LK v Parkinson [2009] NSWDC 47

LK v Parkinson [2009] NSWDC 47

The question was disallowed because, given the unclear operation of Civil Liability Act 2002 s 5D(3)(b), it would be an absurdity to allow a question to be asked on the contingency that the answer would be disallowed unless certain conditions applied, and in any event allowing the question would be unfairly prejudicial to the plaintiff under Evidence Act 1995 s 135.

Jurisdiction
Australia
Judgment Date
19 March 2009
Procedural Posture
Civil / Ruling on Objection During Cross Examination
Outcome
Question disallowed
Legal Topics
['civil Liability Act 2002 S 5 D' 'hypothetical Question' 'causation' 'evidence Act 1995 S 135' 'unfair Prejudice']
['practice and Procedure' 'evidence' 'civil Liability'] ['civil Liability Act 2002 S 5 D' 'hypothetical Question' 'causation' 'evidence Act 1995 S 135' 'unfair Prejudice']

Case Brief

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Procedural Posture

Civil / Ruling on Objection During Cross Examination

Legal Issues

  1. 1 ['Whether the defendant could ask the plaintiff a hypothetical question about what she would have chosen if advised of surgical risks with tubal ligation.' "Whether Civil Liability Act 2002 s 5D permitted the question or rendered any answer inadmissible unless against the plaintiff's interest." 'Whether the question should be disallowed because of the danger of unfair prejudice under Evidence Act 1995 s 135.']

Ratio Decidendi

The question was disallowed because, given the unclear operation of Civil Liability Act 2002 s 5D(3)(b), it would be an absurdity to allow a question to be asked on the contingency that the answer would be disallowed unless certain conditions applied, and in any event allowing the question would be unfairly prejudicial to the plaintiff under Evidence Act 1995 s 135.

Court Disposition

Question disallowed

Orders

  • ['The question was disallowed.']