Andrew Morrison SC has helpfully noted the following decision, which although not a medical claim could have significance for some medical claims if pleaded in a similar way:
In PPK Willoughby Pty Ltd v Baird [2019] NSWSC 705 (Harrison J), the plaintiff sued the defendants, alleging that it suffered harm as a result of the defendant’s negligence but also by reason of the defendant’s misleading and deceptive conduct. The defendant objected to evidence given by a non-party as to whether or not the plaintiff would have acted differently but for the conduct of the defendant. Harrison J held that the exclusion of such evidence under s 5D(3) is limited to the exclusion in cases of negligence and not otherwise. Accordingly, because the action was also for misleading and deceptive conduct, the evidence was held to be admissible.