LK v Parkinson [2009] NSWDC 47

New South Wales District Court

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

LK (Plaintiff) PARTIES: 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.