Scalise v Bezzina

In *Scalise v Bezzina*, the plaintiff, Mr Scalise, brought proceedings against the defendant, Mr Bezzina, alleging negligence after sustaining personal injuries in a fall from an upper floor of a building site. The plaintiff also advanced alternative statutory counts under the Construction Safety Regulations.

The central legal issue before the court was whether the plaintiff had provided sufficient notice of an alternative case, specifically that any fence present at the building site was defective, to allow it to be considered. This arose in the context of the rule in *Browne v Dunn*, which requires a party to give fair notice of their case to the opposing party, typically through cross-examination of witnesses. The plaintiff’s primary case, that no fence existed, had been rejected by the trial judge.

The appellate court determined that the plaintiff had provided sufficient notice of the alternative case regarding a defective fence through their pleadings, opening statement, and evidence in chief. The court held that it was not necessary for the plaintiff to cross-examine all of the defendants' witnesses on this specific point, as fair notice had otherwise been given. Consequently, the trial judge erred in failing to consider this alternative ground of liability.

The appeal was upheld, and a new trial was ordered on all issues.