| Focus: |
Warragamba Winery Pty Ltd v State of NSW [2011] NSWSC 1492 |
| Services: |
Insurance |
| Industry Focus: |
Insurance |
In recent times, there has been testing of the boundaries of
Section 5D(3)(b) of the Civil Liability Act 2002 (NSW)
("the Act"), which provides:
"any statements 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".1
The principal aim of the prohibition on this evidence is to
reduce the inherent hindsight bias it encapsulates and its
questionable probative value.
In the bush fire matter of Warragamba Winery v State of New
South Wales, 15 plaintiffs brought proceedings for alleged breach
of duty and creation of a nuisance by the National Parks Wildlife
Service, NSW Rural Fire Service and Sydney Catchment Authority. The
plaintiffs alleged that the defendants failed to assess adequately
the risk
