Gilbey v Murray (No 2) [2011] NSWDC 262

District Court New South Wales

Medium Neutral Citation: Gilbey v Murray (No 2) [2011] NSWDC 262 Decision date: 31 August 2011 Before: Cogswell SC DCJ Decision: Evidence being sought is admissible but form of question inadmissible. Catchwords: Evidence - admissibility - opinion evidence - lay opinion exception - opinion necessary to obtain an adequate account or understanding of the witnesses perception of the event. Legislation Cited: Evidence Act 1995 (NSW), s 76, s 78. Texts Cited: Stephen Odgers, Uniform Evidence Law, (10th ed 2012, Lawbook Co). Category: Principal judgment Parties: David Gilbey (Plaintiff) Lyndall Murray (Defendant) Representation: Counsel: A J Stone (Plaintiff) W M Fitzsimmons (Defendant) File Number(s): DC 2010/251365

Judgment 1This is a case about an accident. A motor bike being ridden by David Gilbey collided with a car being driven by Lyndall Murray. David Gilbey is the plaintiff and Lyndall Murray is the defendant. 2A witness has been called by Mr A J Stone of counsel who appears for Mr Gilbey. She is Mrs Sweeney who was a witness to the accident. Mr Stone asked her some questions about the collision. She said that when the collision occurred she saw the motor cycle hit the side of the car in front of her then the person, namely the rider Mr Gilbey, was catapulted out across the bonnet and hit the road and went into the gutter. She said the car in front of her was turning to the right when the collision occurred. It went over to the grass and into a fence. 3Mr W M Fitzsimmons of counsel is appearing for Mrs Murray and is in the process of cross-examining Mrs Sweeney. In cross-examination Mrs Sweeney told Mr Fitzsimmons that the motor bike being ridden by Mr Gilbey impacted with Mrs Murray's car on the side in the vicinity of the front wheel arch. She said that there was a loud bang. She said the car shot across towards the fence where it ended up. She said she saw the back of the car fishtail out a bit. The car did not drive straight into the fence. The back spun out; she said it went first. It all happened in seconds. She added a little later that when the impact occurred, the car being driven by Mrs Murray was in the process of turning right and was travelling very slowly. She agreed that the impact between the car and the bike was very significant and was into the front side of the car. She agreed with Mr Fitzsimmons that when the bike hit the car, the car first immediately changed direction. Rather than heading into the driveway, it headed down the road. 4At that point, Mr Fitzsimmons asked the controversial question. I do not have an exact note of the question but it involved putting to Mrs Sweeney that the car was pushed down the highway following the impact with the bike. Mr Stone objected to that question and made it clear that his objection was to the use of the expression "pushed." He said that was an expression of an opinion by Mrs Sweeney and therefore breached the opinion rule contained in s 76 of the Evidence Act 1995 (NSW). Mr Fitzsimmons relies on an exception to the opinion rule contained in s 78. 5The main arguments over the admissibility of the question were focussed on s 78 but there were some additional arguments put by Mr Stone. Section 78, in effect, provides that the opinion rule does not apply to evidence of an opinion expressed by a person if the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and if evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event. 6There appeared to be little dispute that the answer, which Mr Stone said would be an opinion if given, would be based on what Mrs Sweeney saw and heard about a matter or event. The matter or event in question is clearly the sequence of events leading to the collision and the collision itself. In my view, any opinion which she might express would be based upon what she saw or heard. 7The controversy concerns the second condition of admissibility, namely that the evidence of the opinion would be "necessary" to obtain an "adequate account or understanding" of Mrs Sweeney's "perception of the matter or event." 8I should say at this stage that I am satisfied that an affirmative answer to the question about the car being pushed down the highway following the impact with the bike would, in the circumstances of this case, be the expression of an opinion. I am told that an issue in this case is whether or not the impact of the bike and the car caused the car's movement, or whether the movement of the car might have been the result of some other cause. 9The account given by Mrs Sweeney of her perception of the sequence of events and the collision already involves the evidence to which I have referred, which includes the impact being very significant, the car immediately changing direction, and there being a loud bang associated with the collision. 10It seems to me, given those descriptions, that Mrs Sweeney may well be able to answer the question whether her perception included the car being pushed by the bike. On the other hand she may not be able to answer that question. It is an important issue in these proceedings as I have said. 11I think that, if she were able to answer in the affirmative that the car was pushed by the bike, then it would provide a more adequate account or understanding of the description which she has given so far. In my view it is necessary - in order to obtain an adequate account or understanding of the perception which Mrs Sweeney has given so far - to know whether she would be of the opinion that what she perceived involved the car being pushed by the bike. 12Having said that, I would not allow the question asked in the present form, insofar as my note reflects the form of the question. I would allow a question, subject to other objections, by which Mrs Sweeney was asked whether she can say anything about whether or not the result of the impact between the bike and the car she would describe as causing the bike to push the car down the highway. She may answer no in which case it would seem that no opinion is available. If she answers yes, then it would seem that the account and our understanding of her account, which has been given so far, would be enhanced by that answer. 13The extent to which her account is enhanced and our understanding assisted, would depend in turn, in my opinion, on the articulated basis which she gave to support her opinion. That, I would regard as a matter of weight. An opinion supported by an articulated basis including her observations would be in my view of more weight than simply the opinion left alone, but I will leave that for counsel to develop. 14One of the other objections Mr Stone had was that the question was unfairly prejudicial to his client because he would not be able to cross-examine Mrs Sweeney about her answer. I do not accept that submission because if Mrs Sweeney provides an articulated basis for her answer, then that can be the subject of cross-examination. If she does not, then the weight of the answer will be reduced and would not result, in my opinion, in any unfair prejudice. 15Mr Stone also argued that the cross-examination may cause or result in an undue waste of time because he may need to deal with it at length. I do not accept that argument because it seems to me that this is an important issue. 16Returning to s 78 of the Evidence Act, one of Mr Stone's principal arguments is that expression of opinion in this case would not be something necessary to obtain an adequate account or understanding of Mrs Sweeney's perception, but would be an impermissible drawing of an inference by Mrs Sweeney as to the cause of the movement of the car. There is some force in that argument and the authorities which are referred to in Odger's Uniform Evidence Law sometimes draw that distinction. As Mr Stone put it, she is able to give evidence about what happened or how things occurred but she is not permitted to give evidence about why. 17The reason that I do not accept that argument is that it seems to me that an opinion about whether or not the car was pushed is something which is closer to the perception of events as they occurred, rather than an impermissible inference. 18In this case I am of the view that the evidence being sought is admissible but the question in its present form is inadmissible and I reject it.