In September 2002, the ‘Review of the Law of Negligence Final Report’ (the Ipp Review) was published. The review was commissioned by Commonwealth, State and Territory Ministers in response to growing concerns regarding the law of negligence. Concerns included:
- The law of negligence was unclear and unpredictable
- It was too easy for a plaintiff to establish liability in personal injury cases
- Damages awarded in personal injuries cases were too high.
In response, the Ipp Review made several recommendations for statutory reform.
In 2003, the Civil Liability Act (WA) was amended in light of these recommendations. One of the added CLA provisions was Section 5C(3)(b):
“Evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.”
This provision greatly increases the difficulty of proving a failure to warn negligence claim.
In proving causation, the plaintiff must prove that the defendant’s negligent act or omission was a necessary condition of the harm suffered. For example, in a case where a doctor negligently failed to warn a patient about a risk that ended up materialising, the plaintiff must prove that if the doctor had warned of this particular risk, the patient would have taken precautions and thus would not have suffered the harm.
Now with the addition of Section 5C(3)(b), the plaintiff’s own testimony about whether they would have taken these proper precautions is inadmissible. Thus, the plaintiff must rely on more objective-based evidence, such as general statistics and analysis of past behaviour.
The Ipp Review explains the reasoning behind their recommendations as follows:
“The enormous difficulty of counteracting hindsight bias in this context undermines the value of such testimony. In practice, the judge’s view of the plaintiff’s credibility is likely to be determinative, regardless of relevant circumstantial evidence. As a result, such decisions tend to be very difficult to challenge successfully on appeal.”
It is true that retrospective testimony includes hindsight bias in many cases and consequently may provide little value to the factfinder. However, total prohibition of this testimony as evidence does more harm than good.
Australia adopts a subjective approach to causation, asking what the plaintiff would have done instead of asking what a reasonable person would have done. If the process is truly subjective, shouldn’t the subject be allowed to have some say in answering this question? When this type of evidence is restricted, the enquiry naturally becomes more objective.
That is not to say objective evidence can be of no value to a factfinder. Using objective evidence is okay and, in many cases, very useful to the enquiry. However, it is not logical to heavily rely on objective evidence to determine a subjective outcome.
Law lecturer and academic Aiden Ricciardo states in his article, ‘First a Failure to Inform, Then a Failure to Listen: Why the plaintiff’s evidence about what they would have done should not be inadmissible in failure to inform cases”, that the legislative reform following the Ipp Review is “ill-founded” and that “there should not be any statutory ban on the plaintiff giving evidence about what they would have done if the defendant had not been at fault”. He argues that, when statistics show an overwhelming amount of people would have acted a certain way, it can become very difficult for the plaintiff to disprove this without giving evidence on the topic themselves.
Further, this statutory prohibition has a large impact on failure to warn claims within the field of medical negligence specifically. A medical negligence claim is not, and should not be, about what someone should have done or what the morally correct decision would have been. The field of medical negligence consistently emphasises the idea of patient agency. See St George’s Healthcare NHS Trust v S, or Brightwater Care Group (Inc) v Rossiter where it was decided that capacity cannot be removed from a person simply because their decision appears morally repugnant or unusual. If the patient has capacity, their choices should be respected, no matter how unusual they may seem.
Following this line of logic, the issues with Section 5C(3)(b) become apparent. When legal authorities acknowledge and accept that people make unusual and improbable choices, how can an enquiry heavily rely on objective-based evidence about probability to answer a subjective question?
Let it also be noted that allowing the plaintiff’s testimony as evidence would not mean this testimony would trump all other evidence. The trial judge would still be required to give appropriate weight to the evidence considering all other circumstances. The plaintiff’s testimony goes to the very heart of the subjective enquiry, and this complete ban restricts the plaintiff’s ability to build their case.
If the Australian legal system wants to truly reflect a subjective enquiry into negligence causation, the statutory prohibitions under Section 5C(3)(b) should be repealed.
