Zraika v Walsh (No. 4) [2014] NSWSC 895

Supreme Court New South Wales

Medium Neutral Citation: Zraika v Walsh (No. 4) [2014] NSWSC 895 Hearing dates: 23 - 26 June 2014 Decision date: 26 June 2014 Jurisdiction: Common Law Before: Campbell J Decision: MFI 3 is admitted as exhibit 1D19. Catchwords: EVIDENCE - admissibility - opinion; lay -whether lay opinion regarding positioning of a sign falls into the lay opinion exception s 78 Evidence Act 1995 (NSW) Legislation Cited: Evidence Act 1995 (NSW), ss 76, 78 and 135 Cases Cited: Lithgow City Council v Jackson (2011) 244 CLR 352 Category: Interlocutory applications Parties: Sharif Zraika by his tutor Hamila Zraika (plaintiff); Rebecca Jane Walsh (first defendant); Joseph Bernard Walsh (second defendant); Roads & Maritime Services (third defendant); Bankstown City Council (fourth defendant); Ali Zraika (fifth defendant) Representation: Counsel: D Higgs SC with T Boyd (plaintiff); K P Rewell SC (first and second defendant); M Fordham SC with H Chiu (third defendant); R S Sheldon SC with P M Knowles (fourth defendant); G Smith (fifth defendant) Solicitors: Kheir Lawyers (plaintiff); McInnes Wilson Lawyers (first, second and fifth defendants) Hicksons Lawyers (third defendant); Mills Oakley, Lawyers (fourth defendant) File Number(s): 2011/52630

ex tempore Judgment 1Mr Rewell SC, who appears for the first and second defendants, has tendered that part of MFI 3 of which Senior Constable Moloney was the author, subject to certain paragraphs which have been redacted by being crossed out in red, which he does not read. 2Senior Constable Moloney was one of the police officers who investigated the occurrence of this motor accident on 16 November 2012. She inspected the roadway and entered the premises on the eastern side of Woodville Road, from which the first defendant drove her Holden ute into the intersection immediately before the collision with the fifth defendant's Ford Laser. Senior Constable Moloney observed a left turn only sign within the private property, to the left of the driveway. The position of that sign, which remains in place, is depicted in photographs that have been tendered before me as exhibits 1 and 2. From MFI 3, and for the purpose of ruling, I infer that the then Mrs Walsh told Senior Constable Moloney that she was looking for signs and could not see any. 3Senior Constable Moloney noticed that the sign "is within the fenced off area of the complex, back off the kerb of Woodville Road." She then added the following, I will call it a comment at the moment, which is contentious: In this sense, the driver of vehicle 2 has failed to turn left according to the sign, however it isn't very clearly erected for drivers to see. 4Mr Fordham SC who appears with Mr Chiu for the third defendant, and Mr Sheldon SC who appears with Mr Knowles for the fourth defendant, object to the tender of that concluding clause of the sentence I have quoted, after the word "however". They argue that this material is inadmissible opinion evidence. 5Mr Rewell argues that the opinion, which it clearly is, given that it is in one sense a conclusion drawn from observations made by the police officer, is admissible pursuant to the provisions of s 78 of the Evidence Act 1995 (NSW), which creates an exception to the exclusionary opinion rule in respect of certain lay opinions. The exception is subject to two conditions set out in paragraphs (a) and (b). The section provides: The opinion rule does not apply to evidence of an opinion expressed by a person if: (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event. 6The threshold question, of course, is one of relevance. That is to say, it is necessary to identify the fact in issue which counsel propounding the tender seeks to prove. In this regard, Mr Rewell has identified that as being whether the location of the turn-left-only sign was appropriate to control the direction of travel of vehicles exiting the driveway. I am satisfied that the opinion of the police officer is relevant to that question. 7That opinion is prima facie excluded by the opinion rule established by s 76. I am concerned with whether it comes within the exception created by s 78. 8There is no question that the opinion expressed by Senior Constable Moloney is based upon what she saw about a matter or event, the matter or event in this case being the location of the sign. The real question is whether evidence of her opinion is necessary to obtain an adequate account or understanding of her perception of the location of the sign. 9As Mr Sheldon reminded me in the course of argument, the question of the reach of s 78 has been discussed in recent years by the High Court of Australia in Lithgow City Council v Jackson (2011) 244 CLR 352 and in their judgments, the Justices referred to the familiar common law rule which the section is similar to. That rule depended upon matters which, as it was sometimes put, were within the ken of ordinary folk. However it is, with respect, a mistake to view legislative reform as doing no more than restating common law principles which it replaces. 10It is true, as Mr Fordham has argued, that much of what Senior Constable Moloney saw is easily understandable from the evidence she has in fact given. First, the sign was within the boundary of the private property of the complex and, secondly, as she wrote in the police events document, it was back off the kerb of Woodville Road. However, it seems to me that there was something about the sign, in the Senior Constable's observation, which does fall within that category of evanescence which is part of the purpose of the second condition established by paragraph (b). It seems to me that her statement that "it isn't very clearly erected for drivers to see" is something which is hard for an ordinary lay witness to break down into its component parts and explain in terms of "metes and bounds", if I can put it that way. 11I am also conscious of the fact that the appropriateness of the location of the sign is the subject of expert evidence which I am about to hear this morning and that so far as it is within their expertise, the various traffic management engineers who will give evidence before me have agreed that its location is "appropriate". That of course, in due course, if that opinion stands, may be decisive of the issue. 12However, it seems to me that the impression of lay people is not irrelevant. After all, the purpose of any traffic sign is to communicate information which is required to be observed not by experts in the field but by ordinary people driving their cars. 13I am of the view that the opinion of Senior Constable Moloney falls within the exception created by s 78. 14Mr Fordham has additionally argued that I should exercise my discretion under s 135 of the Evidence Act to exclude the evidence because its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to his client. I think he is concerned that the tribunal of fact, that is I, might improperly use this evidence to irrationally reason to a conclusion that his client is negligent. That is a submission that can be fairly made, I suppose, but generally speaking it is more apt when there is an inscrutable jury verdict to determine the case. Any irrationality on my part will be readily detected and easily cured. 15In the event, I think it inappropriate to exercise my discretion under s 135. MFI 3 is admitted as exhibit 1D19.