In recent times, there has been testing of the boundaries of
Section 5D(3)(b) of the Civil Liability Act 2002 (NSW)
("the Act"), which provides:
"any statements 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
The principal aim of the prohibition on this evidence is to
reduce the inherent hindsight bias it encapsulates and its
questionable probative value.
In the bush fire matter of Warragamba Winery v State of New
South Wales, 15 plaintiffs brought proceedings for alleged breach
of duty and creation of a nuisance by the National Parks Wildlife
Service, NSW Rural Fire Service and Sydney Catchment Authority. The
plaintiffs alleged that the defendants failed to assess adequately
the risk and take subsequent steps to control or contain a bushfire
that began on 24 December 2001, which spread to their properties.
The plaintiffs also alleged that the defendants should have warned
them of an approaching fire so as to allow the plaintiffs time and
opportunity to undertake action to save their businesses and
In an interlocutory application, the Court heard argument in
relation to Section 5D(3)(b) of the Act where one of the 15
plaintiffs, Mr Lynch gave evidence about what he would have done if
he had had proper warning of the bush fire. On Christmas day, Mr
Lynch was having a luncheon not far from his property and had
received telephone calls on that day in relation to the bush fire.
The defendants questioned whether the telephone calls were an
adequate way of assessing any risk to Mr Lynch's properties.
During cross exanimation, it was put to Mr Lynch:
Q. It would have been sensible for you to get back to Warragamba
and see whether your house or your business was threatened,
A. No, my house was fine. 3
On re-examination, it was put to Mr Lynch:
Q. Mr King asked you, 'It would have been sensible for you to
go back to Warragamba and see whether your house or your business
Q. If those phone calls had occurred at 8.30, what would have been
A. I would have stayed at home.
Q. And if those phone calls had been at 11am on Christmas
A. I would have stayed at home. 4
The plaintiff argued that the question on cross examination was
of a hypothetical nature and therefore unfairness resulted if an
alternative hypotheses is not put in re-examination.
The Court found the question put on cross examination was
admissible as it was not hypothetical. The question related to
whether it was sensible to take certain steps, and did not go to
what Mr Lynch would have done. 6
The evidence on re-examination was inadmissible pursuant to
section 5D(3) of the Act. The Court confirmed that in relation to
the plaintiffs own interest, any assertion as to what they would
have done in a hypothetical circumstance is inadmissible.
The Court drew upon the circumstances of this case to reinforce
that the prohibition against what the plaintiff would have done
broadly applies. The decision reinforces the breadth of the
prohibition in Section 5D(3) of the Act. Although a variety of
approaches have been explored to test its application in various
circumstances, courts are generally resisting any temptation to
read down the prohibition, particularly in light of issues relating
to the hindsight bias of such evidence.
For medical negligence cases involving allegations of
'failure to warn' of risks of surgery or other treatment, a
plaintiff cannot rely merely on their own post-event assertions
about what they would have done if given certain information.
Attempts to argue that out-of-court statements are not caught by
the prohibition have been rejected. 7 Instead, such a
case will normally focus on a plaintiff's state of mind and
background at the time of making a decision on treatment.
Statistical evidence about what persons in similar situations would
have done may also be relevant. Evidence from persons other than
the plaintiff on what they would have done may not be excluded, but
will likely be of questionable weight.
The prohibition in Section 5D(3) of the Act is a continuing
caution to solicitors for all parties in medical negligence claims
involving 'failure to warn' allegations about what they
need to focus on.
1Some other states have similar provisions:
Section 11(3)(b) Civil Liability Act 2003 (Qld); Section
5C(3)(b) Civil Liability Act 2002 (WA); Section 13(3)(b)
Civil Liability Act 2002 (Tas), but not Victoria, South
Australia, the ACT or the Northern Territory 2Warragamba Winery Pty Ltd v State of NSW 
NSWSC 1492 at 11 and 13. 3Warragamba Winery Pty Ltd v State of NSW 
NSWSC 1492 at 13. 4Warragamba Winery Pty Ltd v State of NSW 
NSWSC 1492 at 14. 5Warragamba Winery Pty Ltd v State of NSW 
NSWSC 1492 at 8, 19, 20. 6Warragamba Winery Pty Ltd v State of NSW 
NSWSC 1492 at 13. 7KT v PLG  NSWSC 919 at  to
This article was first published in Australian
Health Law Bulletin Vol 20 No 2 2012.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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