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23 February 2016
The Court of Appeal recently considered the extent to which findings of fact made by a trial court can be revisited on appeal.(1) Although the decision is necessarily confined to its facts, it confirms that in appropriate cases there is a basis for an appellate court to disregard findings of fact reached by the trial court.
The case related to a personal injuries claim brought by the plaintiff arising out of an assault which allegedly took place at a disco at a rugby club (of which the defendants were the trustees). There was no full transcript of the evidence at the initial hearing, although a transcript was available in respect of the evidence given on the second (and final) day. The plaintiff and another witness gave consistent evidence as to the circumstances of the alleged assault on the rugby club premises, while two other witnesses (security guards who supervised the event) gave accounts which differed significantly, although neither claimed to have seen the alleged assault or could say in which location the plaintiff sustained her injuries. Having heard the evidence of the relevant witnesses, the trial judge gave a short ex tempore decision (of which there was a record) against the plaintiff.
Judge Hogan dellivered the judgment on behalf of the Court of Appeal. He summarised the evidence from the witnesses at trial and reviewed the decision of the trial judge. The essential question before the Court of Appeal was whether it was bound by the trial judge's finding of fact that the incident did not occur within the rugby club's hall. There was no dispute that the plaintiff had been injured, and it was accepted that this happened either within the rugby club premises or outside it. What was disputed was the trial judge's finding that it had not occurred within the club's premises (and thus, by implication, that it had happened outside the premises).
Hogan's starting point was the Supreme Court decision in Hay v O'Grady, in which it was held that if "the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings".(2) Judge McCarthy in that case felt that this emphasised "the importance of a clear statement… by the trial judge of his findings of primary fact, the inferences to be drawn and the conclusion that follows".
Hogan noted that although Hay v O'Grady may lead one to the perception that a trial judge's findings of fact are more or less inviolable, this is not the case; he referred to the subsequent Supreme Court decision in Doyle v Banville, which turned on key and minute findings of fact.(3) In that case, Judge Clarke observed that Hay v O'Grady was decided in the context of the then-recent abolition of jury trials in most personal injury actions. He noted the established jurisprudence regarding jury trials that issues of fact and the inferences drawn from them should not be disturbed if there is evidence to support them. However, in the context of trial by judge alone, he felt that the appeal court may, in certain circumstances, review an inference of fact by a trial judge.
Hogan cited Clarke to the effect that parties are entitled to know why they won or lost, and further:
"To that end it is important that the judgment engages with the key elements of the case made by both sides and explains why one or other side is preferred. Where, as here, the case turns on very minute questions of fact as to the precise way in which the accident in question occurred, then clearly the judgment must analyse the case made for the competing versions of those facts and come to a reasoned conclusion as to why one version of those facts is to be preferred. The obligation of the trial judge, as identified by McCarthy J, in Hay v O'Grady, to set out conclusions of fact in clear terms needs to be seen against that background."
Hogan also referenced Clarke's observation that:
"part of the function of an appellate court is to ascertain whether there may have been significant and material error(s) in the way in which the trial judge reached a conclusion as to the facts. It is important to distinguish between a case where there is such an error, on the one hand, and a case where the trial judge simply was called on to prefer one piece of evidence to another and does so for a stated and credible reason. In the latter case it is no function of this court to seek to second-guess the trial judge's view."
In applying the principles from Hay v O'Grady, as refined by Doyle v Banville, Hogan noted that the trial judge's credibility assessment on whether the assault took place inside or outside the premises assumed critical importance. He recited again the witness evidence and paid particular attention to the inconsistencies between them, with which he felt the trial judge had failed to engage. Looking at the trial judge's analysis of the evidence, he observed the following:
Accordingly, the Court of Appeal was satisfied that there had been no proper engagement with the evidence by the trial judge, which was an error of law which would justify intervention by the Court of Appeal. Accordingly, the case was remitted for a full rehearing.
Although the decision is very much confined to its facts, it is important because it recites and applies the relevant case law regarding the extent to which an appellate court may revisit findings of fact and inferences by a trial court. It therefore confirms that the Court of Appeal is not hidebound by findings of fact in the High Court, and that if the failings in weighing up the evidence are sufficiently serious or not properly explained, those factual findings may be disregarded.
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