Gilbey v Murray (No 3) [2011] NSWDC 263

District Court New South Wales

Medium Neutral Citation: Gilbey v Murray (No 3) [2011] NSWDC 263 Decision date: 01 September 2011 Before: Cogswell SC DCJ Decision: Witness not qualified to give opinion evidence. Catchwords: Evidence - admissibility - opinion evidence - whether police officer qualified to give opinion about nature of impact between motor bike and car - insufficient specialist knowledge based on experience - not qualified to give opinion evidence. Legislation Cited: Evidence Act 1995 (NSW), s 79. Cases Cited: Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 123. 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 1I am asked to rule on whether a witness is qualified to give opinion evidence in accordance with s 79 of the Evidence Act 1995 (NSW). 2The circumstances are these. In this case concerning an accident between a car and a motor bike, Mr W M Fitzsimmons of counsel called as a witness a police officer who attended the scene. Mr A J Stone of counsel was cross-examining the police officer and asked the police officer for his opinion about the nature of the impact between the bike and the car, given his examination of the scene. 3Mr Fitzsimmons objected to that question on a number of bases. The basis upon which I am presently ruling is that the witness was not qualified to give opinion evidence. 4It was agreed that the best course would be for the witness to be asked some questions on the voir dire and Mr Stone undertook that course. He established that the police officer has been in the Highway Patrol for some 19 years of his 24 years in the police force and has attended some thousands of car accidents, some of them involving motor bikes. He is used to recording details; sometimes he is responsible for recording the details and entering them on the police computer system which demands a good amount of information from police officers using that computer. 5The witness has given evidence in both civil and criminal proceedings and has undertaken measurements and recordings at the scenes of accidents. He is occasionally required to determine the point of impact and sometimes he measures the scene using equipment and sometimes he paces it out. 6He has not attended any courses regarding accident scenes and acknowledges that there is a special division of the police force containing officers who have undertaken courses or study to do with investigation of accidents. 7He has been asked to reconstruct accidents in the past and thinks that the number of accidents involving motor bikes he has attended is about 10% of the total. He has been required to measure the movements in such accidents involving motor bikes to determine the point of impact and he has done that by looking at the damage to vehicles and the point of impact. 8In re-examining him, Mr Fitzsimmons asked him questions about the kinds of courses and study which police who are part of a specialist accident investigating squad undertake. They include topics such as scene analysis, evidence collection and examination, damage, markings on roadways and other places, examination of cars and those police officers are sometimes required to engage other experts such as engineers. 9He has seen evidence produced by such police officers and acknowledges that in examining roadways police in that squad have to attend to such matters as areas on the side of the road, the surface of the road, debris and damage and instruments are used and photographs and plans developed. Reports he has seen from such police have involved disciplines such as physics and calculations such as coefficiences. He acknowledges that he has no expertise or knowledge in such areas including vehicle examination or not, to any great extent, examining vehicles for damage. 10He acknowledged that the extent of his experience is attending scenes of crashes and examining damaged cars. He acknowledged that his job, in most of these cases, was to determine what might have happened but not with the same detailed analysis which is undertaken by the police who are part of the specialised squad. 11Mr Stone based his application to admit the evidence squarely on the witness's experience so far as s 79(1) is concerned. He did not rely upon any training or study undertaken by the witness. 12Mr Stone argued that the police officer has been attending scenes for very many years and on many occasions and attends those scenes understanding that he could well be required to give evidence. He has, in fact, given evidence on many occasions. He acknowledges that he is not the best expert and is not as well qualified as those who are members of the specialised squad. 13I am of the opinion that the witness does not have specialised knowledge based upon experience in order to express the opinion which he has been asked in this case. 14One of the issues in the case, which is made clear in MFI 3, is the point of impact on the respective vehicles involved in the collision. As MFI 3 helpfully poses the question, "Did the plaintiff T bone the front driver's side guard or did the defendant clip the back of the plaintiff's bike?" 15It is acknowledged by both counsel that there is an area of expertise concerning inspection of accident scenes, reporting on them, analysing accidents and reconstructing accidents which certain police officers are qualified by study and training to undertake. 16In this case one of the important issues which has been highlighted by MFI 3 is the point of impact of the cars. Another issue is the speed at which the plaintiff was travelling. It seems to me to be clear that those issues in the case would require the expression of opinions from persons who are qualified with knowledge of the investigation of accidents. That knowledge can be, as s 79 envisages, based upon training, study or experience. 17In order for a court to rely upon evidence based not upon training or study but on experience, it is important, as Einstein J said in Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 123 at [25], that the witness be "fitted in the matter about which he is allowed to give his supposed knowledge." His Honour went on to observe that an "important parameter of an exercise in a particular case may be whether the witness is shown to have by training study or experience, sufficient specialised knowledge to be in a position to be aware of the trustworthy authorities and proper sources of information." 18This witness has frankly acknowledged the limitations of his own experience. He has also acknowledged the breadth of the study and training required of specialised accident investigators. 19The issues involved in the kinds of topics on which Mr Stone wishes to lead evidence - or to seek this witness's opinion about - are issues which involve the kinds of specialised topics which the witness has referred to. 20I am not satisfied that his experience is such that he is properly fitted to give evidence about a topic which is clearly the acknowledged subject of training and study by other police officers. I am not satisfied that he has sufficient specialised knowledge to be aware of the important issues which those other officers would address in giving the opinions which they would, based upon their study and experience. 21For those reasons, in my opinion, the witness is not qualified to give opinion evidence to answer the question which Mr Stone has asked him.