FAJKA v AQUILA STEEL COMPANY LIMITED [1990] NSWCA 60

FAJKA v AQUILA STEEL COMPANY LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and HANDLEY JJA 2 July 1990, 13 December 1990

[1990] NSWCA 60

PRACTICE — expert evidence — obligation under Pt36 R13A to serve expert report in advance of trial — on second day of trial counsel for plaintiff in personal injuries action seeks to call expert engineer on the issue of negligence — no written report served or obtained — trial judge (Maxwell J) refuses application — in default of expert evidence enters judgment for defendant and discharges jury — after judgment plaintiff's solicitors receive service by post of expert report provided by defendant — existence of such report not disclosed to trial judge — whether evidence of the existence of such report should be received by Court of Appeal — whether retrial should be ordered — held: (Kirby P and Handley JA; Priestley JA expressing no opinion) (1) The Court should not receive the further evidence in the circumstances. Radnedae v Government Insurance Office of New South Wales (1987) 9 NSWLR 231 applied; Meek v Fleming [1961] 2 QB 366 distinguished; (2) (per Kirby P) Even if such evidence were received and the discretion were exercised afresh, no different conclusion would be reached; (3) Discussion by Kirby P and Handley JA of the purposes and requirements of the Rule obliging service of expert reports before trial.

NEGLIGENCE — employer's alleged negligence — plaintiff's back injured while lifting a bundle of steel rods to a work bench — rods with hooks prone to ensnarement in other rods whilst being lifted — absence of expert evidence of an alternative system of work — evidence of availability of crane — absence of earlier complaints — held: (Kirby P and Priestley JA; Handley JA dissenting) (1) There was evidence which, if believed could justify a conclusion of negligence — accordingly the issue of the employer's liability should have been left to the jury. Hamilton v Nu-Roof (Western Australia) Pty Ltd (1956) 96 CLR 18; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 applied; Malaxechevarria vy Sabemo Pty Ltd (Full Court, NSW) unreported, 24 September 1963) considered; (2) (by majority) New trial ordered.