A statement by a plaintiff about what they would have done absent the defendant's negligence is admissible under s 5D(3) of the Civil Liability Act 2002 (NSW) only to the extent it is against the plaintiff's interest. In solicitor's negligence cases involving guarantees, the correct causation inquiry requires identifying the guarantee the client would have signed (not merely that they would not have signed the actual guarantee), and then asking whether the lender would have accepted that alternative guarantee. Where the client's actual liability is less than the amount they were prepared to guarantee, no loss is established.
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