New South Wales
Court of Appeal
CITATION: Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 HEARING DATE(S): 4 September 2007
JUDGMENT DATE:
23 October 2007JUDGMENT OF: Tobias JA at 1; Campbell JA at 2; Handley AJA at 78 DECISION: (1) Appeal allowed.; (2) Set aside the orders made in the District Court on 27 September 2006 concerning this matter.; (3) Remit the matter to the District Court of New South Wales for a new trial on all issues, and for determination of how the costs previously incurred in the proceedings in the District Court should be borne.; (4) Respondent to pay costs of the Appellant of the appeal.; (5) Respondent to have a certificate under the Suitors Fund Act 1951 if qualified. CATCHWORDS: WORKERS’ COMPENSATION – workplace injury – shoulder injury – manufacture of laminate glass – whether overuse of shoulder in course of employment materially contributed to injury – occupational overuse syndrome – where safety problem foreseen by employer - APPEAL AND NEW TRIAL – appeal from District Court to Court of Appeal – appeal by way of rehearing – where no evidence to justify finding of fact made by trial judge – where erroneous finding of fact critical to determination of matter – miscarriage of justice – requirement for new trial - EVIDENCE – witnesses – expert evidence – District Court – expert’s report – where Respondent served expert’s report on Appellant – where Respondent did not tender expert’s report in proceedings – where Appellant sought to tender expert’s report – where expert witness not available for cross-examination – where tender of expert’s report by Appellant rejected by trial judge – whether failure to accept tender of report involved an error that caused miscarriage of justice – modification of general law of evidence relating to expert’s reports by rules of court – preconditions for admissibility of expert’s report – “back-serving” of expert’s reports – Uniform Civil Procedure Rules 2005, Pt 31 Div 2, rr 31.17, 31.18, 31.19 – District Court Practice Note (Civil) number 1 - PRACTICE AND PROCEDURE – expert’s reports – rules of court relating to use of expert’s reports - WORDS AND PHRASES – “exceptional circumstances” LEGISLATION CITED: Civil Procedure Act 2005
Suitors Fund Act 1951
Uniform Civil Procedure Rules 2005CASES CITED: Awa v Independent News Auckland [1996] 2 NZLR 184
Ho v Professional Services Review Committee No 295 [2007] FCA 388
Nasr v State of New South Wales [2007] NSWCA 101
R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907
R v Kelly (Edward) [2000] 1 QB 198
San v Rumble (No 2) (2007) NSWCA 259
Tory v Megna [2007] NSWCA 13PARTIES: Mourice Yacoub - Appellant
Pilkington (Australia) Limited - RespondentFILE NUMBER(S): CA 40639/06 COUNSEL: S Norton SC; E Welsh - Appellant
J W Dodd - RespondentSOLICITORS: Brydens Law Office, Liverpool - Appellant
Hunt & Hunt, Eastwood - RespondentLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 5363/04 LOWER COURT JUDICIAL OFFICER: Boulton ADCJ
Keep reading for free
Create a free CaseChat account to read Yacoub v Pilkington (Australia) Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2007] NSWCA 290
- Decision Date
CaseChat Overview and Summary
In *Yacoub v Pilkington (Australia) Ltd*, the Court of Appeal of New South Wales considered an appeal by the appellant, Mr Yacoub, against a decision of the District Court. The dispute concerned a claim for workers' compensation for a shoulder injury allegedly sustained by Mr Yacoub during his employment as a manufacturer of laminate glass with Pilkington (Australia) Ltd. The central question was whether the overuse of Mr Yacoub's shoulder in the course of his employment materially contributed to his occupational overuse syndrome.
The Court of Appeal was required to determine two primary legal issues. Firstly, whether the District Court judge made an erroneous finding of fact that was critical to the determination of the matter, thereby causing a miscarriage of justice. Secondly, the Court had to consider whether the trial judge erred in rejecting the appellant's tender of an expert's report, given that the expert witness was unavailable for cross-examination and the report had not been tendered by the respondent. This involved an examination of the Uniform Civil Procedure Rules 2005 and relevant practice notes concerning the admissibility of expert reports.
The Court found that there was no evidence to justify a critical finding of fact made by the trial judge, which led to a miscarriage of justice. Furthermore, the Court determined that the rejection of the appellant's tender of the expert's report, in the circumstances, also constituted an error that caused a miscarriage of justice. The Court applied the principles governing the admissibility of expert reports under the Uniform Civil Procedure Rules, noting that while the rules modify the general law of evidence, certain preconditions must be met for admissibility, and the unavailability of an expert for cross-examination is a significant factor.
Consequently, the Court of Appeal allowed the appeal, set aside the orders of the District Court, and remitted the matter to the District Court for a new trial on all issues. The Court also ordered that the respondent pay the costs of the appeal and directed that the costs incurred in the District Court proceedings be determined at the new trial.
The Court of Appeal was required to determine two primary legal issues. Firstly, whether the District Court judge made an erroneous finding of fact that was critical to the determination of the matter, thereby causing a miscarriage of justice. Secondly, the Court had to consider whether the trial judge erred in rejecting the appellant's tender of an expert's report, given that the expert witness was unavailable for cross-examination and the report had not been tendered by the respondent. This involved an examination of the Uniform Civil Procedure Rules 2005 and relevant practice notes concerning the admissibility of expert reports.
The Court found that there was no evidence to justify a critical finding of fact made by the trial judge, which led to a miscarriage of justice. Furthermore, the Court determined that the rejection of the appellant's tender of the expert's report, in the circumstances, also constituted an error that caused a miscarriage of justice. The Court applied the principles governing the admissibility of expert reports under the Uniform Civil Procedure Rules, noting that while the rules modify the general law of evidence, certain preconditions must be met for admissibility, and the unavailability of an expert for cross-examination is a significant factor.
Consequently, the Court of Appeal allowed the appeal, set aside the orders of the District Court, and remitted the matter to the District Court for a new trial on all issues. The Court also ordered that the respondent pay the costs of the appeal and directed that the costs incurred in the District Court proceedings be determined at the new trial.
Orders
Orders of the court
(1) Appeal allowed.; (2) Set aside the orders made in the District Court on 27 September 2006 concerning this matter.; (3) Remit the matter to the District Court of New South Wales for a new trial on all issues, and for determination of how the costs previously incurred in the proceedings in the District Court should be borne.; (4) Respondent to pay costs of the Appellant of the appeal.; (5) Respondent to have a certificate under the Suitors Fund Act 1951 if qualified. (Campbell JA, with Tobias JA and Handley AJA agreeing)
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.