Joyce v Anderson

(2020) 91 MVR 334; [2020] WASCA 48

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Standard of appellate review
3. › Findings of fact
4. › Estimates of speed by witnesses
5. › Whether finding based on credibility and reliability assessment or inference from established facts
6. › Whether appellate court should apply Robinson Helicopter standard or Warren v Coombes standard
7. › Whether trial judge's finding as to speed was against the weight of the evidence
1. Tort Law
2. › Negligence
3. › Contributory negligence
4. › Cyclist killed in collision with motor vehicle at roundabout
5. › Whether deceased travelling at excessive speed
6. › Whether deceased failed to keep proper lookout
7. › Whether reasonable person in deceased's position entitled to assume driver would give way
8. › Civil Liability Act 2002 (WA), s 5B, s 5K
1. Evidence
2. › Reliability of evidence
3. › Hospital medical records
4. › Whether medical notes constituted reliable record of deceased's statement as to speed
5. › Whether hearsay entries in medical records carried forward from earlier notes were contemporaneous records
1. Evidence
2. › Admissibility and weight
3. › Estimates of speed, time and distance by lay witnesses
4. › Whether inferred speed calculations from time and distance estimates could displace direct estimate of speed
5. › Whether trial judge erred in not reconciling inconsistency between witness's direct speed estimate and time/distance estimates

Quick Take

A trial judge's finding as to speed based on acceptance of a witness's direct estimate may attract the higher standard of appellate restraint applicable to credibility findings under Robinson Helicopter, rather than the Warren v Coombes standard for inferences from established facts, because estimates of speed involve an intuitive synthesis that the trial judge is better placed to evaluate. Inferred speed calculations derived from imprecise witness estimates of time and distance are an insufficient basis to overturn a trial judge's acceptance of a direct speed estimate, particularly where the underlying variables are hedged with qualification. A cyclist approaching a roundabout is entitled to assume that a driver at a give way sign will give way and is not required to keep the driver under constant observation while attending to traffic from the right to which the cyclist must give way.