Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290

New South Wales Court of Appeal

CITATION: Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290

HEARING DATE(S): 4 September 2007

JUDGMENT DATE: 23 October 2007

JUDGMENT OF: Tobias JA at 1; Campbell JA at 2; Handley AJA at 78

DECISION: (1) Appeal allowed.; (2) Set aside the orders made in the District Court on 27 September 2006 concerning this matter.; (3) Remit the matter to the District Court of New South Wales for a new trial on all issues, and for determination of how the costs previously incurred in the proceedings in the District Court should be borne.; (4) Respondent to pay costs of the Appellant of the appeal.; (5) Respondent to have a certificate under the Suitors Fund Act 1951 if qualified.

CATCHWORDS: WORKERS' COMPENSATION – workplace injury – shoulder injury – manufacture of laminate glass – whether overuse of shoulder in course of employment materially contributed to injury – occupational overuse syndrome – where safety problem foreseen by employer - APPEAL AND NEW TRIAL – appeal from District Court to Court of Appeal – appeal by way of rehearing – where no evidence to justify finding of fact made by trial judge – where erroneous finding of fact critical to determination of matter – miscarriage of justice – requirement for new trial - EVIDENCE – witnesses – expert evidence – District Court – expert's report – where Respondent served expert's report on Appellant – where Respondent did not tender expert's report in proceedings – where Appellant sought to tender expert's report – where expert witness not available for cross-examination – where tender of expert's report by Appellant rejected by trial judge – whether failure to accept tender of report involved an error that caused miscarriage of justice – modification of general law of evidence relating to expert's reports by rules of court – preconditions for admissibility of expert's report – "back-serving" of expert's reports – Uniform Civil Procedure Rules 2005, Pt 31 Div 2, rr 31.17, 31.18, 31.19 – District Court Practice Note (Civil) number 1 - PRACTICE AND PROCEDURE – expert's reports – rules of court relating to use of expert's reports - WORDS AND PHRASES – "exceptional circumstances"