Supreme Court New South Wales Medium Neutral Citation: Matinca v Coalroc [2021] NSWSC 1720 Hearing dates: 31 May; 1 and 2 June 2021 Date of orders: 2 June 2021 Decision date: 02 June 2021 Jurisdiction: Common Law Before: Campbell J Decision: Admit the subpoena and the work order produced thereunder as Exhibit DCB 209 Catchwords: EVIDENCE – relevance – work order the subject of a subpoena relates to work carried out on a roadway after the motor vehicle accident – wide scope of subpoena – cause of loss of control of vehicle a fact in issue – documents admitted Legislation Cited: Evidence Act 1995 (NSW), s 55 Cases Cited: Nil Texts Cited: Nil Category: Procedural rulings Parties: Troy Anthony Matinca (Plaintiff) Coalroc Contractors Pty Ltd (Defendant) Representation: Counsel: P. Cummings SC with P. Williams (Plaintiff) M. McCulloch SC with D. Stanton (Defendant) Solicitors: Burke Mead Lawyers (Plaintiff) HWL Ebsworth Lawyers (Defendant) File Number(s): 2019/111036 Publication restriction: Nil EX TEMPORE Judgment 1. Mr McCulloch of senior counsel, who appears with Mr Stanton for the defendant, tenders a subpoena to produce documents directed to the Lake Macquarie City Council by its proper officer and a work order relating to certain heavy patching work which, by reference to the subpoena, occurred on a stretch of Macquarie Street, Warners Bay on 10 May 2016. Mr Cummings of learned senior counsel who appears with Mr Williams for the plaintiff objects to its tender. I interpolate that he also tenders, in support of his objection, another document also apparently produced by the council under the same subpoena showing other work apparently carried out on the roadway referred to as Macquarie Road sometime on or after 25 May 2016. 2. The plaintiff's claim arises out of what is referred to as a single-car collision. He was the driver of a vehicle which left the carriageway of Macquarie Road, Warners Bay at about 8:20 pm on Sunday, 17 April 2016. He suffered very serious personal injury as a result of that single-car collision. When he left the roadway his vehicle sideswiped one tree on the right-hand side of the carriageway in his direction of travel and came to rest after colliding with another tree on the other side of the carriageway. 3. His claim is against his employer. He worked as an underground coalminer at the Ulan West coalmine near Mudgee as a contractor for a labour hire company who provided labour to the mine operator. His case against the employer, in simple terms, is that the employer was negligent in permitting him to travel home by road, a journey of between two and a half and three hours, in circumstances where it knew, or should have known, he was at risk of injury due to his work-induced fatigue. I will leave to one side, for the time being, the acts or omissions relied upon by the plaintiff as constituting negligence. 4. Mr Cummings objects to the tender of the documents on the basis of relevance. Section 55 of the Evidence Act 1995 (NSW) provides as follows: The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. 1. A fact in issue in these proceedings is the mechanism of the plaintiff's loss of control leading to his vehicle leaving the carriageway and striking the tree as I have previously described. There is no dispute that the plaintiff suffered a severe traumatic brain injury and that he is affected by both retrograde and post-traumatic memory loss. It is not challenged that he has no recollection of the circumstances of his accident. The case for the plaintiff, and for that matter the defendant, depends principally upon circumstantial evidence, and it might be said in that regard that the principal source of what the parties contend will be available inferences arises out of the competing opinions of the traffic engineers qualified by them respectively to give expert evidence in the case. 2. Although not in evidence so far, I have received copies of their reports to prepare me to hear their evidence and to rule upon objections in due course. To put things in the simplest terms, the principal hypothesis of Mr Johnston, to be called by the defendant, is that speed was the principal factor leading to the accident. On the other hand, Mr McDonald, who has been qualified and will be called on behalf of the plaintiff, hypothesises that work-induced fatigue is the principal factor leading to the accident. In the course of his report, Mr Johnston referred to his inspection of the roadway leading him to conclude that significant resurfacing of the relevant part of the carriageway had taken place following the accident. Maybe he made inquiries as to that occurrence, but on my recollection of the report, any such inquiries are not made entirely clear. Nor is it clear why they, of themselves, without direct evidence, would be admissible. 3. According to Mr Johnston the condition of the road surface when the accident occurred may be relevant to determining the cause of Mr Matinca's accident. I don't understand Mr McDonald to disagree as to relevance, as opposed to significance. Worn bituminous concrete is likely to provide a lower coefficient of friction between the tyres of the plaintiff's vehicle and the surface of the roadway. That is to say, traction is reduced and that too is a factor which may contribute to, or account for, what happened, especially if excessive speed was involved. 4. As the language of s 55 itself makes clear, all questions of the admissibility of evidence have to be decided on the assumption that the evidence will, in due course, be accepted. That assumption, of course, may well dissolve in the process of evaluation of the evidence when all of the evidence is in and the case for each party has closed. 5. I accept the force of Mr Cummings's submissions that it is far from clear that the work the subject of the work order relates to the portion or location of or on the roadway where Mr Matinca's loss of control was actually initiated. Indeed, I have been informed by Mr Cummings, without objection by Mr McCulloch, that the stretch of the roadway, the subject of the subpoena, covered some 2.1 kilometres, a not insignificant distance. I am also aware from previous objections taken to evidence and discussion of those matters by counsel that the defendant will attempt to have me receive into evidence another document which: (a) refers to corrugations on the roadway, and (b) the fact that work was undertaken at the location about three weeks later. That evidence would, if admitted and if accepted, tie in with work done on or about 10 May 2016. 6. I am not making any advance ruling in relation to that very contentious material, however, it does illustrate that although there is much to be said for the submissions advanced by Mr Cummings, given the relatively low level of the test provided by s 55 for admissibility, that is to say the assumption that the evidence will be accepted and its capacity to rationally affect an assessment of the probability of fact, whether it does or does not in the end, I am satisfied that the work order is both a business record of the council, there was no issue about that, and relevant to a fact in issue in the case and I propose to admit it, together with a copy of the subpoena, which caused its production and that material together, that is the subpoena and the work order will be admitted as Exhibit DCB 209. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 July 2022