The appellant appealed from a decision of the High Court dismissing his claim for damages arising out of an accident. His appeal was based on the ground that the trial judge made no findings as to distance or other important issues raised by the evidence and that his finding that the plaintiff was solely to blame for the accident was against the weight of evidence. The respondent, while conceding that the trial judge made no findings on important issues submitted that there was in fact sufficient on record to enable the court to make its own findings of fact and to determine the issue.
Held:
(i) An appeal from a decision of a judge sitting alone is by way of rehearing on the record and the appellate court can make the necessary findings of facts if the findings were conclusions based on facts which were common cause or on items of real evidence, when the appellate court is in as good a position as the trial court.
(ii) Where questions of credibility are involved an appellate court which has not had the advantage of seeing and hearing the witness will not interfere with the findings of fact made by the trial judge unless it is clearly shown that he has fallen into error.
(iii) An appellate court will normally be reluctant to order a new trial where it appears from the record that there was sufficient evidence before the trial court to make the necessary findings of fact. In such circumstances the normal course will be to send the matter back to the trial judge for these findings to be made. Where, however, in addition to the necessity of making findings further evidence will be required in a number of important areas a new trial will normally be ordered, particularly where both parties indicate that they ask for a new trial.
