Australia: Prohibition on plaintiffs' self-interested statements about hypothetical scenarios reinforced

Last Updated: 27 March 2012
Article by Timothy Bowen and Ellie Gair
Focus: Warragamba Winery Pty Ltd v State of NSW [2011] NSWSC 1492
Services: Insurance
Industry Focus: Insurance

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 interest".1

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 homes.

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. 2

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, wouldn't it?
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 were threatened?
A. Yes.
Q. If those phone calls had occurred at 8.30, what would have been your answer?
A. I would have stayed at home.
Q. And if those phone calls had been at 11am on Christmas morning?
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. 5

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 [2011] NSWSC 1492 at 11 and 13.
3Warragamba Winery Pty Ltd v State of NSW [2011] NSWSC 1492 at 13.
4Warragamba Winery Pty Ltd v State of NSW [2011] NSWSC 1492 at 14.
5Warragamba Winery Pty Ltd v State of NSW [2011] NSWSC 1492 at 8, 19, 20.
6Warragamba Winery Pty Ltd v State of NSW [2011] NSWSC 1492 at 13.
7KT v PLG [2006] NSWSC 919 at [42] to [44]

This article was first published in Australian Health Law Bulletin Vol 20 No 2 2012.

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