Date: Thu, 16 Oct 2008 12:22

From: Bill Madden

Subject: Prohibition on Party Testimony

Dear Michael

I suspect no one will wish my biased opinion on the NSW legislation or the NSW legislators ...

But as for your substantive question, even in early decisions such as Chappel v Hart [1998] HCA 55, 195 CLR 232, caution was expressed as to the value of such evidence by a plaintiff. McHugh J at footnote 33, remarked:

Human nature being what is, most plaintiffs will genuinely believe that, if he or she had been given an option that would or might have avoided the injury, the option would have been taken. In determining the reliability of the plaintiff's evidence in jurisdictions where the subjective test operates, therefore, demeanour can play little part in accepting the plaintiff's evidence. It may be a ground for rejecting the plaintiff's evidence. But given that most plaintiffs will genuinely believe that they would have taken another option, if presented to them, the reliability of their evidence can only be determined by reference to objective factors, particularly the attitude and conduct of the plaintiff at or about the time when the breach of duty occurred.

In Hoyts Pty Limited v Burns [2003] HCA 61, Kirby J delivered a separate judgment which expressly considered the evidence given by the plaintiff as to what she would have done if a warning sign had been displayed in a cinema where she suffered her injury, describing the evidence as so hypothetical, self-serving and speculative as to deserve little (if any) weight, at least in most circumstances. At [54]: 

… trial counsel for the Appellant protested that the ‘evidence’ about what would have been done if a sign had been displayed was a matter of ‘speculation’. So indeed it was. Whether or not, strictly, such evidence is admissible, it is commonly received in Australian courts. Presumably, this practice emerged once it was established that the relevant test of causation applicable in Australia was a subjective one. Nevertheless, the evidence of what a Claimant would have done if a non-existent warning had been given by a hypothetical sign is so hypothetical, self-serving and speculative as to deserve little (if any) weight, at least in most circumstances. 

Kirby J went on at [55] to foreshadow how a court might proceed, adopting not dissimilar language to that of the Review Report regarding a decision based on the circumstances of the case:

The evaluation of what the Respondent would have done if a sign of the kind devised by the Court of Appeal had been displayed is truly a matter of hypothesis based upon an evaluation of circumstances that did not in fact occur rather than an assessment of whether the Respondent was telling the truth about her postulated belief.

This seems to be the approach later taken by Hoeben J in Richards (by her tutor Ennis) v Rahilly [2005] NSWSC 352 when he said (at [256]–[257]):

The evidence of Mr Richards was that had the treatment options been explained to him, he would have chosen Vigabatrin. The evidence of Mr Richards to which I have referred is of little value. He understood how important that answer was to Rhiannon’s case. Although his evidence on this question may well have been truthful, it suffers from the problem identified by McHugh J in Chappel v Hart … and restated in Rosenberg v Percival [2001] HCA 18 … The reliability of such evidence needs to be assessed by reference to other evidence. 

However the evidence there was evidence of someone other than the plaintiff, so perhaps that would still be admissible.

Which brings me to the core point of my answer, as in Elbourne v Gibbs [2006] NSWCA 127, Basten JA drew attention to a helpful analysis by Thomas Addison who identified a number of factors which have been considered relevant to causation for failure to warn in a medical treatment context – for those interested the article is at (2003) 11 Torts Law Journal 165-195 (the Australian one). Tina Cockburn and I wrote a short follow up in Australian Health Law Bulletin Volume 14 Number 10, July 2006.

So it is not as bad a section as might first seem.

Regards
Bill Madden

Jones, Michael wrote:

Dear Neil,

I am curious as to how, in light of the Civil Liability Act 2002 s 5D(3), courts in NSW now determine causation questions in cases of medical negligence involving non-disclosure of risk of treatment, where the whole of the causation question depends on what the plaintiff would have done (accepted/declined treatment) had she been given an adequate warning. Presumably, if she says she would have gone ahead with the treatment this is against her interests, and therefore is admissible - claim fails on causation. If she says she would not have gone ahead with the treatment, the statement is inadmissible, so she cannot establish causation (because there is no evidence of what she would have done) and the claim still fails?

Are most of the legislators in NSW related to doctors?

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