having agreed quantum prior to the hearing) and counterclaimed against the plaintiff and his parents on the asserted basis that they had made deceitful insurance claims to the CTP insurer by stating that, at the time of the accident, the plaintiff was the passenger in the vehicle driven by his father.
The hearing involved a number of factually complex issues, including an assessment of the probabilities of competing hypotheses, of which many things were unknown, to determine the identity of the driver. A variety of expert evidence and lay evidence was led.
After a meticulous review of the evidence, including an assessment that the evidence of the plaintiff and his mother was unreliable, evasive and not credible, his Honour Justice Boddice found that, on the balance of probabilities, the driver of the vehicle at the time of the accident was the plaintiff.
The plaintiff and his parents appealed.
The plaintiff and his parents attempted to attack the credit findings made by Justice Boddice. They also sought to attack various aspects of his Honour’s findings upon the expert evidence.
The CTP insurer contended that the Court of Appeal ought not to interfere with findings of credit of a trial judge and that, in any event, the totality of the evidence was such that there was a sufficiency of evidence to allow his Honour to make the findings that he did.
In dismissing the appeal, the Court of Appeal confirmed the well-settled position that a trial judge’s adverse impression of a witness from the way in which they give evidence may be fairly based and that an appellate Court that is asked to disregard that impression has the disadvantage of not having seen the features of the testimony from which that impression was formed.
In following the principles outlined by the High Court of Australia in Fox v Percy (2001) 214 CLR 118 at 126 and 128 and Robinson Helicopter Company Incorporated v McDermott  HCA 22 at 43, the Court of Appeal stated:
It remains a duty of courts conducting an appeal by way of a re-hearing to conduct a real review of the trial and, in cases where the trial was conducted before a Judge sitting alone, of that Judge’s reasons and to perform the task of weighing conflicting evidence and drawing their own inferences and conclusions, though they should always bear in mind that they have neither seen nor heard the witnesses, and should make due allowance in this respect. Having conducted the appeal by way of re-hearing and having made property allowance for the advantages of the trial Judge, appellate courts are authorised and obliged to discharge their appellate duties if they conclude that an error has been shown.
The Court was also critical of the grounds of appeal in that they sought to take issue with some evidence of the plaintiff’s expert engineer. The Court noted the weakness of the engineer’s opinion was that his expertise was in engineering and not in medical science. As such, his opinion had a limitation due to his lack of necessary expertise and did not provide clear proof that the plaintiff’s father was the driver.
Applications for Special Leave to High Court
The plaintiff and his parents have filed applications for special leave to appeal the Court of Appeal’s decision to the High Court. Those applications have not yet been heard.
Gilchrist Connell acted for the CTP insurer.
23 July 2018