Ordukaya v Hicks [2000] NSWCA 180

Facts: The plaintiff (Pl) brought a claim against the defendant (D) when Pl tripped on a loose paving step to D’s house. 92 yea old D (i.e. unavailable) provides evidence by affidavit (instead of in court). Pl argued it should be excluded under s 135 Evidence Act because it was impossible to test, and therefore unfairly prejudicial. The TJ excluded it, and the decision was appealed.

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