Date: Thu, 16 Oct 2008 11:24

From: Michael Jones

Subject: Prohibition on Party Testimony

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?

Michael

--------------------------------------
Michael A. Jones
Professor of Common Law
Liverpool Law School
University of Liverpool
Liverpool  
L69 3BX
 
Phone: (0)151 794 2821
Fax: (0)151 794 2829
--------------------------------------

--------------------------------------------------------------
From: Neil Foster   
Sent: Wed 15/10/2008 05:59
Subject: ODG: 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.

<<<< Previous Message  ~  Index  ~  Next Message >>>>>