Australia: Can a statement of what the plaintiff would have done if the defendant had not been negligent be admissible in re-examination?

In brief - Plaintiff's retrospective or self-serving statements not to be allowed into evidence

In Warragamba Winery Pty Ltd v State of NSW [2011] NSWSC 1492, the NSW Supreme Court recently considered the question of whether a statement of what the plaintiff would have done if the defendant had not been negligent should be admissible in re-examination.

Section 5D(3) of the Civil Liability Act

Walmsley AJ answered the question in the negative, confirming a broad application of section 5D(3) of the Civil Liability Act 2002.

Section 5D(3) provides that:

If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

  • the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
  • any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.1

Based on the current authorities, any attempt to read down the provisions of s5D(3) in order to allow into evidence the plaintiff's retrospective or self-serving statements made either in court or out of court (except for those against the maker's interest) will fail.

... the test of causation is ultimately one to be determined on all the relevant material and not merely upon the assertion of the plaintiff as to what he or she would have done in hypothetical circumstances.2

Warragamba Winery Pty Ltd v State of NSW

In this case, fifteen plaintiffs from Warragamba, Silverdale and Mulgoa who lost their houses or business premises in a 2001 bushfire which allegedly started in the lower Blue Mountains, brought a claim in negligence against the NSW State Government (first defendant) and the Sydney Catchment Authority (second defendant).

They alleged that the first defendant by two of its statutory services (the National Parks and Wildlife Service and the NSW Rural Fire Service) and the second defendant breached their duty of care by failing to assess adequately the risk posed by the fire and to deploy sufficient resources to protect the plaintiffs' properties.

During cross-examination, one of the plaintiffs was questioned about his activities on the day of the fire. His place of business had been destroyed in that fire. He gave evidence that he had been attending Christmas lunch with a relative at a place not far away either from his house or business premises.

At the time he monitored the situation by telephone calls. A question was put to him whether it would have been sensible for him to get back to his house or place of business to see if they have been threatened. He replied "No, my house was fine".

Plaintiff's counsel argues that hypothetical question needs to be addressed

On re-examination, the plaintiff's counsel, Mr Nock SC tried to introduce into evidence the plaintiff's statement that if he had been properly warned he would have taken steps to protect his property.

Mr Nock argued, without supporting authority, that a hypothetical question posed by the defendants' counsel, Mr King SC, had to be addressed by the plaintiff in order to remove any ambiguity and uncertainty created by that question. Otherwise this would amount to unfairness and prejudice to the plaintiff.

Court excludes direct evidence of what the plaintiff would have done

His Honour did not accept Mr Nock's argument, stating it to be clearly inconsistent with a broad interpretation of s5D(3). His Honour referred to the case of KT v PLG [2006] NSWSC 919 in which it was said that:

....subs 3(b) was intended to, and does, exclude direct evidence of what the plaintiff would have done if the first defendant had not failed in his duty to her.

Interestingly, his Honour did not find that Mr King's question was an inadmissible hypothetical. According to his Honour, the question was simply asking the plaintiff whether it would have been sensible to do something rather than what he would have done but for the defendants' negligence.

Statement of what the plaintiff would have done is inadmissible

This case deals with the application of s5D(3), which clearly renders inadmissible any statement by the plaintiff (except for those against his or her interest) as to what the plaintiff would have done absent the defendant's negligence, whether it is made out of court or during examination in chief or re-examination in court.

Section 5D(3) obviously does not deal with questions posed to the plaintiff in cross-examination. However, it can be implied from this case that any hypothetical question in cross-examination may be rejected as unfairly prejudicial under section 135 of the Evidence Act 1995 as the plaintiff will be prohibited by s5D(3) from putting forward an alternative hypothesis in re-examination.

It is worth noting that s5D(3) may not apply to statements on factual causation from an injured person who is not a party to the proceedings. In Frisbo Holdings v Austin Australia [2010] NSWSC 155, the plaintiff sought contribution from the defendant towards the damages it had paid in separate proceedings to the person who suffered harm. Interestingly, the court permitted reliance on the retrospective evidence from the injured person.

However, even if not caught by s5D(3), such a statement may be considered to be "so hypothetical, self-serving and speculative as to deserve little (if any) weight, at least in most circumstances"3.


1Similar provisions have been enacted in other Australia jurisdictions; see s.11(3) of the Civil Liability Act 2003 (Qld), s13(3) of the Civil Liability Act 2002 (Tas) and s5C of the Civil Liability Act 2002 (WA).
2 Chamberlain v Ormsby, trading as Ormsby Flower [2005] NSWCA 454 at [137].
3 See Hoyts Pty Limited v Burns [2003] HCA 61, Kirby J at [54], a warning sign case which was decided at first instance prior to enactment of the Civil Liability Act.

For more information on commercial litigation, please see the website of CBP Lawyers or contact Paul Bannon at or Katarzyna Danysz at

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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