Fascinating stuff ...
Although the mother of Parliaments is far from perfection in some of its forays into legislative reform of common law obligations, all I can say about this particular Antipodean example is that it looks like "tort reform gone completely mad".
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From: Bill Madden
Sent: Thu 16/10/2008 21:06
To: Jones, Michael
Subject: Re: 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.
