Kasupene v Ajax Foundry Pty Limited

The appeal concerned a workplace accident where the appellant, Mr. Kasupene, suffered injury when a metal tray fell and struck his foot. The respondent was Ajax Foundry Pty Limited, Mr. Kasupene's employer. The appeal was heard by the Court of Appeal of New South Wales.

The primary legal issues before the court were whether the trial judge erred in finding that the respondent was not negligent, and whether the doctrine of *res ipsa loquitur* applied to establish negligence. The court also considered the implications of a witness not being called by the respondent and the effect of the appellant's decision not to allege a specific mechanical defect as the cause of the accident.

The Court of Appeal affirmed the trial judge's finding that the appellant had not discharged the onus of proving negligence. The court reasoned that while the accident was unfortunate, it was not established that it occurred due to the respondent's breach of duty. The possibility that the accident occurred without negligence was not excluded. The court noted that the appellant's failure to allege a mechanical defect meant the respondent was not required to address that specific possibility. The court also found that the inference available under *Jones v Dunkel* (where a party fails to call a relevant witness) did not assist the appellant in this instance.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.