What the plaintiff would have done

Associate Professor Tina Cockburn has kindly highlighted the recent matter of McKenna v Fraser & Anor [2014] QSC 14, in which the plaintiff sought to give evidence as to his future earnings intentions.

The defendant sought to argue that such evidence of the plaintiff concerning the hypothetical of his business and work endeavours in the period between accident and trial and into the future should be excluded by reason of section 11(3)(b) Civil Liability Act 2003 (QLD). That section provides, in a similar fashion to other jurisdictions, that 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.

The court noted at [4] that the provision was directed at causation hindsight evidence. At [8] the court concluded that statements of the nature that “absent injury, my plans in the future were to be” are receivable. Such evidence is not precluded by provisions such as section 11(3)(b) of the  Queensland legislation. 

A similar outcome seems likely in other jurisdictions.