Matinca v Coalroc (No 3) [2021] NSWSC 1721

Supreme Court New South Wales

Medium Neutral Citation: Matinca v Coalroc (No 3) [2021] NSWSC 1721 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: Delete the adjective "bad" out of the form and otherwise admit the document as Exhibit DCB 403-408 Catchwords: EVIDENCE – relevance – ambiguous use of descriptor – opinion of a layperson 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 SC has tendered an accident notification form lodged under the Motor Accidents legislation on behalf of the plaintiff in respect of the subject accident. The form is not signed by the plaintiff but was signed by his father on what appears to be 13 May 2016. The main purpose of the tender, and I interpolate it is quite clear the plaintiff's father is not to be called by either party, is to obtain evidence of "the brief description of the accident" appearing on page 4 of the form. Like the judgment I have just delivered, this account omits any reference to the aspect of 'fatigue' upon which the plaintiff's case turns. 2. The defendant submits its absence is telling and should be treated as an inconsistency adverse to the plaintiff's case. Having said that, Mr McCulloch accepts, and Mr Cummings SC submits, that the first part of the narrative is covered by my earlier ruling, or at least for the same reasons as my earlier ruling, is not admissible. In short, those reasons are, first, that it has not been shown that the plaintiff's father had personal knowledge of the facts asserted and, secondly, they are, in any event, inadmissible matters of opinion and I will exclude that section of the material. 3. The remaining contentious part is in the following terms: "*This section of bad road has since been repaired and resurfaced three weeks after this accident". 1. Earlier today I gave reasons for admitting a work order document from the local council in relation to patching of the road which took place on 10 May 2016 and the same reasons I advanced then, as Mr Cummings accepts, suggest that this contentious portion is admissible. 2. I should add that I infer for the purpose of admissibility, given the active voice used by the plaintiff's father when referring to the subsequent repairs, that he has personal knowledge that those repairs took place or at least has obtained information about it from a person who has. Mr Cummings, with respect to him, accepts that this ruling is open to me. For that reason, he has focused upon the opening words of the construct, "this section of bad road". In particular, he objects to the admission of the adjective "bad". He submits that it is ambiguous and capable of many different meanings, not necessarily being relevant to the safety or efficiency of the carriageway as a means of passage and that that consideration deprives it of any probative value at all. 3. Moreover, so far as those matters are concerned, the efficiency or safety of the road surface is a matter for expert evidence and not lay opinion. Accordingly, he submits I should reject the adjective as being an impermissible opinion by a layman. It does not mean much for me to say that the adjective does not add much one way or another. Probably, the important consideration is that the entry provides some evidence of the repair of the road which might be taken as corroborating the information contained in the works order, taken in conjunction, possibly, depending upon what one makes of it, in the end, with the expected evidence of Mr Grant Johnston which I referred to in my earlier judgment today. 4. However that may be, I am of the opinion that the objection to the word "bad" should be upheld for the reasons expressed by Mr Cummings in his submission. In particular, I am persuaded that for it to have any probative value whatever for the purpose of s 55 of the Evidence Act 1995 (NSW), one would have to be able to admit it as an expert opinion, as I have said, as to the efficiency and safety of the surface of the roadway as a means of passage. 5. I will delete the word "bad"; I will take out the part not in issue; and I will otherwise admit the document as Exhibit DCB 403-408.