Kavanagh v Ioannou [2002] NSWCA 2

New South Wales Court of Appeal

CITATION : Kavanagh v Ioannou [2002] NSWCA 2 FILE NUMBER(S) : CA 40503/01 HEARING DATE(S) : 30 January 2002 JUDGMENT DATE : 30 January 2002

Michael Kavanagh PARTIES : v Ioannou Investments Pty Limited (t/as The Shell Service Station Bundeena) JUDGMENT OF : Handley JA at 1; Giles JA at 22; Ipp AJA at 23

LOWER COURT JURISDICTION : District Court LOWER COURT DC 9648/99 FILE NUMBER(S) : LOWER COURT Balla DCJ JUDICIAL OFFICER :

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 CASES CITED: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 DECISION : Leave to amend notice of appeal as sought; 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)

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.