Benmax v Austin Motor Co Ltd

1955. Jan. 20. The House dismissed the appeal.

This report is concerned only with their Lordships' observa-
tions as to the principles guiding an appellate tribunal in dealing
with findings of fact by a court of first instance.

Viscount Srmonps. My Lords, I have had the privilege of
reading the opinion which my noble and learned friend, Lord
Morton of Henryton, is about to deliver, and I agree so fully with
it that I think it unnecessary to add anything except on one
question of general importance which has once more been raised
on this appeal.

Counsel for the appellant urged in the forefront of his argu-
ment that the existence of an inventive step was a question of
fact which had been decided by the trial judge, Lloyd-Jacob J.,
in favour of the appellant, and therefore that the Court of Appeal
should not have reversed his decision except for certain reasons
which clearly were not present in this case. I think it convenient
therefore to state my view on this question, though I am aware
that it does not entirely agree with observations made in this
House by noble Lords for whose opinion I have the highest
regard. Fifty years ago, in Montgomerie & Co. Ld. v. Wallace-
James, Lord Halsbury L.C. said: '' But where no question
"arises as to truthfulness, and where the question is as to the
"proper inferences to be drawn from truthful evidence, then

* (1951) 69 R.P.C. 63, 70. 1 [1904] A.C. 73, 75.

A.C. AND PRIVY COUNCIL.

'' the original tribunal is in no better position to decide than the
"judges of an Appellate Court.'' And in Mersey Docks and
Harbour Board v. Procter,? Lord Cave L.C. said: '' The proce-
"dure on an appeal from a judge sitting without a jury is not
"governed by the rules applicable to a motion for a new trial
"after a verdict of a jury. In such a case it is the duty of the
"Court of Appeal to make up its own mind, not disregarding
"the judgment appealed from and giving special weight to that
"judgment in cases where the credibility of witnesses comes
"into question, but with full liberty to draw its own inference
"from the facts proved or admitted, and to decide accordingly."
It appears to me that these statements are consonant with the
Rules of the Supreme Court, which prescribe that '' all appeals
"to the Court of Appeal shall be by way of rehearing '' (R.S.C.,
Ord. 58, r. 1), and that "' the Court of Appeal shall have power
'"" to draw inferences of fact and to give any judgment and make
""any order which ought to have been made"' (r. 4). This does
not mean that an appellate court should lightly differ from the
finding of a trial judge on a question of fact, and I would say that
it would be difficult for it to do so where the finding turned
solely on the credibility of a witness. But I cannot help thinking
that some confusion may have arisen from failure to distinguish
between the finding of a specific fact and a finding of fact which

373

H) L. (.)
1955

BENMAX
0.
AUSTIN
Moror
Co. Lp.

Viscount
Simonds.

is really an inference from facts specifically found, or, as it has ,
sometimes been said, between the perception and evaluation of |

facts. An example of this distinction may be seen in any case.

in which a plaintiff alleges negligence on the part of the defen-
dant. Here it must first be determined what the defendant in
fact did and, secondly, whether what he did amounted in the
circumstances (which must also so far as relevant be found as
specific facts) to negligence. A jury finds that the defendant has
been negligent, and that is an end of the matter unless its verdict
can be upset according to well established rules. A judge sitting
without a jury would fall short of his duty if he did not first
find the facts and then draw from them the inference of fact
whether or not the defendant had been negligent. This is a
simple illustration of a process in which it may often be difficult
to say what is simple fact and what is inference from fact, or,
to repeat what I have said, what is perception, what evaluation.
Nor is it of any importance to do so except to explain why, as I
think, different views have been expressed as to the duty of an

2 [1923] A.C. 258, 258-9; 39 T.L.R. 275.

374

HOUSE OF LORDS [1955 |

H. L. (E.) appellate tribunal in relation to a finding by a trial judge. For

1955

BENMAX
v.
AUSTIN
Motor
Co. Lp.

Viscount
Simonds.

I have found, on the one hand, universal reluctance to reject a
finding of specific fact, particularly where the finding could be
founded on the credibility or bearing of a witness, and, on the
other hand, no less a willingness to form an independent opinion
about the proper inference of fact, subject only to the weight
which should, as a matter of course, be given to the opinion of
the learned judge. But the statement of the proper function
of the appellate court will be influenced by the extent to which
the mind of the speaker is directed to the one or the other of the
two aspects of the problem.

In a case like that under appeal where, so far as I can see,
there can be no dispute about any relevant specific fact, much
less any dispute arising out of the credibility of witnesses, but the
sole question is whether the proper inference from those facts
is that the patent in suit disclosed an inventive step, I do not
hesitate to say that an appellate court should form an indepen-
dent opinion, though it will naturally attach importance to the
judgment of the trial judge. I ought not to conclude this opinion
without saying how much I have owed in the preparation of it to
certain writings by Professor Goodhart.

I would dismiss this appeal.

Lorp Morton or HeEnryton, having stated his reasons in
favour of dismissing the appeal, continued: Counsel for the
appellant pointed out that the existence or non-existence of an
inventive step is a question of fact decided in favour of the
appellant by the trial judge, who had the advantage of seeing
and hearing the witnesses. They suggested that your Lordships
should hesitate long before overruling his decision. My Lords,
this is an argument of great weight if the credibility of witnesses
has come in question; but in the present case it would appear
that the learned judge did not doubt the credibility of any witness,
and formed his views by inference from the evidence as a whole.
The Court of Appeal formed the opposite view by the same
method and I agree with that court.

My last observations were prepared before I had the privilege
of reading in print the speech which has just been delivered from
the Woolsack. It will be apparent from these observations that
my views on the subject of appellate courts in no way differ from
those which have just been expressed by my noble and learned
friend, Viscount Simonds.

I would dismiss the appeal.

A.C. AND PRIVY COUNCIL.

375

Lorp Rem. My Lords, I have had an opportunity of reading H. L. (E.)

the speech which my noble and learned friend, Lord Morton of
Henryton, hag just delivered. I agree with it and I cannot
usefully add anything to it. I have also had an opportunity of
reading the speech of my noble and learned friend, Lord
Simonds. I am also in agreement with it but, in view of the
general importance of the question with which he has dealt, I
think it right to express my views in my own words.

Apart from cases where appeal is expressly limited to questions
of law, an appellant is entitled to appeal against any finding of
the trial judge, whether it be a finding of law, a finding of fact
or a finding involving both law and fact. But the trial judge has
seen and heard the witnesses, whereas the appeal court is denied
that advantage and only has before it a written transcript of
their evidence. No one would seek to minimize the advantage
enjoyed by the trial judge in determining any question whether
a witness is or is not trying to tell what he believes to be the
truth, and it is only in rare cases that an appeal court could
be satisfied that the trial judge has reached a wrong decision
about the credibility of a witness. But the advantage of seeing
and hearing a witness goes beyond that: the trial judge may be
led to a conclusion about the reliability of a witness's memory
or his powers of observation by material not available to an
appeal court. Evidence may read well in print but may be
rightly discounted by the trial judge or, on the other hand, he
may rightly attach importance to evidence which reads badly in
print. Of course, the weight of the other evidence may be such
as to show that the judge must have formed a wrong impression,
but an appeal court is and should be slow to reverse any finding
which appears to be based on any such considerations.

The authority which is now most frequently quoted on this
question is the speech of Lord Thankerton in Thomas v. Thomas,°
and particularly the passage which I now quote: ''I. Where a
'* question of fact has been tried by a judge without a jury, and
'* there is no question of misdirection of himself by the judge, an
'' appellate court which is disposed to come to a different con-
'*elusion on the printed evidence, should not do so unless it is
"satisfied that any advantage enjoyed by the trial judge by
''reason of having seen and heard the witnesses, could not be
'sufficient to explain or justify the trial judge's conclusion;

3 [1947] A.C. 484, 487-8; 63 T.L.R. 314; [1947] 1 All E.R. 582.

1955

BENMAX
v.
AUSTIN
Moror
Co. Lp.

376

le 1. Ga)
1955

BENMAX
0.
AUSTIN
Motor
Co. Lp.

Lord Reid.

HOUSE OF LORDS [1955 |

'' II. The appellate court may take the view that, without having
'"seen or heard the witnesses, it is not in a position to come to
'' any satisfactory conclusion on the printed evidence; III. The
'' appellate court, either because the reasons given by the trial
''judge are not satisfactory, or because it unmistakably so
'' appears from the evidence, may be satisfied that he has not
''taken proper advantage of his having seen and heard the
'' witnesses, and the matter will then become at large for the
'' appellate court. It is obvious that the value and importance
'' of having seen and heard the witnesses will vary according to
'the class of case, and, it may be, the individual case in
'* question."'

Thomas v. Thomas * was a consistorial case based on cruelty,
and I think that the whole passage which I have quoted refers
to cases where the credibility or reliability of one or more
witnesses has been in dispute, and where a decision on these
matters has led the trial judge to come to his decision on the
case as a whole. If that be right, then I see no reason to doubt
anything that was said by Lord Thankerton. But in cases where
there is no question of the credibility or reliability of any witness,
and in cases where the point in dispute is the proper inference
to be drawn from proved facts, an appeal court is generally in
as good a position to evaluate the evidence as the trial judge,
and ought not to shrink from that task, though it ought, of
course, to give weight to his opinion. In Riekmann v. Thierry *
Lord Halsbury said: '' The hearing upon appeal is a rehearing,
"and I do not think there is any presumption that the judgment
'"in the court below is right.'' And later in the same speech
he said ®: *' Upon appeal from a judge where both fact and law
"are open to appeal, it seems to me that the appellate tribunal
"is bound to pronounce such judgment as in their view ought to
'""have been pronounced in the court from which the appeal
"" proceeds, and that it is not within their competence to say that
"they would have given a different judgment if they had been
"the judge of first instance, but that because he has pronounced
"a different judgment they will adhere to his decision.''

My Lords, there may be a difference of emphasis between this
view and that expressed in the quotations given by my noble and
learned friend, Lord Simonds, on the one hand, and the view
expressed by Lord Thankerton and by other noble Lords and

4 [1947] A.C. 484. - 6 Ibid. 116-7. _
5 (1896) 14 R.P.C. 105, 116.

A.C. AND PRIVY COUNCIL.

learned judges to the same effect on the other hand, but I can
find no essential difference between the two views, and, plainly,
the present case is not one in which any question of credibility,
even in its widest sense, can be said to arise. I therefore agree
that the appeal should be dismissed.

Lorp Tucker. My Lords, for the reasons which have been
stated by my noble and learned friend, Lord Morton of Henryton,
I agree that this appeal should be dismissed. I also desire to
state my concurrence in the observations which have been made
by your Lordships with regard to the functions of your Lordships'
House and the Court of Appeal when dealing with the findings
of fact of a trial judge.

Lorp SoMERVELL oF Harrow. My Lords, I agree, for the
reasons given by my noble and learned friend, Lord Morton of
Henryton, that this appeal should be dismissed. I would wish
to add a few sentences on the point dealt with by my noble and
learned friend, Lord Simonds. I would, as does he, respectfully
differ from those who have suggested that an appeal on fact from
a judge sitting alone is the same as, or should be assimilated to,
an appeal from ajury. Apart from the fact that in the former case
the appeal is a rehearing, juries do not, and judges in varying
degrees do, give reasons for their conclusions. In a negligence
action it may be clear on appeal from a judge alone how he has
found what have been conveniently called the primary facts. An
appellate court must be free to consider whether the judge, who
has, I will assume, found for the plaintiff, applied the standard
of the reasonable man, as our law prescribes, or the standard of a
man of exceptional care and prescience.

The advantages enjoyed by the trial judge have often been
stated and are, I am sure, familiar to all appellate courts. The
difficult cases are those where there are circumstances which
appellant and respondent can each rely on. The judge has based
his decision on the way in which witnesses give their evidence.
Unless there is no dispute at all he always does this. On the
other hand, there are sentences in his judgment which indicate
very probably but not certainly that he did not have present to
his mind an answer or document which plainly affects the
accuracy of a witness he has relied on, or his general conclusion.
I only refer to this in order to emphasize the impossibility in my
opinion of laying down anything in the nature of a code as to the

377

H. L. (E.)

1955
BENMAX
0.
AUSTIN
Moror
Co. Lp.

J Cx
1955

March 14.

HOUSE OF LORDS

[1955]

circumstances in which an appellate court should interfere either
by reversing the trial judge or ordering a new trial. I agree that

the appeal should be dismissed.

Appeal dismissed.