LEGAL PRINCIPLE: CIVIL PROCEDURE – Visit to Locus in Quo – Procedure and Proper Use of Observations
PRINCIPLE STATEMENT
When there is conflicting evidence as to physical facts, a judge may use their own observations to resolve the conflict, but it is not open to them to substitute the result of their observation for sworn testimony nor to reach conclusions upon something they have observed in the absence of any testimony on oath as to the existence of the facts they have observed.
RATIO DECIDENDI (SOURCE)
"When there is conflicting evidence as to physical facts, I have no doubt that he may use his own observations to resolve the conflict, but I do not think it is open to him to substitute the result of his observation for the sworn testimony nor to reach conclusions upon something he has observed in the absence of any testimony of oath as to the existence of the facts he has observed."
EXPLANATION / SCOPE
Locus in quo visits (site inspections) serve limited purposes. Judges may: use observations to resolve conflicting sworn testimony about physical facts (e.g., if witnesses disagree about distance, judge’s measurement can resolve conflict). Judges may not: substitute observations for testimony (using what they saw instead of sworn evidence), or base findings on observations where no testimony addressed those facts. The visit supplements testimony, not replaces it. This limitation serves: ensuring findings rest on tested evidence (subject to cross-examination), preventing judges from becoming witnesses, and maintaining adversarial process integrity. Observations can resolve conflicts in existing testimony but cannot create new evidentiary foundations. Parties must present evidence; judges assess it, potentially aided by site observations. This balances judges’ need to understand physical context against procedural fairness requirements.