Kavanagh v Ioannou [2002] NSWCA 2 (30 January 2002)

Last Updated: 22 February 2002

NEW SOUTH WALES COURT OF APPEAL

CITATION: Kavanagh v Ioannou [2002] NSWCA 2

FILE NUMBER(S):

40503/01

HEARING DATE(S): 30 January 2002

JUDGMENT DATE: 30/01/2002

PARTIES:

Michael Kavanagh

v

Ioannou Investments Pty Limited (t/as The Shell Service Station Bundeena)

JUDGMENT OF: Handley JA Giles JA Ipp AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 9648/99

LOWER COURT JUDICIAL OFFICER: Balla DCJ

COUNSEL:

K P Rewell SC/P J Frame (Appellant)

H G Shore (Respondent)

SOLICITORS:

White Barnes (Appellant)

Hunt & Hunt (Respondent)

CATCHWORDS:

NEGLIGENCE - duty of care - breach of duty - likelihood of damages - Burnie Port Authority v General Jones Pty Ltd

LEGISLATION CITED:

N/a

DECISION:

Leave to amend notice of appeal as sought; appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

40503/01

DC 9648/99

HANDLEY JA

GILES JA

IPP AJA

30 January 2002

MICHAEL KAVANAGH v IOANNOU INVESTMENTS PTY LIMITED

(T/as Shell Service Station Bundeena)

NEGLIGENCE - duty of care - breach of duty - likelihood of damages - Burnie Port Authority v General Jones Pty Ltd

The appellant was sprayed with petrol when he activated the petrol pump on a bowser at the respondent's service station. The hose had been slit by vandals during the night when the station was closed. The appellant, with a history of chest and breathing problems, claimed to have suffered further injury as a result of breathing in petrol fumes. The trial Judge found there was a foreseeable risk of injury to the plaintiff and that a duty was owed, but that no breach of that duty had occurred.

The appellant submitted that the duty of care owed by the service station operator to its customers required a daily inspection of all petrol bowser hoses before the premises were opened for business. He relied on Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520 which emphasised the high duty of care owed by persons whose business involves the storage and use of dangerous substances. There was no evidence that an incident of this nature had occurred previously at this or any other service station, although some four years before the hoses on the respondent's bowsers had been severed.

HELD: dismissing the appeal, that the respondent's duty of care did not require the close daily inspection of the hoses. Prior to this incident the likelihood of such vandalism would have seemed far fetched and fanciful. The immediate cause of the incident was not the result of any action taken by the respondent but that of the criminal activity of one or more strangers.

ORDERS:

(1) Leave to amend notice of appeal as sought;

(2) Appeal dismissed with costs.

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

40503/01

DC 9648/99

HANDLEY JA

GILES JA

IPP AJA

30 January 2002

MICHAEL KAVANAGH v IOANNOU INVESTMENTS PTY LIMITED

T/as SHELL SERVICE STATION BUNDEENA

Judgment

1 HANDLEY JA: This is an appeal by the plaintiff from a judgment of Balla DCJ given on 22 June 2001 in which she entered judgment for the defendant.

2 The proceedings arose out of an incident which occurred on 21 March 1997. The plaintiff drove his car into the driveway of the defendant's service station at Bundeena at 6:10 am and took the usual steps to obtain petrol from one of the bowsers. He was the first customer that morning, the service station having been closed overnight.

3 When the plaintiff activated the pump he was hit with petrol because the hose had been slit. The attendant on duty, a Mr Walton, took the necessary action to terminate the flow of petrol from that bowser and it was cut off within a few seconds.

4 Fortunately the petrol was not ignited, but the plaintiff with a history of chest and breathing problems claimed to have suffered further injury to his chest and lungs as a result of breathing in petrol fumes during this incident.

5 An inspection of the rubber hose revealed that it had been cut through between one third and one half of its circumference with a narrow instrument, possibly a razor blade.

6 The attendant had unlocked the petrol pumps as part of the routine for opening the service station for business and had not noticed any damage to the hoses. After this incident it was observed that each of the petrol hoses had been damaged in the same way and to the same extent as the hose used by the plaintiff.

7 A police officer who attended the scene shortly afterwards said that the damage to the hoses was not detectable without a close inspection. The plaintiff himself did not notice any damage to the hose until the petrol began to flow.

8 The plaintiff sued the operator of the petrol station for negligence alleging that a duty of care was owed to him as a customer of the business and an entrant on its premises, that this duty had been breached, and that he had suffered personal injury from the ingestion of petrol fumes.

9 The petrol station had been under its existing management for some seventeen years at the time of this incident, and there had only been one previous occasion when the hoses had been vandalised. This was some three years before. On that occasion the hoses had been severed during the night while the service station was closed. This damage was readily detectable, and there was no incident of the kind which involved the plaintiff.

10 So far as the evidence goes this was the first occasion where damage of this kind, to the rubber hoses of a petrol bowser, had occurred anywhere in this country. It is of course conceivable that damage of this kind had occurred before, but there was no evidence of it.

11 The Judge found that there was a foreseeable risk of injury to the plaintiff as a result of the activities of vandals and that a duty of care was owed, but she was not satisfied that the defendant's duty of care extended to taking the steps relied upon by the plaintiff to establish a breach of the duty.

12 The petrol pumps, or bowsers and their equipment, including the hoses, were, as the Judge found, inspected weekly as part of the routine operation of the station. This would have been sufficient to detect any deterioration of the rubber through age, weather, or use. It was not suggested otherwise. There was also evidence of other periodical inspections by government departments and the like.

13 As is obvious from the facts of the case, inspections of that nature are not capable of protecting the earliest customers from concealed damage to the rubber hoses carried out by vandals while the station was closed overnight.

14 Accordingly Mr Rewell SC for the appellant repeated his submission made previously to the trial Judge that the operators of the business owed a duty which required staff to carry out a close inspection of the rubber hoses of the bowsers before the premises were thrown open for business at the start of each working day. Nothing less would have prevented the plaintiff being doused with petrol and nothing else would have prevented any other member of the public suffering the same fate if he or she had been the first person arriving for business.

15 Mr Rewell drew our attention to statements in Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520 at 551, 554 in the majority judgment which emphasised the high duty of care owed by persons who bring dangerous substances onto their land, or whose business involves the storage and use of dangerous substances on their premises. In some circumstances such a duty, as the High Court said, may involve a degree of diligence so stringent as to amount practically to a guarantee of safety.

16 This incident was not the result of any action taken by the service station proprietor or its staff. The immediate cause of the incident was the criminal activity of one or more strangers carried out when the premises were not open for business. Petrol can only flow down the hose after the bowser has been unlocked, a member of the public has depressed the lever in the fixture at the end of the hose, and the attendant on duty has depressed the appropriate button on the console.

17 There has been no evidence, as I have said, of any earlier incident of this kind, either at these premises or anywhere else. While such evidence may be difficult to obtain, the Court has to deal with the evidence as it stands.

18 The appellant can only succeed if he is able to establish that the duty of care owed by the operator of this service station to members of the public, including himself, was such as to require a daily inspection of all the rubber hoses of these bowsers before the premises were open for business. I have not been persuaded that the likelihood of damage to the hoses of these petrol bowsers by a vandal who took care to ensure that the damage would not be detectible without a close inspection until the petrol pump was activated, was sufficiently likely, or realistic, to require the close daily inspection of the kind contended for.

19 In other words, I have not been persuaded that the trial Judge was in error in her conclusion that the defendant's duty of care as occupier did not extend to taking the steps asserted by the plaintiff.

20 In the absence of any prior history of vandalism of this kind, the likelihood of such vandalism would have seemed to a normal operator to be far fetched and fanciful.

21 Accordingly I would propose that the appeal should be dismissed, with costs.

22 GILES JA: I agree.

23 IPP AJA: I agree.

24 HANDLEY JA: The orders of the Court are leave to amend the notice of appeal as sought, appeal dismissed with costs.

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LAST UPDATED: 22/02/2002