Date: Thu, 16 Oct 2008 21:06

From: Bill Madden

Subject: Prohibition on Party Testimony

Dear Michael

There has been little direct consideration of the section, such as exists supports a fairly literal interpretation of the section such that the evidence is inadmissible. See for example KT v PLG [2006] NSWSC 919 where Simpson J at [44] excluded that part of the evidence which amounted to a statement by the plaintiff that, had she known the true duration of her pregnancy, she would not have undergone termination of the pregnancy. However the outcome of the matter ultimately did not turn on that issue. See also Livingstone v Mitchell [2007] NSWSC 1447 at [23] – not a medical case, but one where evidence of the plaintiffs was excluded, as to what they would have done if advised of their rights to rescind a contract.

My expectation is that the courts will take a workmanlike approach notwithstanding the exclusion of what might be thought of as key evidence, as was done in a Victorian case State of Victoria v Subramanian [2008] VSC 9 at [57] where the trial judge said:

I do not accept Mr Ruskin’s submission that it was essential that the respondent himself give evidence to the effect that he would have heeded and obeyed an appropriate sign. It is true that evidence of that kind is frequently given in “warning” cases. It is also true that courts in Australia have adopted a “subjective” approach which has regard to what the plaintiff’s own response would have been had the warning been given, as distinct from an “objective” approach which would have regard to a reasonable person in the plaintiff’s position. However, as far as I am aware, it has not been laid down in any case that evidence on this point from the injured person himself or herself is essential, even in cases where that person is physically capable of giving it. Quite the contrary.

I should mention for completeness that as Australia enjoys a federal structure, we are not constrained by consistency in legislative approach. Hence while the section we are discussing exists in NSW, Queensland, Tasmania and Western Australia, there is no equivalent in other Australian States and Territories. Of course, there are subtle differences in wording even between States which do have the section.

The exclusion of the plaintiff's evidence does not apply (except in Western Australia) if the plaintiff makes a concession against his or her interest (for example, yes, I would have ignored that warning).

There is no equivalent exclusion for a defendant's evidence.

Regards
Bill Madden

Jones, Michael wrote:

Dear Bill,

Thank you for the explanation.

There is a world of difference, of course, between scepticism about the credibility of evidence (and testing that evidence against objective criteria) and saying (as the NSW statute appears to say) that such evidence is simply inadmissible. Has the statute been interpreted simply to mean that courts should be cautious when considering self-serving testimony (which (1) is common sense; and (2) ought to apply equally to a defendant's self-serving testimony); or has it been interpreted as preventing the plaintiff from giving evidence as to her hypothetical actions?

Statements to the effect that the plaintiff's evidence is "self-serving", "hypothetical" or "speculative", while possibly a useful reminder to the court to exercise caution, are redundant. How else can a plaintiff establish causation in a failure-to-warn case (unless she has the foresight to write down in advance how she would have responded to the potentially myriad hypothetical scenarios which might occur if someone else were to be negligent in failing to warn about a risk – that would require the foresight, not of a "reasonable man" but of a deity)?  Presumably, when a court holds an occupier to be in breach of duty for failing to warn of a potential hazard it is because the court thinks that a warning could have made a difference – i.e. that the visitor would do something different if given a warning. It rather defeats the point if it then goes on to treat the plaintiff's evidence that a warning would have made a difference to her behaviour as so speculative as to be entirely disregarded.

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