Date: Wed, 15 Oct 2008 05:59

From: Neil Foster

Subject: Prohibition on Party Testimony

Dear Colleagues

Every now and then you come across something which makes you wonder whether your legal education has really been good enough. Kenneth S. Abraham from the University of Virginia has not long released a very interesting paper, "The Common Law Prohibition on Party Testimony and the Development of Tort Liability". He reveals something I had never heard before, that prior to the 1840's around most of the common law world, a party could not give testimony in their own civil action (neither plaintiff nor defendant). He then starts to explore whether this hitherto not very widely known truth may involve re-interpreting the development of tort law. The paper doesn't go all that far in this direction (the final section on whether or not this may explain some apparently odd pleading decisions in older trespass claims is probably the most "meaty"), but I found it a fascinating question.

Interesting how the pendulum swings. In NSW the Civil Liability Act 2002 s 5D(3) now provides:

(3) 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:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) 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.

So once again there is now a bar on the plaintiff's evidence, though only on this limited point.

Regards
Neil F

Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

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