Supreme Court New South Wales Medium Neutral Citation: Matinca v Coalroc (No 2) [2021] NSWSC 1532 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 claim form MFI 4 as Exhibit 3 Catchwords: EVIDENCE – business record – where plaintiff's father made representations on a form contrary to plaintiff's present case – whether father had or reasonably be supposed to have had knowledge of asserted fact – whether knowledge directly or indirectly supplied to father – no evidence to support contention EVIDENCE – admissions – whether son adopted his father's statements by signing the form – where son had no recollection of events – whether it is reasonably open to find the son made the admission – form admitted Legislation Cited: Workers Compensation Act 1987 (NSW), s 10 Evidence Act 1995 (NSW), ss 69, 78, 81, 87, 88 Cases Cited: Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 Lustre Hosiery Ltd v York (1935) 54 CLR 134; [1935] HCA 71 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. I am dealing with the question of the admissibility of MFI 4 which is a workers compensation claim form submitted in relation to the plaintiff's accident, the subject of these proceedings for damages, which occurred on his way home from work at the Ulan West coalmine near Mudgee to his place of abode at Warners Bay. As he was a worker employed in or about a coalmine the former journey provisions contained in s 10 of the Workers Compensation Act 1987 (NSW) continued to apply to him notwithstanding the repeal of that provision in respect of workers generally. 2. It is not in dispute in this case that the plaintiff suffered quite serious personal injury in what I have referred to already in a different judgment as a single-car collision which occurred, as I have said, on his way home from work, on 17 April 2016 on Macquarie Street, Warners Bay, about 10 minutes from his home at Mount Hutton. It is also not in dispute that as a result of that accident and the injuries sustained, the plaintiff suffered a traumatic brain injury of some severity and as a result has no memory of the accident or, indeed, of events preceding it or for quite some time after it. MFI 4, as I have said, is the workers compensation claim form, and I infer from looking at it that it was, in the first instance, signed by the plaintiff's father on 28 April 2016 at a time when he, that is to say the plaintiff, may yet have been subject to post-traumatic amnesia. 3. The plaintiff was cross-examined in relation to the document. As the evidence stands, although on one view it appears that the document contains writing in the hand of two persons, leaving aside one matter I will return to directly, the plaintiff identified it all to be the hand of his father whom he said is ambidextrous and that accounts for the difference in appearance of some passages from others. The point I am returning to is the plaintiff did eventually sign the document, and although he was perhaps not asked directly about this, his signature bears the date 27 July 2016 which for present purposes, I infer, is the day that he actually signed the document, by which time he had emerged from his post-traumatic amnesia, but the retrograde amnesia continues to affect him now. 4. The substantial matter, it must be said, that the defendant seeks to have introduced into evidence is the narrative of the occurrence of the accident contained in that part of MFI 4 calling for the provision of "details of injury". In that section the plaintiff's father has written, "Driving home from work, lost control of car in slippery wet conditions, sideswiped one tree then slammed into another tree". As I have explained earlier, the plaintiff's case is that the loss of control resulted from his condition of work-induced fatigue and that in the circumstances the defendant, as employer, is negligent for failing to exercise reasonable care to protect him from the consequences of that condition on his long drive home. 5. The defendant's case, I infer, will be in due course that from that narrative which it submits I would accept the absence of any mention of any condition of fatigue is telling and, indeed, is inconsistent with the plaintiff's case. I would, it is submitted, prefer the account in the relatively contemporaneous claim form to the hypothesis put forward in the circumstantial evidence, particularly arising out of the expert evidence to be tendered on behalf of the plaintiff. 6. Mr Cummings SC objects to the tender of the claim form and in particular to the details of injury that I have referred to. Mr McCulloch SC propounds the tender on the basis of the provisions of s 69 of the Evidence Act 1995 (NSW) as a business record, and alternatively as an admission under s 81 of the Evidence Act. The grounds of objection put forward by Mr Cummings are, I think, threefold. First, he submits that, to the extent to which the details of injury contain asserted facts for the purpose of s 69, none of the conditions specified in subs (2), par (a) or (b) of s 69 has been satisfied. In any event, he submits that the statement of the father who was not an eyewitness can be no more than opinion and runs foul, therefore, of the decision of the High Court of Australia in Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 ("Jackson") and, finally, that given the evidence of the plaintiff, the supposed admission is of so little weight as to have no probative value and is, therefore, irrelevant. 7. Mr McCulloch made it quite clear, so far as s 69 was concerned, he relied upon the provisions of par (b) of subs (2). He accepts that the plaintiff's father is not a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. On the other hand, he submits that the material provided by the father, I can infer for the purpose of the admissibility of the evidence, is based upon information directly or indirectly supplied to him by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. 8. In my opinion, both of Mr Cummings' objections on this score are made good. It seems to me that, on the evidence, there is no evidence that there was any eyewitness to the event who could have had personal knowledge of what happened to cause Mr Matinca's SUV to leave the roadway and who could have provided that information directly or indirectly to the plaintiff's father. At best, one may infer that the father spoke to the investigating police officer, himself not an eyewitness, or perhaps inspected the scene of the accident at some time after the accident and purported to draw his own conclusions from what he saw of the scene of the accident, or perhaps what he believed he knew about prevailing conditions. 9. It seems to me that Mr Cummings's submissions accord with the decision of the High Court to which I have referred in Jackson. Although not part of the ratio decidendi of that decision, I refer to the statement of French CJ, Heydon and Bell JJ at [17] in relation to whether it could be said that either of pars (a) or (b) of subs (2) were satisfied. It is unnecessary to refer in detail to the facts in Jackson, but their Honours say par (a) "cannot apply, because the makers of the representation … did not have personal knowledge [of the matter to which they referred] and could not reasonably be supposed to have had it, since [the event] had happened sometime before they arrived". The same is true here of the plaintiff's father. Their Honours also said that s 69(2)(b) "cannot apply, because even if it were the case that [the persons making the representation] were told by bystanders [what had happened], the bystanders did not have personal knowledge [of the event] and could not reasonably be supposed to have had it". 10. Their Honours also went on to cast doubt on the question of whether an opinion as to what happened could be an asserted fact, and while acknowledging authority to that effect, cast doubt upon that construction, but more directly at [41] their Honours held that for a lay opinion as to what happened to be admissible for the purpose of s 69, by reference to the exception to the hearsay rule created by s 78, it was necessary for the person who expressed the opinion to have seen, heard or otherwise perceived the matter or event. The person expressing the opinion, for the reasons I have rehearsed, the plaintiff's father, did not fall into that category. I am not satisfied that the facts asserted and the details of injury are admissible as part of a business record under s 69 of the Evidence Act. 11. Turning then to the question of whether the matter is admissible as an evidential admission under the provisions of s 81 of the Evidence Act, I acknowledge that the plaintiff's evidence, leaving aside the fact that it might be said to have had an air of ambiguity about it, was to the effect that he had read the document before signing it on 27 July 2016 and by that means, it is submitted, he either adopted or perhaps ratified what his father had said about what happened. I repeat that it is not in dispute that he has no recollection of the events. Even so, a person who is a party to litigation may make a statement against their interests out of court which is admissible as an admission and an exception to the hearsay rule. 12. This is not a case to which s 87 applies, and it is not suggested by Mr McCulloch that the plaintiff's father had his authority to make the admission. However, it does seem to me that, at law, a principal may ratify the words or actions of a putative agent after the event. I am also cognisant of the provisions of s 88 of the Evidence Act which is in the following terms: For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission. 1. That provision is an important one in terms of admissibility. It makes clear that at the point of admissibility it is not a matter for the court to weigh and assess the probative value of the admission. It is sufficient, if the court is satisfied that evidence of the admission is admissible if it is reasonably open to find that the admission was made. Given the evidence from the plaintiff and allowing for what I have referred to as the degree of ambiguity attending it, it does seem to me that it is open to find, I need not make that finding now, and indeed it would be inappropriate to do so, that the evidence is capable of supporting a finding that the admission was made. For that reason, I am of the view that MFI 4 is admissible pursuant to ss 81 and 88 of the Evidence Act. I should say, however, the effect of the judgment of Dixon J (as the Chief Justice then was) in Lustre Hosiery Ltd v York (1935) 54 CLR 134; [1935] HCA 71 is not entirely lost upon me. MFI 4 is admitted as Exhibit 3. ********** 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