Welsh v Carnival PLC trading as Carnival Australia (No 3)

[2016] NSWSC 1282

Supreme Court

New South Wales

Medium Neutral Citation:	Welsh v Carnival PLC trading as Carnival Australia (No 3) [2016] NSWSC 1282
Hearing dates:	13 September 2016
Date of orders:	13 September 2016
Decision date:	13 September 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [7]
Catchwords:	EVIDENCE – Opinion – Lay opinion – Whether admissible to obtain adequate account of a witness’ perception or understanding of an event
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36
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. In the course of the cross‑examination of the plaintiff's son, questions have been put to him regarding the plaintiff's financial investment in a development known as “Thornhill Park” which has already been the subject of extensive evidence.  In general terms, the witness has agreed with the proposition that the plaintiff's financial investment in Thornhill Park is a substantial one. 

2. In his evidentiary statement, and in other oral evidence, the witness has given evidence of (inter alia) the plaintiff's outbursts of anger.  It will, I anticipate, be part of the plaintiff's case that such outbursts of anger have arisen as a cause of the injury sustained in the incident which is the subject of these proceedings.

3. In the course of the cross‑examination (the witness having generally agreed with the proposition that the plaintiff's financial commitment to Thornhill Park was a substantial one) he was asked a question, the effect of which was to invite him to express an opinion that the plaintiff's outbursts of anger were caused not by any factor stemming from the incident which is the subject of the proceedings, but from the fact that he (the plaintiff) has made the financial commitment to which I earlier referred. Objection was taken to that question, essentially on the basis that it sought to lead an opinion from this witness as to the cause of the plaintiff's anger. It was put on behalf of the defendant that the question was a proper one and that the answer was admissible on the basis of it being a lay opinion. In this respect reliance was placed on s. 78 of the Evidence Act 1995 (NSW) (“the Act”) which is in the following terms:

78 Exception: lay opinions

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.

4. In my view the real question in the present case stems from the provisions of s. 78(b), namely whether the "evidence of the opinion" which is sought to be elicited is necessary to obtain an adequate account or understanding of the witness' perception of the relevant matter or event.

5. The underlying purpose of s. 78(b) is to address a category of case which emerged at common law where the primary facts upon which an opinion was based gave rise to difficulties where those facts were required to be separately narrated: Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 at [48]. The import of the question which has been asked is one which essentially invites the witness to express an opinion as to the cause of the plaintiff's anger. In the course of his evidence, the witness has been quite specific in recalling instances of outbursts of anger on the part of the plaintiff. In those circumstances, the opinion which is sought to be elicited from him is not necessary for the purposes of obtaining an adequate understanding of his perception of the relevant matter or event. The question, in my view, goes well beyond anything which is necessary for the purposes of obtaining an adequate account or understanding of such matters. It follows that the question falls outside the parameters of s. 78, and in particular s. 78(b), and ought not be permitted.

6. That of course does not prevent the defendant from submitting, at the conclusion of the evidence, that I should draw an inference from all of the circumstances that any outbursts of anger on the part of the plaintiff, have arisen due to the stresses associated with his financial commitment to the Thornhill Park development, rather than anything to do with any injury sustained in the accident.

7. However for the reasons that I have articulated, the question should be rejected.

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Decision last updated: 27 September 2016