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

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

An affirmative answer that the car was pushed by the bike would be opinion evidence, but it would be based on what Mrs Sweeney saw or heard and was necessary to obtain an adequate account or understanding of her perception of the collision. The opinion was closer to perception of events as they occurred than to an impermissible inference about cause. Accordingly, the evidence sought was admissible under s 78, but the particular question as asked was inadmissible in form and was rejected.

Jurisdiction
Australia
Judgment Date
31 August 2011
Procedural Posture
Civil Proceedings Arising From a Motor Bike and Car Collision / Evidentiary Ruling During Cross Examination
Outcome
Evidence being sought is admissible but the question in its present form is inadmissible and rejected.
Legal Topics
['admissibility' 'opinion Evidence' 'lay Opinion Exception' 'cross Examination' 'witness Perception']
['evidence'] ['admissibility' 'opinion Evidence' 'lay Opinion Exception' 'cross Examination' 'witness Perception']

Case Brief

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Procedural Posture

Civil Proceedings Arising From a Motor Bike and Car Collision / Evidentiary Ruling During Cross Examination

Legal Issues

  1. 1 ['Whether evidence from Mrs Sweeney that the car was pushed down the highway following impact with the bike would be inadmissible opinion evidence under s 76 of the Evidence Act 1995 (NSW).' "Whether the lay opinion exception in s 78 of the Evidence Act 1995 (NSW) applied because the opinion was based on Mrs Sweeney's perceptions and was necessary to obtain an adequate account or understanding of those perceptions." 'Whether the form of the question asked in cross-examination was admissible.']

Ratio Decidendi

An affirmative answer that the car was pushed by the bike would be opinion evidence, but it would be based on what Mrs Sweeney saw or heard and was necessary to obtain an adequate account or understanding of her perception of the collision. The opinion was closer to perception of events as they occurred than to an impermissible inference about cause. Accordingly, the evidence sought was admissible under s 78, but the particular question as asked was inadmissible in form and was rejected.

Court Disposition

Evidence being sought is admissible but the question in its present form is inadmissible and rejected.

Orders

  • ['The question in its present form is rejected.']