Abalos v Australian Postal Commission (1990) 171 CLR 176

Ms Abalos was a post worker who was diagnosed with the “tennis elbow” condition. She brought a claim of negligence seeking damages against her employer in the Supreme Court of New South Wales. Expert witness, professor Fergusen testified to “unsatisfactory work stations”. Trial Judge found in favour of Ms Abalos.

Commission appealed to the Court of Appeal when it was found for the commission by a 2:1 split. Ms Abalos appealed to the High Court. The High Court unanimously allowed the appeal on the basis that it is not open to the appellate court to act on the same evidence and reverse the finding of the lower court unless the appellate court could conclude that the primary judge had failed to use or palpably misused the advantages of seeing and hearing the witness first hand.

Conclusion: this case highlights the limits of appellate courts.

The subtle nuances of demeanour of a witness is only available to the trial judge and not the appellate courts and in that regard, appellate court is at a disadvantage. Therefore, any finding of fact arrived by the trial judge based on seeing or hearing or assessing  demeanour of the witness first-hand cannot be reversed by the appellate court unless the trial judge had failed to use or had palpably misused that advantage.

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