Supreme Court New South Wales Medium Neutral Citation: James Mark Waugh & Ors v TAFE NSW Western Institute & Anor [2013] NSWSC 1628 Hearing dates: 28/10/13 Decision date: 28 October 2013 Jurisdiction: Common Law Before: Campbell J Decision: (1) I allow paragraph 7 of the statement of Ms Lucy Piec made to the police on 19 September 2009; (2) I allow paragraph 8, but I limit the latter to a statement of Miss Piec's personal experience of the horse on the occasion on which she rode it. Catchwords: EVIDENCE - admissibility of witness statement to police - whether evidence about the temperament of the horse known as "Dargo" should be excluded pursuant to s135 Evidence Act 1995 (NSW) Legislation Cited: Evidence Act 1995 (NSW) Category: Procedural and other rulings Parties: James Mark Waugh (plaintiff) Juliana Waugh (plaintiff) Jonathan Waugh (plaintiff) TAFE NSW Western Institute (first defendant) Glenn Alexander Manton (second defendant) Representation: Counsel: J Morris with R Bianchi (plaintiff) M Fordham SC (first defendant) M McCulloch SC with T Berberian (second defendant) Solicitors: Burke Elphick Mead (plaintiffs) Bartier Perry Pty Ltd (first defendant) HWL Ebsworth (second defendant) File Number(s): 2012/83757; 2012/83775; 2012/91788 EX TEMPORE Judgment Admissibility of paragraphs 7 and 8 of statement of Lucy Alexandra Piec; transcript p.76 1Mr McCulloch of Senior Counsel, who appears with Ms Berberian for the second defendant, objects to paragraph 7 of the statement of Ms Lucy Piec made to the police on 19 September 2009 describing her experience of the horse known as Dargo in these proceedings when she rode it in the jillaroo course at Dubbo TAFE in March 2009. 2Mr McCulloch invokes s135 of the Evidence Act 1995 (NSW) and says that I should exclude this evidence as falling into that category where its probative value is outweighed by its prejudicial effect to his client and, in taking that objection, he draws on, by analogy, the tendency rule and the understanding upon which that rule is based, that tendency evidence (a) may tend to be unreliable and (b) may be unfair because it may catch a party by surprise. I put the matter broadly. 3The issues in the case clearly involve questions about the basic temperament of the horse known as Dargo. What Ms Piec says about her experience of the horse is not being tendered as opinion evidence in any way, but rather simply as evidence of primary fact as to how the horse behaved on a prior but proximate occasion to the occasion the subject of these proceedings, the tragic accident involving Sarah Waugh on 23rd March 2009. 4I am entitled to know that the parties have, in preparing the case, obtained opinions from as many as four experts in the field of horse behaviour. There seems to be no doubt that at least some of the experts are entitled to provide evidence to the Court in relation to horse behaviour and the suitability of horses for the type of course that was being conducted by the first defendant in February and March of 2009. 5It seems to me that the evidence of Ms Piec is relevant, inasmuch as if it is accepted it may be evidence about which the experts are entitled to express opinions concerning Dargo's temperament and his suitability for use in this course. 6I am not persuaded that this evidence falls impermissibly into anything which might approximate the tendency rule, nor am I persuaded that the admission of this evidence is in any way unfair to the second defendant. 7In my judgment, the evidence of Ms Piec, if in the end accepted, tends to prove relevant facts which will assist the experts to provide opinions which, in turn, will allow me to make necessary findings one way or the other about the temperament of Dargo and his suitability for use in this course. 8I allow paragraph 7 of Ms Piec's statement. 9During the course of argument, I made it clear that I would understand paragraph 8, notwithstanding its syntax, as no more than a statement by Ms Piec about her individual experience of riding the horse rather than an attempt to express any broader opinion about his temperament. Mr McCulloch, in his usual fair way, indicated that if I was against him in relation to paragraph 7, he would not press his objection to paragraph 8, provided I limited the use to which I would put that material in the way I have indicated. I allow paragraph 7. I allow paragraph 8, but I limit the latter to a statement of Miss Piec's personal experience of the horse on the occasion on which she rode it. ********** 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: 06 November 2013