Matinca v Coalroc (No 4) [2021] NSWSC 1722

Supreme Court New South Wales

Medium Neutral Citation: Matinca v Coalroc (No 4) [2021] NSWSC 1722 Hearing dates: 31 May; 1, 2 and 3 June 2021 Date of orders: 3 June 2021 Decision date: 03 June 2021 Jurisdiction: Common Law Before: Campbell J Decision: The impugned answer is admitted. Catchwords: EVIDENCE – expert evidence – whether opinion within expert's specialised knowledge – whether answer elicited in expert report a mere ipse dixit – discretion to exclude or limit the use of evidence – answer admitted Legislation Cited: Evidence Act 1995 (NSW) ss 80, 135 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. I am dealing with the question of the admissibility of the opinion of Dr Anup Desai, as expressed in his report of 25 June 2019. Dr Desai is a legally qualified consultant physician in respiratory and sleep medicine. It is clear from his curriculum vitae, which is attached to his report as required by the Rules, that he is an expert and he is highly qualified to express opinions in this matter by reason of his qualifications, which include a PhD from the University of Sydney. His thesis is entitled Obstructive Sleep Apnoea and Driver Performance; Prevalence, Correlates and Implications for Driver Fatigue. It is also quite clear to me from the reference list he has attached to his report to document the science he has sought to explain in the body of it that he is a significant scholar in the field. He has published, with others, in this area an article in a peer review journal of record for the medical profession, The Medical Journal of Australia, in 2003. The paper is entitled, 'Total Distraction: A Case Series of Fatal Fall-Asleep Road Accidents and their Medicolegal Outcomes'. 2. Particular objection is taken by Mr McCulloch SC, who appears with Mr Stanton for the defendant, to the opinion expressed at pars 48 and 49 of the report. Mr Cummins SC, who appears with Mr Williams for the plaintiff, presses the evidence. The doctor was asked a question in the following terms: "In your opinion, was our client in all probability suffering from fatigue at the time of his motor vehicle accident on 17 April 2016? If so, what was our client's probable level of fatigue? Please provide reasons". 1. I have remarked in the course of argument that the expression "in all probability" is an unfortunate one. Accepting that Dr Desai is certainly an expert, and that it is always permissible to direct leading questions to an expert witness, this expression evokes a degree of certainty higher than the standard of proof required in civil cases. 2. In any event, the doctor has expressed the opinion that "[i]n all probability [Mr Matinca] was suffering from fatigue at the time of his motor vehicle accident on 17 April 2016." He goes on to answer the other questions in par 49. 3. Although initially attracted to Mr McCulloch's argument that this was really an ipse dixit which purported to decide an ultimate question in the proceedings, I am persuaded by Mr Cummings, notwithstanding what I regard as the infelicity of the language employed, that Dr Desai is qualified by reason of the matters I have referred to and having regard to the science he seeks to explain in the body of his report to express an opinion about the probability that Mr Matinca was suffering from fatigue at the time of the accident, having regard to the facts he has been asked to assume. Section 80 of the Evidence Act 1995 (NSW) should not be overlooked, although generally speaking judges still tend to disapprove of experts expressing opinions that might go to the ultimate question. 4. I am of the view that Dr Desai is qualified to express an opinion about the degree of probability of Mr Matinca having suffered from fatigue. I direct myself that expert evidence is simply evidence in the case and it commands no higher entitlement to weight than any other evidence led in the case. The question of whether the plaintiff has proved on the balance of probabilities that he was fatigued at the time of the accident and that that fatigue materially contributed to the occurrence is a matter for me to decide on the basis of all of the evidence in the case, so far as I find it acceptable after my evaluation of it in accordance with the usual judicial reasoning processes. 5. Mr McCulloch also argued that I should exclude the evidence by exercise of the discretion that is vested in me under s 135 of the Evidence Act. He submits that the probative value of the doctor's opinion is substantially outweighed by the danger that it would be unfairly prejudicial to his client, may be misleading or confusing, or result in an undue waste of time. It would only be unfairly prejudicial to Mr McCulloch's client if I misused the evidence in my reasoning process in some illogical or irrational way. Given that I am bound by my judicial duty to provide reasons for my decisions, such illogicality or irrationality would be manifest and subject to correction on appeal. I doubt that I will be misled or confused by the evidence. 6. I have already expressed an opinion about the manner in which it has been expressed which I will bear in mind when assessing: (a) whether I accept it, and (b) what weight I should afford it in the light of other evidence. The evidence would only result in undue waste of time if the cross-examination about it is likely to be unduly prolix, which I am confident it will not. In the circumstances, I am satisfied that the occasion to exercise the discretion under s 135 has not been engaged and I refuse that application. I allow paragraph 48 to stand.