Warragamba Winery Pty Ltd v State of NSW [2011] NSWSC 1492

Warragamba Winery Pty Ltd v State of NSW [2011] NSWSC 1492

Civil Liability Act 2002 s 5D(3) is broad and there was no warrant to read it down to permit evidence in re-examination of what a plaintiff would have done in hypothetical circumstances after suffering harm. The specific exception for statements against interest emphasised the breadth of the exclusion. The proposed re-examination evidence, although it might otherwise have been admissible, was inadmissible under s 5D(3).

Jurisdiction
Australia
Judgment Date
15 November 2011
Procedural Posture
Interlocutory Applications / Ruling on Objection to Hypothetical Evidence in Re Examination Taken on the Voir Dire
Outcome
The hypothetical evidence was disallowed.
Legal Topics
['admissibility of Hypothetical Evidence' 'factual Causation' 're Examination' 'civil Liability Act 2002 S 5 D(3)' 'evidence Act 1995 S 39' 'bushfire Damage Claims']
['evidence' 'civil Liability' 'negligence'] ['admissibility of Hypothetical Evidence' 'factual Causation' 're Examination' 'civil Liability Act 2002 S 5 D(3)' 'evidence Act 1995 S 39' 'bushfire Damage Claims']

Case Brief

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Procedural Posture

Interlocutory Applications / Ruling on Objection to Hypothetical Evidence in Re Examination Taken on the Voir Dire

Legal Issues

  1. 1 ['Whether Civil Liability Act 2002 s 5D(3) rendered inadmissible evidence in re-examination from a plaintiff about what he would have done if warned of the fire at earlier times.' 'Whether the right to re-examine under Evidence Act 1995 s 39 permitted hypothetical evidence that would otherwise be excluded by Civil Liability Act 2002 s 5D(3).']

Ratio Decidendi

Civil Liability Act 2002 s 5D(3) is broad and there was no warrant to read it down to permit evidence in re-examination of what a plaintiff would have done in hypothetical circumstances after suffering harm. The specific exception for statements against interest emphasised the breadth of the exclusion. The proposed re-examination evidence, although it might otherwise have been admissible, was inadmissible under s 5D(3).

Court Disposition

The hypothetical evidence was disallowed.

Orders

  • ['The evidence on the voir dire identified as the hypothetical evidence is disallowed.']