Kasupene v Ajax Foundry Pty Limited

[2007] HCATrans 294

[2007] HCATrans 294

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S430 of 2006

B e t w e e n -

MORGAN KASUPENE

Applicant

and

AJAX FOUNDRY PTY LIMITED

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 14 JUNE 2007, AT 9.43 AM

Copyright in the High Court of Australia

GUMMOW J:   The applicant's foot was injured by a heavy tray which was dropped by a crane being used in a business owned by the respondent.  The District Court of New South Wales (Geraghty DCJ) found that the applicant failed to discharge his burden of proving negligence on the part of the respondent, and that the maxim res ipsa loquitur did not apply.

The New South Wales Court of Appeal (Bryson JA, McClellan CJ at CL and Hoeben J) dismissed an appeal. The applicant argued that Pt 14 r 14(3) of the Uniform Civil Procedure Rules 2005 created a duty on the respondent to have pleaded and proved that mechanical failure had caused the accident. The omission to do so meant that the only other possibility was the negligence of the respondent's employee, the crane driver. The Court of Appeal rejected that argument: it said that the respondent was not positively alleging that mechanical failure had caused the accident, but was merely leaving it to the applicant to exclude all possible causes of the injury not attributable to the respondent's negligence. The Court of Appeal also agreed with the trial judge that the maxim res ipsa loquitur did not apply because the relevant events were outside common knowledge and experience.

The applicant's written case seeks to present the Court of Appeal's reasoning as a revolutionary abandonment of traditional pleading principles.  But even if the defence were defective, that could not justify judgment for the applicant unless a prima facie case of negligence was established.  This did not happen, since the applicant led no evidence about how the tray came to fall, even though the respondent called the relevant supervisor and that witness was available for cross-examination.

The application is dismissed with costs.

Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.

I publish the disposition signed by Justice Heydon and myself.

The Court will adjourn until 10.15 am.

AT 9.45 AM THE MATTER WAS CONCLUDED