HIGH COURT OF AUSTRALIA AND APPLICANT YARRABEE COAL COMPANY PTY LTD & ANOR RESPONDENTS Lujans v Yarrabee Coal Company Pty Ltd [2008] HCA 51 16 October 2008 ORDER Special leave to appeal against the orders of the Court of Appeal of the Supreme Court of New South Wales made on 4 December 2007 is granted, the appeal is treated as having been heard instanter, and the appeal is allowed. The orders made by the Court of Appeal are set aside. The matter is remitted to the Court of Appeal for a rehearing of the respondents' appeal to that Court. The respondents are to pay the costs of the applicant in the special leave application and the appeal to this Court. The costs of the appeal to the Court of Appeal which led to the orders of 4 December 2007 be in the discretion of the Court of Appeal on the rehearing. On appeal from the Supreme Court of New South Wales Representation B M Toomey QC with S J Longhurst for the applicant (instructed by Russell C T Barry QC with G J Davidson for the respondents (instructed by McCabe Terrill Lawyers) Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports. CATCHWORDS Lujans v Yarrabee Coal Company Pty Ltd Torts – Causation – Road accident – Whether road deceptive due to defendants' maintenance – Whether driver error constituted contributory negligence – Whether driver error sole cause of accident. Courts – Jurisdiction and powers on appeal – Court of Appeal of Supreme Court of New South Wales – Whether rehearing under Supreme Court Act 1970 (NSW), s 75A(5) properly conducted – Whether failure to conduct real review of trial. Courts – Jurisdiction and powers on appeal – Court of Appeal of Supreme Court of New South Wales – Conduct of rehearing – Whether evidence and trial judge's findings adequately considered – Whether original photographs relied upon – Whether inconsistent evidence taken into account. Words and phrases – "appeal", "rehearing". Supreme Court Act 1970 (NSW), s 75A. FRENCH CJ, GUMMOW, HAYNE, HEYDON AND CRENNAN JJ. After a 29 day trial before the Supreme Court of New South Wales (Cooper AJ sitting without a jury), Matina Luise Laima Lujans ("the plaintiff") obtained a verdict for $8,759,510.55 against Yarrabee Coal Company Pty Ltd ("the first defendant") and Jalgrid Pty Ltd ("the second defendant")1. The defendants had a right of appeal to the Court of Appeal of the Supreme Court of New South Wales. They exercised it, and the Court of Appeal (Ipp and McColl JJA and Handley AJA) allowed the appeal2. Section 75A(5) of the Supreme Court Act 1970 (NSW) provides that an appeal of that kind shall be by way of rehearing. In her application for special leave to appeal to this Court, the plaintiff complains that although the oral hearing in the Court of Appeal lasted for more than two days, the Court of Appeal in truth failed to conduct a rehearing. Counsel for the plaintiff made the following criticisms of the Court of Appeal. It did not consider substantial bodies of evidence. It did not refer to the trial judge's assimilation of that evidence into his judgment. It misunderstood evidence and proceeded on wrong factual bases. It wrongly relied on its own interpretations of photographs over those which the trial judge had arrived at in the light of what experienced witnesses said about them and about the areas recorded in the photographs. Counsel contended that the Court of Appeal had failed to fulfil the duty of an intermediate appeal court "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"3. The oral hearing of the special leave application was adjourned into the Court as presently constituted. Argument was heard as if on an appeal. While not every argument of the plaintiff need be considered or accepted, the plaintiff's complaint should be upheld. Special leave should be granted, the appeal should be allowed, and the proceedings should be remitted to the Court of Appeal. 1 Lujans v Yarrabee Coal Co Pty Ltd, unreported, Supreme Court of New South Wales, 6 October 2006. 2 Yarrabee Coal Co Pty Ltd v Lujans (2007) 49 MVR 178. 3 Fox v Percy (2003) 214 CLR 118 at 126-127 [25] per Gleeson CJ, Gummow and Kirby JJ; [2003] HCA 22. Crennan In view of this outcome, it is not intended in the following statement of reasons to say anything about the controversial questions between the parties which might hamstring the conduct of the rehearing. The accident On Friday 18 September 1998 at about 6.20am the plaintiff, then 28 years old, was driving to her place of employment. She was driving along a haul road about 35 kilometres long from the Capricorn Highway in Central Queensland. It ran north to various mines, at one of which the plaintiff worked. The first defendant was one of the mining companies and controlled the road. The second defendant maintained and repaired the road. The plaintiff was driving a Toyota HiLux vehicle without passengers. Soon after leaving the Capricorn Highway she passed a coal truck on the haul road driven by Mr Geoffrey Allen Routledge. Mr Baxter Ian Smith followed her past the truck. Five kilometres further on, about 5.9 kilometres from the Capricorn Highway, at a point in the road where she was out of sight of Mr Baxter Ian Smith and Mr Routledge, the left-side wheels of her vehicle gradually entered the shoulder of the road from the hard running surface at the start of the sweeping right-hand bend. The vehicle then swung sharply to the right, travelled across the road, and rolled over, causing the plaintiff injuries which resulted in quadriplegia. There were no eyewitnesses to the accident except for the plaintiff4. The edge of the road on each side was called by the witnesses a "rill" – a type of windrow or ridge of soil left after grading operations. In the immediate area of the accident the width of the road from rill to rill including the hard running surface and the shoulders varied from 10.8 metres at the point where the plaintiff left the road to the left to 11.2 metres at the point where she came back to the right onto the hard running surface. The shoulder was about 1.5 metres wide. This variation in road width occurred over 33.3 metres. The trial judge's findings Many of the allegations made on behalf of the plaintiff as to how the accident took place were not accepted by the trial judge. However, that part of the plaintiff's case which he did accept was as follows. In the region of the accident there was a difference in adhesion between the hard compacted surface of the roadway and the relatively soft shoulder. Because of the defendants' 4 A following driver told police he thought he saw her car go off the road but also gave evidence at trial inconsistent with having seen the accident: see [22] below. Crennan maintenance practices, on the day of the accident the surface of the road in its vicinity was deceptive in that a reasonably prudent driver could not distinguish where the hard compacted surface of the road ended and the relatively soft shoulder began. The plaintiff was paying attention but was misled by the deceptive nature of the road surface into allowing the left wheels of her vehicle to move onto the shoulder. The left wheels then began an arcing movement to the left. The plaintiff felt a difference in the passage of her vehicle and in its steering. That difference caused her to feel unsafe. She reduced speed from 100 kilometres per hour to between 80 and 90 kilometres per hour. She turned her steering wheel to the right to avoid a guide post on the side of the road with which she otherwise would have collided. Because of the difference in adhesion between the left and right wheels the vehicle slid out of control. Although the trial judge accepted these parts of the plaintiff's case, he reduced the damages he would otherwise have awarded by 20 percent on the ground of contributory negligence. The contributory negligence lay, in the trial judge's view, in her failure to stay on the eight metre wide hard compacted centre of the road. The Court of Appeal's reasoning The Court of Appeal differed from the trial judge's view of events immediately before the accident in two ways. First, it said that the reduction in speed took place immediately after the plaintiff passed Mr Routledge's coal truck five kilometres before she left the road, not just before she left the road. Secondly, it considered that her movement before turning to the right was straight, not arcing. The primary reason why the Court of Appeal reversed the trial judge was that it viewed the sole cause of the accident as being driver error. That error lay in the plaintiff's failure to remain in the central part of the road and failure to keep away from the left shoulder. The Court of Appeal said that she was not keeping a proper lookout. Thus what the trial judge saw as a factor properly reflected in a finding of 20 percent contributory negligence was seen by the Court of Appeal as a complete bar to recovery. The plaintiff attacked the merits of endeavouring to examine which of several potential causes actually caused the accident – and counsel for the defendants did say that, as with all accidents, this accident had several causes – by purporting to investigate the role of only one possible cause and not others. That criticism may be put on one side. The significance of the Court of Appeal's approach is that it did not see it as necessary to consider two challenges which the defendants made to the trial judge's reasoning – that he erred in finding that the appearance of the road was Crennan deceptive, and also erred in finding that the shoulder was soft. However, after the Court of Appeal had decided the appeal on the driver error point, it went on to say that the appearance of the road was not deceptive and, apparently, that although gravel and dust existed on the shoulder, the shoulder was not so soft as to contribute to the accident. While these latter remarks were obiter dicta, the Court of Appeal did discuss some of the evidence going to the latter two questions while examining the question whether the sole cause of the accident was the plaintiff's failure to keep a proper lookout. The photographs One theme of the Court of Appeal's reasoning to which it devoted some attention was its criticism of the trial judge's conclusion that a reasonably prudent driver "could not readily distinguish where the hard compacted surface of the roadway ended and the relatively softer shoulder began."5 The Court of Appeal said that this conclusion "depended, in part on evidence given by witnesses of their recollection of the state of the road that morning, but principally on their interpretations, and those of the judge, of photographs of the scene of the accident taken that day, a week later, and a month later."6 The Court of Appeal "The photographs taken at the scene on the day of the accident show a clear difference between the left shoulder marked by gravel and the smooth central surface: blue 1/97, 3/473, 475, 476, 496, 497, 499, 502. This court is not bound by different interpretations of these photographs by witnesses giving evidence 8 years after the event, or by the interpretations of the trial judge who was not in a position of advantage."8 5 Yarrabee Coal Co Pty Ltd v Lujans (2007) 49 MVR 178 at 182 [29]. 6 Yarrabee Coal Co Pty Ltd v Lujans (2007) 49 MVR 178 at 182 [29]. 7 Yarrabee Coal Co Pty Ltd v Lujans (2007) 49 MVR 178 at 183 [37]. 8 The eight pages referred to are from volume 1 of the "blue" books. The Court of Appeal's reference to "blue" books is a reference to its practice of requiring the parties to include experts' reports and documentary tenders in books coloured blue (while oral testimony is included in black books, written submissions in orange books and the judgment of the court below in red books). Crennan The Court of Appeal did not refer to the background of the photographic evidence, or the mass of testimony evidencing it. That background was as follows. The haul road was used by many small private vehicles driven by employees of the mines and other companies, and by local graziers, but the main use was by very large road trains carrying up to approximately 200 tonnes of coal. These made about 500 movements a day, meaning that about 100,000 tonnes were carried over the road daily. The coal loads were not covered, and the trucks tended to be overfilled with coal. The road was made of clay and gravel. Thus it had to be graded. The procedure for grading was that on Sunday nights the first seven kilometres running north from the Capricorn Highway were graded, on Monday nights the next seven kilometres were graded, and so on, so that over the five nights from Sunday to Thursday the whole of the road was graded. The process was repeated each week. The effect of that procedure was that the road surface was not homogeneous in its appearance but had five separate natures. That is because the coal trucks dropped coal and dust onto the road. The huge amount of traffic and the huge weight of the trucks caused the coal to be crushed into the surface of the road and spread across the road. The result was that after three or four days the coal dust crushed into the surface created a uniform surface between the rills. The effect of that was that the central eight metres of hard road surface was to a large degree indistinguishable from the 1.5 or so metres of softer shoulder on either side. So, at least, the trial judge found in the light of the evidence. The point of the trial judge's reasoning is that although just after the road had been graded down to the underlying clay the difference between the hard centre and the softer edges was clear, the road assumed a uniform darker colour as the days passed until the next regrading, so that it was difficult to distinguish the hard centre and the softer edges. Since the plaintiff's accident happened less than six kilometres from the Capricorn Highway on a Friday, the road at that point had been graded four days earlier. An important aspect of the photographic examinations, then, was to investigate whether the appearance of the road surface was in truth deceptive, as the evidence accepted by the trial judge suggested. There was discussion in argument before the Court of Appeal of some problems that can arise in interpreting photographs. This case illustrates yet another danger – the misleading effect generated by examining copies of photographic exhibits rather than the exhibits themselves. It is not unknown for counsel on occasion to seek Crennan to overcome the danger by directing the attention of appellate courts to original photographic exhibits rather than to copies of them in appeal books. This Court, like the Court of Appeal, was taken to copies of photographs of the scene of the accident as appearing in the application books. In particular both this Court and the Court of Appeal were taken to a copy of Exhibit 3, a photograph taken a few hours after the accident. A member of this Court then requested an opportunity to examine the original of Exhibit 3. That examination revealed that the appearance of the road on the day of the accident as recorded in the original of Exhibit 3 is, at least arguably, quite different from the impression given by the copy in the application books. Assuming that the copy in the application books before this Court had the same appearance as that in the appeal books before the Court of Appeal – an assumption not controverted by counsel for the defendants – it is understandable that the Court of Appeal considered that they showed a clear difference between the left shoulder and the central surface9. On the other hand, the original, in the submission of counsel for the plaintiff, gives an impression "of a consistent layer of black coal dust all the way across the road". Whether that submission is correct was a matter which the Court of Appeal could not deal with by relying only on the copy in the appeal books. The Court of Appeal did seek access to the original exhibits of which copies appeared in the appeal books before them. It obtained that access after lunch on the first day of the hearing. It retained the originals at least for the evening after the first day's argument, from lunch on the second day and, apparently, until after judgment was reserved. However, the observations about the photographs in the judgment are not expressed as being sourced in an inspection of the originals, but in an inspection of the copies in the appeal books. Almost all the argument before the Court of Appeal was conducted in terms of how the copies in the appeal books appeared. The Court of Appeal, then, expressed its opinion on what the plaintiff regarded as a crucial question on the basis not of the actual exhibits, but of the copies in the appeal books. In contrast, the witnesses whose "different interpretations" were implicitly criticised10, were offering those interpretations on the basis of the actual exhibits. The same was true of the trial judge – who was in the advantageous position of being able to look at the actual evidence, not copies of it. 9 See [10] above. 10 See above at [10]. Crennan Even if the Court of Appeal's conclusion about the trial judge's finding of deceptiveness being "principally" based on the interpretation of photographs commends itself to the judges who conduct the rehearing, it will be for them to take into account evidence directed neither to recollections of the state of the road on Friday 18 September 1998 nor to interpretations of photographs, namely evidence of witnesses who had used the road many times and spoke of a tendency in the days after each section was regraded to assume a uniform appearance from rill to rill, so that it was difficult to see where the shoulder began. The Court of Appeal did not refer to this evidence with specificity. Had it discussed it, it might have reached the conclusion that the procedure adopted for maintaining the road meant that it was, in truth, in five sections of different appearance at any one time, and that the appearance of each section changed from day to day. Speed reduction and dryness on the road surface The plaintiff's case was that shortly after she began driving down the haul road, more than five kilometres before her accident, she saw a coal truck in front of her. As the Court of Appeal accepted, it was travelling at 80 kilometres per hour. It is not easy for small vehicles to pass large and long coal trucks on a dusty road. The plaintiff therefore communicated with the driver of the truck, Mr Routledge, by radio to ensure that it was safe to pass him. In order to execute that manoeuvre safely, she drove at 110 kilometres per hour in a 100 kilometres per hour zone. She then reduced speed to 100 kilometres per hour. Five kilometres later, she felt unsafe and allowed her speed to reduce to between 80 and 90 kilometres per hour. The accident then took place because her left- hand wheels had moved onto the softer material on the left. The trial judge substantially accepted that case in making the following findings: "the plaintiff did allow the left wheels of her vehicle to enter onto the shoulder because she was paying attention but was misled by the deceptive nature of the road surface. … [O]nce her right hand wheels were on the hard compacted section of the road way and her left hand wheels were on the softer shoulders she experienced a different 'feel' in the passage of her vehicle as well as in the steering. It was this different feel which caused her to feel unsafe and to slacken off her speed. At the same time she had to get to her right to avoid the guidepost which was within about 1.5 seconds away. Crennan She turned her steering wheel to the right but, due to the difference between the adhesion of her right wheel to the road and those of her left wheels to the softer shoulder the vehicle slid out of control ending up on the wrong side of the road". There was some brief evidence of the plaintiff that "after" she had "finished overtaking" she remembered "lowering my speed as I was feeling unsafe for whatever reason I don't recall. I just recall feeling unsafe and dropping my speed back down to between 80 and 90." Apart from that evidence, the case which the trial judge accepted was supported by the evidence of the driver behind the plaintiff, Mr Baxter Ian Smith. He too passed Mr Routledge's coal truck and drove behind the plaintiff at a constant speed of 100 kilometres per hour without the distance between them changing until he had lost sight of her as he approached a gradual curve shortly before the accident. In a statement to the police on the morning of the accident he said: "I thought I saw the car go off the road." In chief he confirmed the truth of his statement to the police, but no exploration of any difference between the vague remark quoted and his testimony took place. After cross-examination he confirmed, in answer to a question from the trial judge, that the plaintiff's vehicle went out of his sight at one stage. Mr Routledge also supported the plaintiff's case. He confirmed that Mr Baxter Ian Smith passed him just after the plaintiff did, and that they both went out of his sight. Neither Mr Baxter Ian Smith nor Mr Routledge said that the plaintiff reduced speed to 80 kilometres per hour just after passing Mr Routledge. Nor was there any evidence explaining why she should have done so. The Court of Appeal took the view that the plaintiff's evidence about reducing her speed "after" passing Mr Routledge's coal truck at 110 kilometres per hour meant that she reduced speed to 80-90 kilometres per hour immediately after passing it before increasing speed to 100 kilometres per hour and maintaining that speed until the accident. It reached that conclusion partly as a matter of construction of her evidence in context: admittedly minds may differ about what the correct construction of that evidence is. It also reached that conclusion in the light of the evidence of Mr Routledge and Mr Baxter Ian Smith, although the plaintiff's submission that that evidence seemed to favour her case had some force. It then said11: "There was … expert evidence that the [plaintiff's] vehicle was travelling at 100 km per hour when it veered to the right … Mr Kerimidas, 11 Yarrabee Coal Co Pty Ltd v Lujans (2007) 49 MVR 178 at 181 [22]-[23]. Crennan the [plaintiff's] expert, said the [plaintiff] was travelling at 101 km per hour when she suddenly veered to the right, and he explained how this was calculated: blue 1/144. The [defendants'] expert, Mr [Stuart-Smith], agreed (blue 3/358) and calculated her speed on alternative bases at between 95 and 105, or between 95 and 100 km per hour. Neither was cross examined. Accordingly the judge's conclusion that the [plaintiff] reduced her speed from about 100 km per hour to between 80 and 90 km per hour after her left hand wheels crossed onto the shoulder is inconsistent with Mr [Baxter Ian] Smith's observation and the expert evidence." (emphasis added) Mr Baxter Ian Smith did not make any observation in his primary testimony, as distinct perhaps from what he told the police, inconsistent with the plaintiff's case or supportive of the Court of Appeal's conclusion, and the Court of Appeal did not record any. That was because on the plaintiff's case the accident happened when the plaintiff's vehicle was out of Mr Baxter Ian Smith's sight: what he saw was not inconsistent with her reducing speed from 100 kilometres per hour to 80-90 kilometres per hour. What he did experience – a view of the plaintiff's vehicle travelling about 500 metres ahead, and a failure on his part to gain on it although he was travelling at 100 kilometres per hour – suggests that the plaintiff's feeling of being unsafe and of reducing speed happened while she was out of sight, just before the accident. The amended draft Notice of Appeal described this as "a crucial misunderstanding of the evidence of an eyewitness". The Court of Appeal did not analyse Mr Baxter Ian Smith's evidence in such a way as to explain why this submission was wrong. For example, it was not suggested by the Court of Appeal that, for some reason, what he told the police should be preferred to his twice-repeated oral evidence that he lost sight of the plaintiff's vehicle. As for the expert evidence, the reasoning quoted above12 depends, being based on the "blue" books13, on a comparison of evidence in chief given in the form of experts' reports. It was evidence to which counsel for the defendants referred late in his address in reply in the Court of Appeal. 12 See [23]. 13 See n 8 above. Crennan Contrary to what the Court of Appeal said, both experts were cross- examined. Mr Stuart-Smith was cross-examined over 39 pages. Mr Kerimidas was cross-examined over 13 pages. The evidence of the experts in cross-examination would have been found in the black books, not the blue books. The significance of its being overlooked by the Court of Appeal is that Mr Kerimidas gave the following evidence in cross-examination: "Q. Mr Kerimidas, for the vehicle to have taken the course across the road shown in exhibit 3, or more accurately, by the tyre marks in exhibit 3, what speed do you say it was going at that stage? A. It depends on the road surface condition, if it was full and dry, as I originally assumed. Q. What is the first word? A. Full as in full thickness, and dry, approximately 101, 102 kilometres per hour. Under the conditions as I see them in the photographs now it would be marginally over 80 kilometres per hour." Hence Mr Kerimidas's evidence in cross-examination was that he had not seen the photographs of the road on the day of the accident until the day he gave evidence. He was shown them only while giving evidence in chief. That is, Mr Kerimidas was among the many witnesses whose evidence involved a perusal of the original photographic exhibits, in contrast to the Court of Appeal's expression of its conclusions as resting not on the originals, but on the arguably defective copies in the appeal books. The materials in this Court do not suggest that the parties took the Court of Appeal to this evidence of Mr Kerimidas in cross-examination. To treat Mr Kerimidas's evidence as corresponding with that of Mr Stuart-Smith, then, depends on whether the road surface conditions were "full and dry". This is not a topic the Court of Appeal analysed at all. The trial judge considered a great deal of conflicting evidence about whether the hard surface of the road was slippery and concluded that it was not. However, there was much evidence that it was the practice to water the road each night in order to reduce dust in the daytime and thus make travelling along the road safer. The amount of water used was between 100,000 and 150,000 litres. The water tank driver, Mr John Jellick, who arrived at the accident scene soon after the accident had taken place, said that he had watered the road that night and that it was still "damp". Mr Kelvin Pilcher said it was "very damp". Mr James McIver said it Crennan was "wet". Mr Routledge said it "had been watered". Mr Barry Jellick said the aim of the watering process was to make the road as wet as possible, and that the process was carried on until 5.30am or 6.00am. Mr Joseph Comiskey said the road was "moist". The accident took place soon after dawn on a spring day; as counsel for the defendant said, the weather at the time of the accident was overcast so that there was no significant drying effect from sunlight. There was thus evidence that even if the centre of the road was not slippery and even if the shoulder did not have puddles, neither was "full and dry". It was not possible to use Mr Kerimidas's evidence in chief to reject the trial judge's acceptance of the plaintiff's case without carrying out two steps. The first step was to take his evidence in cross-examination into account. The second step was to assess his evidence in cross-examination against the primary evidence of road conditions, which included the evidence of these six witnesses. These two steps were not carried out by the Court of Appeal. Soft shoulders and the direction of travel In its brief consideration of the question whether the composition of the road changed as between the centre and the shoulders, the Court of Appeal said14: "There was much debate and some confusion about whether the shoulder was relevantly 'soft'. However some things were quite clear – the surface of the shoulder had not been broken, the tyre marks were only in the fine material, and up to the sudden deviation to the right they were straight. The [plaintiff] did not lose control of her vehicle until she abruptly steered it to the right." The Court of Appeal proceeded on the assumption that the tyre marks were straight, because it had earlier referred to evidence that they were straight, and said "the tyre marks indicate that the [plaintiff's] vehicle ran onto the shoulder because it maintained its course when the road was bending to the right."15 The Court of Appeal's conclusions about the lack of softness in the shoulder and about the direction of travel are assertions which would involve explaining away or otherwise dealing with the contrary evidence of a mining engineer, Mr Paul Thomas O'Loughlin, which was apparently accepted by the trial judge (as the 14 Yarrabee Coal Co Pty Ltd v Lujans (2007) 49 MVR 178 at 183-184 [38]. 15 Yarrabee Coal Co Pty Ltd v Lujans (2007) 49 MVR 178 at 182 [25]. Crennan Court of Appeal noted) and on whom the Court of Appeal relied in one respect. Mr O'Loughlin said that the tyre marks in the shoulder ran parallel with the edge of the road at only about one tyre width off the road for some metres and then described an arc away from the road to a maximum distance of 75 centimetres from the rill. Mr O'Loughlin also testified that the shoulders were soft. And there was other evidence to this effect. If taken into account and accepted, that evidence, both as to the relatively soft shoulder and the arcing of the vehicle's left-hand tyres rather than travelling straight, suggested that the plaintiff's vehicle was being dragged to the left by the difference in friction between the hard road and the relatively softer shoulder, causing the plaintiff to wrench the wheel to the right in an attempt to bring herself to safety on the road. The arcing of the vehicle's wheels and the wrenching back to the road, on that view, would all have been part of the process of losing control, and are inconsistent with the Court of Appeal's opinion that what caused the loss of control was that the plaintiff "abruptly steered it to the right." If the evidence had been taken into account but not accepted, it would be necessary to explain why it had not been accepted. The absence of any explanation for why it was not accepted suggests that it was not taken into account. It was, however, an important element in the plaintiff's resistance to the appeal. The defendants' position in this Court A significant part of the submissions advanced for the defendants did not attempt to defend or deal with the Court of Appeal's resting of its conclusions about the photographs on the copies rather than the originals, its overlooking of Mr Kerimidas's evidence in cross-examination, its apparent misconstruction of Mr Baxter Ian Smith's evidence, and its failure to deal with evidence of the type which Mr O'Loughlin gave as to softness of the shoulder and the direction of travel. Instead much of their opposition to a grant of special leave rested on an endeavour to persuade this Court of the correctness of the Court of Appeal's conclusions by reference to other material. There is some force in the plaintiff's submission that the defendants had attempted to meet her "legitimate criticisms of the conduct of the case in the Court of Appeal by asking this court to embark on the rehearing which the Court of Appeal should have conducted but did not." Conclusion The criticisms advanced by the plaintiff should, in the respects outlined above, be accepted16. The primary difficulty with the reasons for judgment of the 16 See [10]-[29]. Crennan Court of Appeal is not that analysis reveals that the conclusions stated in them are necessarily wrong. It is that important steps in the Court's reasoning are shown not to be valid. In that sense the Court of Appeal has not reheard the matter as it should17. Counsel for the plaintiff's preferred position was that this Court should not remit the matter to the Court of Appeal, but perform the function which the Court of Appeal did not perform and decide for itself whether the trial judge's orders should stand or not. That preferred position was reflected in various factual arguments not summarised above directed to showing errors in the Court of Appeal's reasoning, which, even if they were errors, could not be said to reveal a failure to give a rehearing. On an appeal to this Court, in the normal case, its primary duty is to make the order the intermediate appellate court ought to have made. Ordinarily errors of the kinds discussed above are taken into account in deciding what order the intermediate appellate court ought to have made. But to make the order which the Court of Appeal ought to have made is, in the circumstances of this case at least, something which this Court should not do until the Court of Appeal has complied with s 75A(5) of the Supreme Court Act and conducted a rehearing. While it is possible for parties dissatisfied with the results of trials to seek special leave to appeal directly to this Court, and while this course was not uncommonly employed about 40 years ago, the standard practice now is for a rehearing to take place in an intermediate court of appeal first. To adopt the plaintiff's preferred course would in substance be to entertain an application for special leave to appeal directly from the trial judge's orders. It is better to give all parties in this case the opportunity to have the benefits of a rehearing in the Court of Appeal – benefits which they have not yet received. That is particularly so in factual circumstances illustrated by this case. There are grave difficulties in assessing the causes of car accidents which took place without eyewitnesses, save for plaintiffs inevitably open to influence by self- interest and understandably having limited recollection. They are difficulties which it would be hard for this Court to grapple with in the absence of reasons for judgment from an intermediate appellate court generated by a rehearing directed to overcoming those difficulties. A question arises as to costs. Counsel for the plaintiff did not submit that the defendants were responsible for the Court of Appeal's failure to conduct a rehearing. On the other hand, the defendants strongly resisted both the special 17 See Dwyer v Calco Timbers Pty Ltd (2008) 82 ALJR 669 at 678 [51]; 244 ALR 257 at 269; [2008] HCA 13. Crennan leave application and the appeal in this Court. An order that the defendants pay the costs of the plaintiff is thus not unjust. The Court of Appeal's orders, including its order as to the costs before it, must be set aside. The appropriate order for the costs of the hearing in the Court of Appeal must abide the decision of the Court of Appeal which rehears the matter in future, for the outcome of that future rehearing on the merits would be a central factor on the costs issue. Orders The following orders should be made. Special leave to appeal against the orders of the Court of Appeal of the Supreme Court of New South Wales made on 4 December 2007 is granted, the appeal is treated as having been heard instanter, and the appeal is allowed. The orders made by the Court of Appeal are set aside. The matter is remitted to the Court of Appeal for a rehearing of the respondents' appeal to that Court. The respondents are to pay the costs of the applicant in the special leave application and the appeal to this Court. The costs of the appeal to the Court of Appeal which led to the orders of 4 December 2007 be in the discretion of the Court of Appeal on the rehearing.