Supreme Court New South Wales Medium Neutral Citation: Welsh v Carnival PLC trading as Carnival Australia (No 4) [2016] NSWSC 1296 Hearing dates: 13 September 2016 Date of orders: 14 September 2016 Decision date: 14 September 2016 Jurisdiction: Common Law Before: Bellew J Decision: See [28] Catchwords: EVIDENCE – Evidence of plaintiff's son as to observations made of the plaintiff before and after the accident the subject of proceedings – Whether probative value of the evidence was substantially outweighed by the danger of unfair prejudice – Where unfair prejudice said to stem from the fact that the evidence was of a kind already adduced in the plaintiff's case – Where unfair prejudice was said to stem from the fact that "sheer weight" of the number of witnesses giving such evidence would compel the court to make findings favourable to the plaintiff – Where such a submission overlooked the fact that the evidence would be assessed and analysed EVIDENCE – Evidence of plaintiff's son as to observations made of the plaintiff before and after the accident the subject of proceedings – Whether probative value of the evidence was substantially outweighed by the danger that it would be misleading or confusing or result in an undue waste of time – Where the evidence was clear and in short compass – Evidence admitted Cases Cited: Dyldam Developments Pty Ltd v Jones [2008] NSWCA 56 Hughes Aircraft Systems International v Airservices Australia (No 3) (1997) 76 FCR 15 IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14 Koninklijke Phillips Electronics NV v Remington Products Australia Pty Ltd (2000) 100 FCR 90; [2000] fca 876 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 Re GHI (a protected person) [2005] NSWSC 466 Seven Network Limited v News Limited (No 8) (2005) 224 ALR 317; [2005] FCA 1348 Category: Procedural and other rulings Parties: Graham Welsh - Plaintiff Carnival PLC trading as Carnival Australia - Defendant Representation: Counsel: Mr R Royle & Ms F Graham - Plaintiff Mr M McCulloch SC & Ms T Berberian - Defendant Solicitors: Slater and Gordon Lawyers - Plaintiff HWL Ebsworth - Defendant File Number(s): 2012/198495 Publication restriction: Nil Judgment – EX TEMPORE (revised) 1. Contained within exhibit A in these proceedings is a statement of Christopher Welsh dated 8 December 2015 commencing at p 604. The plaintiff seeks to rely on the evidence of Mr Welsh. Senior counsel for the defendant has taken objection to the entirety of the evidence and has submitted that I should reject it pursuant to s. 135 of the Evidence Act 1995 (NSW) ("the Act"). In that regard, the defendant relies on each of paragraphs (a), (b) and (c) in that section. Alternatively, senior counsel for the defendant takes objection to particular parts of the statement. 2. Before going to the provisions of s. 135, it is necessary for me to make some brief reference to the evidence. 3. Mr Welsh is the plaintiff's son. He was living with the plaintiff at the time of the incident which is the subject of these proceedings. He continued to live with the plaintiff up until March 2013, and he continued his relationship with the plaintiff until about January 2015 when (as he described in paragraph 37 of his statement) they had a "massive argument". It appears that since then the plaintiff and Mr Welsh have been estranged. 4. The evidence to be given by Mr Welsh centres upon his observations of the plaintiff before and after the accident. Counsel for the plaintiff will rely on the evidence to establish, amongst other things, the nature and extent of the sequelae said to have been suffered by the plaintiff as a consequence of the incident which is the subject of the proceedings. In that regard, the statement of Mr Welsh makes reference, amongst other things, to the fact that after the incident the plaintiff had a diminished capacity to focus upon, and engage with, issues and people, that he became forgetful and that he became angry. Mr Welsh also makes reference to the fact that in his observation, the plaintiff appeared to have problems with concentration following the accident which were not evident prior to that time, and that he became socially withdrawn. 5. As I have noted, the primary objection raised on behalf of the defendant is based upon s. 135 of the Act which is in the following terms: 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. 1. Section 135 confers a general discretion to exclude evidence on the bases outlined in subparagraphs (a), (b) and (c). The section requires the Court to undertake a balancing exercise, the nature of which was described in Dyldam Developments Pty Ltd v Jones [2008] NSWCA 56 at [78]. 2. In support of his objection to the evidence, senior counsel for the plaintiff firstly addressed the issue of probative value. He submitted that in all of the circumstances I should come to the conclusion that the probative value of the evidence was low. He submitted, in particular, that there was necessarily a close association between the plaintiff and Mr Welsh. He submitted that the effect of that close association was to lessen the probative value of the evidence, to the point where, it was submitted, the evidence was characterised by "latent bias". 3. Senior counsel for the defendant also drew attention to the fact that the observations made by Mr Welsh of the plaintiff following the accident were made outside the workplace. Senior counsel submitted that although such observations may not be entirely irrelevant, they were, given the focus in the plaintiff's case of his performance in the workplace following the accident, of limited significance. 4. Senior counsel for the defendant then addressed each of the subsections in s. 135. In doing so he made it clear that reliance was placed on each of them. 5. As to s. 135(a), senior counsel submitted that calling a multiplicity of witnesses whose evidence went to the same issue ought be avoided. He submitted that such circumstances gave rise to a danger that by "sheer weight of numbers", unfair prejudice could arise. He submitted that there was a danger that the "aggregation" of this type of evidence could unjustifiably support findings favouring the plaintiff, and that in those circumstances the evidence had limited utility. 6. In developing this submission, senior counsel for the defendant drew attention to the court's power to limit the number of expert witnesses who might be called in a case such as this. He effectively submitted that even in the absence of a specific power, the same approach should be taken so as to limit the number of lay witnesses who might be called in relation to a particular issue. 7. In addressing s. 135(b), senior counsel submitted that there was a clear danger that the evidence might be misleading and/or confusing. He submitted that the real issue in these proceedings was whether the plaintiff suffered from some form of psychiatric overlay, and that this was an issue for evidence by medical experts. He submitted that a danger of confusion arose from the fact that the evidence sought to be called from Mr Welsh essentially represented a repetition of evidence given by other witnesses as to the same general subject matter. 8. Finally, in addressing the provisions of s. 135(c), senior counsel submitted that in all of the circumstances there was a danger that the evidence might give rise to an undue waste of time. In this regard, he relied on his earlier submission to the effect that the evidence represented a repetition of evidence of other witnesses, the effect of which would be to unnecessarily prolong the length of the trial. 9. Counsel for the plaintiff submitted that there was simply no rule of practice, and no rule of law, which operated to limit the number of lay witnesses who could be called in proceedings such as this. In this regard, counsel for the plaintiff also pointed to the existence of the court's power to limit the number of experts to be called, and drew some comfort from the fact that there was no corresponding power in respect of lay witnesses. 10. Counsel for the plaintiff submitted that although a number of people had, or would, give evidence in these proceedings as to the pre and post-accident presentation of the plaintiff, such evidence came from a number of different persons, each of whom had observed plaintiff in differing circumstances. In this regard counsel pointed, in particular, to the fact that Mr Welsh was living with the plaintiff in the period leading up to the accident and that he continued to live with him for a significant period thereafter. It was submitted that in those circumstances, Mr Welsh was well placed to give the evidence set out in his statement. 11. Counsel for the plaintiff also submitted that it was important to bear in mind that in determining the probative value of evidence, questions of reliability were not relevant. He emphasised the need, in assessing the probative value of the evidence, to effectively take the evidence at its highest. He submitted that in all of the circumstances the probative value of the evidence of Mr Welsh was high, and that it was not substantially outweighed by any of the factors in paragraphs (a), (b) and (c) of s. 135. 12. The terms of s. 135 require me in the first instance to make an assessment of the probative value of the evidence. The term "probative value" is defined in the dictionary to the Act in the following terms: 'Probative value' of evidence means the extent to which the evidence could rationally affect the assessment of a probability of the existence of a fact in issue." 1. In the present case, the facts in issue include the nature and extent of any injury suffered by the plaintiff, and the nature and extent of any sequelae arising from it. 2. It is, as counsel for the plaintiff pointed out, necessary to bear firmly in mind that in assessing the probative value of the evidence it is not part of my function to consider its reliability or credibility: IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14. Given the facts in issue as I have articulated them, the probative value of the evidence could not, in my view, be said to be low. The evidence sought to be addressed comes from a person who, as I have pointed out, has known the plaintiff for a very long time, who lived with him at the material time, and who lived with him for a considerable period of time after that. 3. The fact that Mr Welsh is the plaintiff's son may well be a matter to take into account ultimately in assessing the reliability of his evidence, and in assessing what weight might be attached to it. However in the circumstances of this case, I am not satisfied that this factor per se operates to lessen the probative value of the evidence. This is particularly so in circumstances where, as I have noted, Mr Welsh has been estranged from the plaintiff since early 2015. Further, although the observations of the plaintiff's performance in the workplace before and after the incident are obviously important in light of his claim for economic loss, that does not lead to a conclusion that observations of the plaintiff in other situations and circumstances are of no significance at all. Whilst it is true that other witnesses have given, and or will give, evidence of their observations of the plaintiff in the workplace, there is nobody who is in precisely the same position as Mr Welsh to give the evidence which is sought to be adduced from him. 4. In order for s. 135 of the Act to be engaged, I must come to the view that the probative value of the evidence is substantially outweighed by the danger that it might fall into one of the three categories set out. It is important to bear in mind that in making that assessment I do not have to reach a conclusion that the probative value of the evidence is substantially outweighed by the fact that it will fall into one of those categories. I need only be satisfied that the probative value is substantially outweighed by a danger that this might be so: Seven Network Limited v News Limited (No 8) (2005) 224 ALR 317; [2005] FCA 1348 at [36]. 5. With those matters in mind, I turn firstly to the question of unfair prejudice. It is only unfair prejudice which will enliven the operation of s. 135(a). The mere fact that evidence is adverse to a party's case does not mean that it is unfairly prejudicial: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91] and [98] per McHugh J. 6. In my view, the fact that the evidence may be of a kind which is similar to evidence adduced from other witnesses does not lead to a conclusion that its probative value is substantially outweighed by the danger of unfair prejudice. True it is that Practice Note SC CL 5 contemplates the Court having power to make an order limiting the number of expert witnesses who might be called in proceedings such as this. However it says nothing about the Court having a similar power to limit the adducing of lay evidence. 7. I am also unable to accept the proposition that the "sheer weight of numbers" gives rise to a danger of unfair prejudice in the manner suggested by senior counsel for the defendant. In my view that proposition overlooks the fact that I will be required to evaluate and assess the evidence, to determine whether it is reliable, to determine whether it should be accepted and, if so, to then determine what weight might be attached to it. The suggestion that sheer weight of numbers leads to an inevitable conclusion that particular evidence will be accepted, without scrutiny, in favour of the plaintiff completely overlooks that analytical process. Moreover, and as with all witnesses who are called in any case, senior counsel for the defendant will have the opportunity to test the evidence by cross‑examination. 8. In all of those circumstances I am not satisfied that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. 9. I turn then to paragraph (b) of s. 135 of the Act, namely whether the probative value is substantially outweighed by the danger that the evidence might be misleading or confusing. The fact that these are proceedings without a jury and before a judge alone does not mean that the provisions of s 135(b) are rendered inapplicable: Hughes Aircraft Systems International v Airservices Australia (No 3) (1997) 76 FCR 15. That said, in Re GHI (a protected person) [2005] NSWSC 466 Campbell J described as "bizarre" a submission to a judge sitting alone that evidence should be rejected on the grounds that it might be misleading or confusing (at [8]). His Honour made the observation that (at least in the circumstances of that case) he preferred, as it were, to trust himself. Leaving aside his Honour's description of the submission which was put, the fact remains that in this case there is nothing misleading or confusing at all about the evidence. Mr Welsh will give evidence of his observations of the plaintiff, both before and after the accident. There is nothing about that evidence which would cause me, as the tribunal of fact, be misled or confused, so as to incorrectly assess the evidence. In all of those circumstances I am not satisfied that the probative value of the evidence is substantially outweighed by the danger that it may be misleading or confusing. 10. I turn then to s. 135(c), which requires a consideration of whether or not the probative value of the evidence is substantially outweighed by the danger that it might result in an undue waste of time. It has been observed that exclusion of evidence under s 135(c) is warranted where there is a necessity to save judicial resources from being directed to a burdensome inquiry, from which there is unlikely to be any substantial countervailing benefit in assisting the resolution of the relevant issues: Koninklijke Phillips Electronics NV v Remington Products Australia Pty Ltd (2000) 100 FCR 90; [2000] FCA 876 at [21]. In my view the present evidence does not fall into that category for the reasons that I have already expressed. The evidence is limited. It is not such as would give rise to a risk of the trial being unduly prolonged. 11. Accordingly, the defendant's objection to the whole of Mr Welsh's statement should be rejected. I will hear senior counsel for the defendant on his objections to specific parts of the statement. ********** 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: 28 September 2016