On Thu, 15 Dec 2005 16:01:24 +1100, Sylvia Else wrote:
> Heretic wrote:
>
>> These decisions can't be reversed by local legislation. If that was
>> possible, there would be no need for litigation. You need only go to
>> the pollies and tell the sad story, with appropriate media publicity
>> manufactured for the occasion. Apart from second-guessing the High
>> Court
>
> I wasn't suggesting that the result of this particular case be reversed,
> though perhaps my wording suggested otherwise. I was concerned about the
> precedent, about which see below.
>
>
>> The case turns on its own unique facts, the law was correctly applied,
>> and the case has no precedent value.
>
> Not so sure about that. At the very least, it is a case to which courts
> can look when trying to decide whether there is negligence involved in
> other motor accidents.
Not really.
> Essentially, the High Court has supported the WA decision to the effect
> that the standard of care expected of drivers is higher than that
> displayed by this particular driver.
In the particular circumstances that existed at the particular time. This
is not precedent stuff, as the High Court was at pains to indicate.
> Yet that seems to
> me to be unreasonably second guessing that driver's decision making
> process with the benefit of considerable time to mull over the issues,
> and of course, hindsight.
Your objection might better be made to the decision of the WA appellate
court. I found that decision quite unconvincing, although it is completely
on the facts of the case. At least, the apportionment was not wholly
crazy. All the High Court did was decline to redo the matter when the WA
appellate court had already done that, and there was no obvious error in
law.
>> What the case does demonstrate (yet
>> again) is that the High Court does not want negligence cases coming to
>> it where there is no issue of legal principle involved. You might get
>> these curious cases, but the responsibility for finalising them is in
>> the local appeal court, not the full court of the High Court.
>
> To my mind, the appeal court should have left the first instance
> decision alone.
I might agree, but it is better to leave that to the appellate court than
have a vote on Usenet about it.
> The High Court could have reversed the appeal court's decision on that
> ground, which would have been a good signal to send to appeal courts
> that they are not courts that perform a review on merits, except in
> exceptional circumstances, which this was not.
Maybe. I prefer the signal that says that these dreary cases should not be
brought to the full court of the High Court.
> The first instance judge may have made some errors, but that doesn't
> mean that the result was wrong.
Of course not. (Note that Kirby J was in the majority.) |