Scalise v Bezzina & Ors

[2003] NSWCA 362

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Rule in Browne v Dunn
3. › Scope and application
4. › Whether sufficient notice of alternative case given by pleadings, opening and evidence in chief
5. › Whether cross-examination of all opposing witnesses required
6. › Whether rule is preclusive rule of evidence or rule of practice
1. Negligence
2. › Personal injuries
3. › Building site accidents
4. › Fall from height
5. › Duty to provide safe working environment
6. › Alternative statutory counts under Construction Safety Regulations
7. › Whether trial judge required to consider all pleaded causes of action
8. › Construction Safety Regulations regs 73, 75
1. Appeal
2. › New trial
3. › Scope of new trial
4. › Whether issues should be limited on retrial
5. › Whether credibility findings should be quarantined

Quick Take

The rule in Browne v Dunn does not require a plaintiff to cross-examine all of the defendant's witnesses on an alternative case where that case has been raised in the pleadings, opening address and evidence in chief. Sufficient notice of the alternative case satisfies the rule. A trial judge must consider all pleaded causes of action, including statutory counts, even where the plaintiff's primary factual case has been rejected. Where a plaintiff pleads breach of statutory duty in the alternative to negligence, the rejection of the plaintiff's evidence on one factual scenario does not relieve the trial judge of the obligation to consider whether the evidence supports the statutory counts on an alternative basis.