Where a trial judge contemplates determining a case on a basis different from that on which the parties conducted the trial, the judge must inform the parties and give them an opportunity to address the changed issues; failure to do so will ordinarily constitute a denial of procedural fairness without the need for the aggrieved party to lead evidence of prejudice. The onus on a defendant alleging a plaintiff's pre-existing condition contributed to injury (per Watts v Rake and Purkess v Crittenden) is qualified by Malec v JC Hutton Pty Ltd: where hypothetical past situations or future contingencies are involved, the court must evaluate possibilities rather than require proof on the balance of probabilities, meaning a pre-existing condition with possible (not probable) ongoing harmful consequences cannot be disregarded. An appellate court may direct a differently constituted tribunal on rehearing where a complicated fact-finding process has miscarried through a combination of factors, particularly where the judgment turned on credibility-based findings.
The full text is available to signed-in members, including the 206 later cases that cite this judgment.
47 of the 206 citing cases carry a classified treatment. How each court treated it is available to signed-in members.