Moukhayber v Camden Timber & Hardware Co Pty Ltd

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Moukhayber v Camden Timber & Hardware Co Pty Ltd [2002]  NSWCA 58

FILE NUMBER(S):
40747/00

HEARING DATE(S):               6 March 2002

JUDGMENT DATE: 06/03/2002

PARTIES:
Mohamed Moukhayber (Appellant)
Camden Timber & Hardware Co Pty Ltd t/as Camden Timber Mitre 10 (Respondent)

JUDGMENT OF:       Beazley JA Heydon JA Santow J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          1714/99

LOWER COURT JUDICIAL OFFICER:     Dent DCJ

COUNSEL:
Mr S W Gibb SC (Appellant)
Mr C R R Hoeben SC (Respondent)

SOLICITORS:
Orr & Company (Appellant)
Tress Cocks & Maddox (Respondent)

CATCHWORDS:
Tort - Negligence - District Court Appeal - Plaintiff alleged defendant's employee wrongly advised plaintiff to remove safety features from angle grinder - Injury resulting from acting upon alleged advice.
Evidence - Jones v Dunkel point - Plaintiff omitting to call all relevant witnesses - Whether trial judge should have inferred that untendered evidence would not have helped defendant's case - ND.

LEGISLATION CITED:
Supreme Court Act 1970 (NSW)

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40747/00
DC 1714/99

BEAZLEY JA
HEYDON JA
SANTOW JA

6 March 2002

MOHAMED MOUKHAYBER v CAMDEN TIMBER & HARDWARE
CO PTY LTD (t/as CAMDEN TIMBER MITRE 10)

Judgment

1. HEYDON JA:  After a hearing over 22 to 26 May, or at least over parts of those days, on Monday 29 May 2000 Dent DCJ QC found a verdict for the defendant in relation to the plaintiff’s claim for damages for personal injuries.  This is an appeal by the plaintiff against that order, seeking a new trial.

2. The background was described thus by the trial judge:

   “The plaintiff’s case is based upon a sale transaction and advice given to him which he alleges occurred at the defendant’s place of business at Narellan shortly before the accident of 15 March 1996.  The evidence discloses that at and significantly prior to the date of the accident the plaintiff was a concreting contractor operating that business in an advertised name suggesting his wife had an interest in it which apparently on the tax returns provided in evidence she did not in fact have, from what appears to be the family home at 20 Morgan Street Miller New South Wales.  The plaintiff held the appropriate licence to trade in his own name since 1995.  By that time he had become a person long skilled in his avocation able to quote for jobs as well as physically perform the tasks of laying concrete and skilfully decorating it by what is known as stencilling.  As at the date of the accident the plaintiff’s tools of trade included a Bosch electrically powered angle grinder.  This portable machine was not produced in evidence but one similar to it was entered in evidence by the defendant after the plaintiff identified it as a similar machine.  The machine was designed to use inter alia cutting discs up to nine inches in diameter and it was fitted with a part…