LK v Parkinson

[2009] NSWDC 47

CITATION:	LK v Parkinson [2009] NSWDC 47
HEARING DATE(S):	18 - 20 March 2009
EX TEMPORE JUDGMENT DATE:	19 March 2009
JURISDICTION:	Civil
JUDGMENT OF:	Goldring DCJ
DECISION:	Question disallowed
CATCHWORDS:	PRACTICE AND PROCEDURE - Civil Liability Act s 5D - whether hypothetical question allowable - EVIDENCE - danger of unfair prejudice
LEGISLATION CITED:	Civil Liability Act 2002 Evidence Act 1995
PARTIES:	LK (Plaintiff) Brenda Parkinson (First Defendant) Youssef Kaisher (Second Defendant)
FILE NUMBER(S):	165 of 2008
COUNSEL:	A Lidden SC with P Khandhar (Plaintiff) R O'Keefe (First and Second Defendant)
SOLICITORS:	Bryden's Law (Plaintiff) Paul Tsaousidis (First and Second Defendant)

JUDGMENT

1 HIS HONOUR: In the course of cross-examining the plaintiff, Mr O’Keefe, for the defendant, asked her this question, or questions in these general terms, “If you were advised that there were surgical risks with tubal ligation, you would have chosen a Mirena Inter Uterine Device.” He says that that is not an improper question because of the effect of s 5D of the Civil Liability Act. Counsel for the plaintiff objected.

2 Section 5D is a section headed General Principles in a Part dealing with causation. Subsection (3) provides:

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.

3 This section occurs in the context of determining the scope of liability of a person alleged to be negligent, and the general context of the section requires the court to consider whether, in the circumstances of the particular case, including the attitude of the witness or the party, it is reasonable to impose liability on the defendant.

4 Mr Lidden, for the plaintiff, submits that the expression “statement” in s 5D(3)(b) does not include evidence in court, but is confined to statements made out of court. He also submits that the section is unclear and that the asking and answering of a question in the terms put by Mr O’Keefe, creates a danger of unfair prejudice and I should disallow it under s 135 of the Evidence Act. That, I think, is put clearly in terms of para (a) of that section which reads:

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party;

5 I must say that the drafting of this section, as with the drafting of many parts of the Civil Liability Act, is unfortunate, and reveals that inadequate thought was put into the drafting of the section.

6 Mr O’Keefe submits that the intention of the section is that it would permit a person to be asked what might have happened if the negligent person had not been negligent.

7 It strikes me as being extremely strange that the law would permit a question to be asked and then would disallow the admission of the answer to that question unless it is against the interest of the party.

8 I cannot discern, in this provision, what the purpose of the section is. It seems to me, however, to be an absurdity that a question can be asked on the contingency that the answer will be disallowed unless certain conditions apply. In any event, and particularly given what I have already said, I consider that it would be unfairly prejudicial to the plaintiff to allow this question to be put, so I will disallow the question.

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