Miljus V CSR Ltd (No. 2) [2010] NSWSC 598

New South Wales Supreme Court

CITATION : Miljus V CSR Ltd (No. 2) [2010] NSWSC 598

HEARING DATE(S) : 2 & 3 June 2010

JUDGMENT DATE : 8 June 2010

JUDGMENT OF : Davies J

DECISION : (1) Upon the Second Defendant's application proceedings are adjourned part heard to a date to be fixed. (2) The costs thrown away by reason of the adjournment are reserved.

CATCHWORDS : EVIDENCE - expert evidence - reports of experts - whether report complies with Expert Witness Code and principles in Makita v Sprowles - assumptions not stated - lack of analysis and reasons - evidence supplemented in the witness box - need for adjournment to enable other party to obtain expert evidence in reply.

CATEGORY : Procedural and other rulings

CASES CITED : Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Miljus V CSR Ltd [2010] NSWSC 569

PARTIES : Damien Miljus (Plaintiff) Watpow Construction Pty Ltd (Second Defendant)

FILE NUMBER(S) : SC 2008/289579

COUNSEL : B Gross QC & C J Callaway (Plaintiff) M Scott & B Bradley (Second Defendant)

SOLICITORS : Schreuder Partners (Plaintiff) Gadens Lawyers (Second Defendant)

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DAVIES J

8 JUNE 2010

2008/289579 MILJUS V CSR LIMITED & ORS (NO. 2)

JUDGMENT

1 The background to this matter is set out in my judgment of 7 June 2010 (Miljus V CSR Ltd [2010] NSWSC 569). 2 The Plaintiff relies on a report of Colin Simpson who is an engineer and in particular an automotive engineer. The report is dated 29 January 2007 and was prepared after an inspection made by Mr Simpson of the site on 18 January 2007. As he noted in the report very significant changes have been made to the access to the property of 8 Rignold Street, Seaforth since the accident. 3 The Second Defendant challenges the admissibility of the report on the basis of what is said in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 particularly at [85]. 4 Mr Simpson identifies the documents provided to him which included a copy of the DVD made by the Plaintiff a short time after the accident and which is now exhibit B in the proceedings. 5 Mr Simpson sets out the history of the accident as he understood it. The only significant part of the history that should be set out is what follows: [1] However, whilst attempting to reverse down one section of the track, which incorporated a bend, the Plaintiff noted that he seemed to lose brakes, the truck then rolling backwards and over towards the left (near side) and over the embankment.