DABBAS V. FARCROFT PTY. LIMITED [2001] NSWCA 214

New South Wales Court of Appeal

CITATION : DABBAS V. FARCROFT PTY. LIMITED [2001] NSWCA 214 FILE NUMBER(S) : CA CA 40886/99 HEARING DATE(S) : 29th June 2001 JUDGMENT DATE : 29 June 2001

PARTIES : Joseph Dabbas - appellant Farcroft Pty. Limited - respondent JUDGMENT OF : Hodgson JA at 1; Young CJ in Eq at 38; Grove AJA at 44

LOWER COURT JURISDICTION : District Court LOWER COURT 5094/94 FILE NUMBER(S) : LOWER COURT Phegan DCJ JUDICIAL OFFICER :

COUNSEL : Mr. Dabbas appeared in person Mr. Sleight appeared for the respondent SOLICITORS : G.C. Goodman, Solicitor, Sydney for respondent CATCHWORDS : TORTS - Negligence - Appeal on questions of evidence and fact - No question of principle. ND DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40886/99 DC 5094/94

HODGSON JA YOUNG CJ in Eq. GROVE AJA Friday 29 June 2001 Joseph DABBAS v. FARCROFT PTY. LIMITED JUDGMENT

1 HODGSON JA: On 7 October 1991, the appellant was filling his taxi cab with liquid petroleum gas, otherwise known at LPG, at a service station occupied by the respondent, when he was burnt by escaping gas. The appellant brought proceedings in the District Court against the respondent, claiming damages for negligence. On 21 October 1999, Judge Phegan found a verdict for the defendant. The appellant appealed to this court from that decision. 2 I will commence by outlining the background of the proceedings and the primary judge's decision. 3 At about 6pm on 7 October 1991, the appellant drove his taxi cab alongside the LPG bowser on the respondent's property, and connected a hose from the bowser to his vehicle. This required a threaded nozzle to be screwed on to an inlet valve on the vehicle's tank. The appellant proceeded to operate a trigger mechanism on a handle of the nozzle. LPG leaked on to the appellant's right hand burning it. 4 The appellant's evidence was that he was initially unable to release the trigger or remove his right hand away from the gas, and that he was able to do so only with the assistance of his left hand which also was burnt by escaping gas. The appellant obtained assistance from an attendant on duty, among other things in placing his hands in warm water; and he was then taken to hospital, where he was treated for burns on his hands, and a smaller burn on his side. 5 The negligence proceedings were commenced on 4 October 1994. The appellant claimed that the respondent was negligent in two respects: firstly, in providing a defective bowser hose with a nozzle which permitted gas to escape, and secondly, in providing a trigger on the nozzle with a catch or locking mechanism, so that when the escape of the gas occurred the appellant was unable to release the trigger or remove his hand. It was common ground at the trial that a catch or locking mechanism of this kind was prohibited. 6 The appellant's evidence was that some of the fingers of his right hand had become locked behind the trigger mechanism as a consequence of the trigger locking into place. An unsigned statement by the appellant apparently made on 14 October 1991, that is one week after the accident, was tendered by the appellant and admitted without objection. In that statement the appellant gave the following account of the accident. STATEMENT BY: MR. JOSEPH DABBAS