Coote v S & P Jackson Pty Ltd [2014] NSWCA 385

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Coote v S & P Jackson Pty Ltd [2014] NSWCA 385 Hearing dates: 3 October 2014 Decision date: 10 November 2014 Before: Macfarlan JA at [1]; Barrett JA at [53]; Leeming JA at [54] Decision: Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - appellant injured when workbox in which he was standing fell to the ground while suspended from crane - whether evidence established cause of accident - whether primary judge erred in favouring hypothesis of one expert over the other - whether accident could have been avoided by exercise of reasonable care - causative negligence not proved

PRACTICE AND PROCEDURE - pleadings - application to amend particulars of negligence on third day of trial by alleging operator error - report prepared by appellant's expert prior to hearing disclaimed causal operator error - whether primary judge erred in rejecting application - whether proposed particulars supported by evidence - appeal dismissed Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Condos v Clycut Pty Ltd [2009] NSWCA 200 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Luxton v Vines [1952] HCA 19; 85 CLR 352 Minogue v Rudd [2013] NSWCA 345 Category: Principal judgment Parties: Matthew Coote (Appellant) S & P Jackson Pty Ltd (Respondent) Representation: Counsel: I D Roberts SC/I Todd (Appellant) K P Rewell SC/O J Dinkha (Respondent) Solicitors: Slater & Gordon Lawyers (Appellant) Curwoods Lawyers (Respondent) File Number(s): CA 2013/345666 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-10-18 00:00:00 Before: Gibson DCJ File Number(s): DC 2011/271642