KHALAF v CON and HELEN KYRIACOU PTY LTD [1996] NSWCA 304

KHALAF v CON and HELEN KYRIACOU PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, SHELLER and COLE JJA

24 June 1996, 24 June 1996

[1996] NSWCA 304

NEGLIGENCE- no question of principle.

Cole JA This appeal seeks to disturb a jury's verdict for the defendant. The only basis argued on appeal was that the verdict of the jury is against the weight of evidence and thus was such that a reasonable jury, properly instructed, could not have reached.

The principles applicable on such an appeal were not in dispute. They were summarised by Kirby P in Francis v ICI Australia Pty Ltd!.

The appellant's case was that on 5 December 1987 he drove into the respondent's BP service station and served himself petrol from a self service pump.

Whilst holding the hose nozzle in his left hand and the hose near the nozzle in his right hand, he gashed the middle, ring and little fingers of his right with a wire protruding from the hose. This apparently minor injury did not heal causing allegedly severe injury and disability.

In my opinion it is clear that there are at least two bases upon which the jury could reasonably have found a verdict for the defendant.

First, it could have sensibly found that the defect in the hose being the protruding wire was not reasonably foreseeable. The evidence of Mr Con Kyriacou was that in sixteen years of trading at the service station he had never seen any defect in the subject hose, nor had he seen any hose fail in the manner in question. No customer during that period had ever alerted him to a defect of this nature in a hose. This absence of failure, or detection of failure, was notwithstanding daily cleaning of the pumps by himself and his family, monthly service calls by Gilbarco servicemen, three monthly inspections of the station by the lessor, BP, use of the pump by self service customers prior to the day in question, and use of the pump by self service customers on the day in question prior to its use by the appellant on that day.