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 40886/99

HEARING DATE(S):               29th June 2001

JUDGMENT DATE: 29/06/2001

PARTIES:
Joseph Dabbas - appellant
Farcroft Pty. Limited - respondent

JUDGMENT OF:       Hodgson JA Young CJ in Eq Grove AJA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          5094/94

LOWER COURT JUDICIAL OFFICER:     Phegan DCJ

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

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

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

   ADDRESS:  24/2 Kiora Road, Miranda, 2228

   TELEPHONE NO:  524 8635

   DATED:  14 October 1991

   DATE OF BIRTH:  25 November 1951

   DEPENDANTS:  Single

   EMPLOYED BY:  Mr Ian Wise of Pritchard Place,

   Peakhurst

   OCCUPATION:  Taxi Driver

   DATE OF INJURY:  7 October 1991

   ____________________________________________

   Leasing a taxi from him at an average of $80.00 to $116.00 per shift.  I have been doing this work for about a year.  Prior to that I was working as an electrician.

   On 7 October 1991 at about 6-10 pm I was at the Caltex Service Station at Catherine Cook Drive, Caringbah.  I was driving a Ford Falcon station wagon which I was driving for the first time that day.  It was an LPG gas taxi as usual as most of them are.  I in fact had used this service station many times before.  In this particular car, the filler port was on the side as usual.  I had in fact filled this car with LPG earlier in the shift.  I had had some difficulty getting the locking screw onto the car but had succeeded and filled in the normal fashion.

   On this occasion I went to this service station where I had been many times before and then put the apparatus onto the gas filler tank and screwed it on.  I thought it was on properly and then went to pull the trigger.  The trigger on the pump had not been modified as required by law.  I found out afterwards that it had an autofill pump, that is it had a catch on it so that one could lock the trigger on the open position.  It stayed on.

   I put it on and the trigger locked unbeknownst to me and the seal at the car end started to leak from the incorrect seal.  I therefore let the trigger go but because of the faulty trigger pump it stayed on with gas leaking everywhere.  I suffered gas (cold) burns to both hands and forearms, the right worse, and also to my left leg.  I had then to try and remove it from the car to stop it leaking and I ultimately kicked it off the car and it fell to the ground and then either the autocutout work or because of the shock as it struck the ground the trigger jarred loose and came shut.  I remember looking at the metre and seeing between $1.50 and $1.60 worth at about 31 cents a litre that is a fair number of litres of gas that went over the place.

   I was then taken into the garage and my hands were held under water until they warmed up.  They then drove me in my car to Sutherland Hospital Casualty and I was there on two occasions and then came under the care of my own doctor, Dr Paul Lavender, at 147 Edgecliff Road, Woollahra.  He operated on my right hand and removed blisters, etc and I am to go back to see him on 16 October 1991.

   I will probably go back to Sutherland Hospital today for a certificate to be off work further.

7. At the hearing, the appellant also produced a videotape apparently filmed fairly shortly after the accident, which showed taxi cabs being filled from the LPG bowser at the respondent's service station, and showed that, on at least two occasions, the driver connected the nozzle to his vehicle, apparently put the trigger into the on position, and then walked away leaving the attached nozzle unattended.

8. For the respondent, evidence was given by one Robert Dauncey, who was a director and co-proprietor of the respondent. His evidence was that the trigger mechanism on the LPG hose did not have a locking mechanism, and also that this bowser, the LPG bowser and hose, was the subject of regular checks both by Boral, the supplier of the gas, and also by inspectors under the Dangerous Goods Act. Mr Dauncey also gave evidence that it was a common practice of taxi drivers to jam a spark plug between the trigger and the guard, so as to hold the trigger mechanism in the on position. Mr Dauncey's evidence was that there had been no other instance of gas escaping from this bowser, apart from one occasion when his daughter incorrectly attached the nozzle.

9. A statement made by Mr Dauncey to insurance investigators in 1995, substantially consistent with his evidence, was also admitted into evidence. 

10. The primary judge in his judgment said that nothing in Mr Dauncey's presentation suggested that he was not a witness of truth. His Honour referred to the 1995 statement as being substantially consistent with his oral evidence.  He noted that there was no personal advantage to Mr Dauncey in his evidence, because he was no longer associated with the service station.

11. In relation to the appellant, the primary judge said that he was not persuaded that the appellant necessarily engaged in a conscious manufacture of facts which did not represent the truth, but that he considered it possible that the appellant's determination to establish the default of the respondent may have allowed him to colour his recollection.

12. The primary judge referred to the appellant's statement, apparently made one week after the accident, that the trigger had a catch so that it could be locked in the open position, and that he had to try to remove it from the car and ultimately kicked it off.  The primary judge concluded that the appellant had not shown that the leakage was caused by any fault in the apparatus.

13. In relation to the allegation that there was a locking mechanism on the trigger, the primary judge said that he was inclined to prefer the evidence of Mr Dauncey to that of the appellant; but that in any event, he was unable to conclude on the balance of probabilities that there was a locking mechanism on the trigger, or that this was the cause of the appellant's injury.  Accordingly, he held that the appellant had not proved that the respondent was negligent.

14. I will now outline the submissions made by the appellant in support of the appeal. 

15. He appeared unrepresented on the appeal, as he had before the primary judge.  The submissions concerned three principal matters:  firstly, alleged errors of the primary judge in the receipt and use of evidence; secondly, an alleged error in accepting the oral evidence of Mr Dauncey in the absence of any material evidence led by the respondent, and despite the material evidence led by the appellant; and thirdly, alleged prejudice of the primary judge against the appellant.

16. The main complaint in relation to evidence concerned matters relating to the receipt into evidence of what became Exhibit 9, namely a loss adjustor’s report dated 6 May 1995, and an associated written statement of Mr Dauncey.  The appellant submitted that this had been admitted into evidence during submissions, and not seen by him at all.  He submitted that the signed and dated statement by Mr Dauncey, included in Exhibit 9, was different from an unsigned and undated statement previously shown to the appellant and itself wrongly relied on by the primary judge.

17. The appellant submitted that the material in Exhibit 9 was used as evidence by the primary judge, although the primary judge had said it would not be used as evidence.  The appellant also submitted that the primary judge did not warn the appellant that, if he suggested to Mr Dauncey that he had lied, the earlier statement by Mr Dauncey might become admissible.

18. The other complaints concerning evidence, made by the appellant, concerned some photographs and some subpoenas. The appellant referred us to an exhibit containing six photographs taken by the appellant in 1999, some of which showed a trigger mechanism with a catch, apparently on a nozzle adapted for the delivery of LPG.  The appellant submitted that one of the photographs that he had taken and submitted, showing the connection of such a nozzle to a car, was absent from that exhibit, and had somehow been lost and not taken into account.  The appellant also complained about the absence from the file of two subpoenas which he had issued with a view to obtaining the attendance at the hearing of, as I understood it, Mr Dauncey, and also the other proprietor of the service station.

19. Turning to the second main area of submissions on appeal, the appellant referred us to the videotape taken by him shortly after the accident, and shown to the primary judge.  The videotape was played to this Court.  It showed drivers leaving the pump at which the accident occurred, apparently in operation and unattended.  The appellant also showed us the photographs he had taken at another service station in 1999, showing a nozzle trigger with a catch or locking mechanism.  He submitted that the primary judge should have accepted this evidence, together with the appellant's own evidence as proving that the nozzle trigger which he used in 1991 did have a catch.

20. The appellant submitted that the primary judge was wrong to accept Mr Dauncey's unsupported denial and unsupported statement that taxi drivers jammed the trigger open with spark plugs, where there was no material evidence produced to this effect, no photographs of the trigger even in 1995, particularly where the respondent had every opportunity to present such evidence.

21. The appellant submitted that the primary judge was wrong to accept Mr Dauncey's evidence in circumstances where the respondents did not call to give evidence the person on duty when the accident occurred, or Mr Dauncey's partner, particularly where the appellant had wished to do so.  The appellant submitted that Mr Dauncey's allegation about the spark plug was communicated to the appellant for the first time well into the actual hearing of the case, giving him no opportunity to answer it.  He submitted that Mr Dauncey did have a motive to give false evidence, because the truth could show that he had broken the law, and could disentitle him to operate a service station in the future.

22. Turning to the third main area of submissions, the appellant submitted, in reliance on the matters already raised in his submissions, and on the basis of the attitude of the primary judge as it appeared from the material, that whereas the primary judge had pretended to help the appellant, he had in truth been helping the respondent and was in fact prejudiced against the appellant.

23. I will now give my decision on each of the matters raised by the appellant. 

24. In my opinion, it is plain from the transcript that Exhibit 9 was admitted only for two limited purposes:  firstly to show the date and circumstances of the taking of photographs of the respondent's service station which were admitted into evidence; and secondly to provide evidence, by means of a statement made by Mr Dauncey in March 1995, which might rebut the suggestion that Mr Dauncey had recently invented his evidence, and in particular, his evidence concerning the use of spark plugs to hold the trigger in the open position.  The judgment confirms that Exhibit 9 was not used for any other purpose.

25. It appears from the transcript that an undated and unsigned copy of Mr Dauncey's statement was given to the appellant to read; and I can see nothing in the appeal material to suggest that the content of the signed and dated copy, which was later admitted, was any different from the content of the unsigned statement which the appellant had been provided with.  The use of exhibit 9 to establish the date and circumstance of the photographs was discussed with the appellant, and in my opinion was not a matter which could conceivably cause any prejudice to the appellant.

26. Accordingly, in my opinion, there is no substance in the complaint that exhibit 9 was admitted into evidence without being seen by the appellant.  It was not used as an expert's report, so there was no applicable requirement that it be served in advance of the hearing.

27. The appellant gave particular references in his written submissions in relation to a complaint that the primary judge used the material as evidence when he said he would not do so.  The first reference at Black Book 187 (or transcript 188) line 45, concerned a two page statement by a Mr Dooley which was not admitted into evidence.  The second reference at Black Book 188 (transcript 189) line 45, was a statement by the primary judge that the respondent's photographs were not evidence of the state of the bowser at the time of the injury.  This merely stated the obvious fact that they could do no more than prove how the service station and bowsers appeared at the time they were taken, that is, four years later.

28. As I have mentioned, the appellant complained that he was not warned that cross-examination could make the 1995 statement admissible.  A judge at a trial involving an unrepresented litigant must try to hold a delicate balance between assisting an unrepresented litigant, so as to ensure that the litigant does not, through unfamiliarity with the law and procedure, lose the opportunity of a fair hearing, and not giving such assistance as would remove a judge from the position of judging the case impartially between two opponents.  In my opinion, the absence of the warning complained about does not suggest any failing by the primary judge to hold this balance reasonably.

29. In any event, the statement was only admitted for the very limited purpose of showing that, if Mr Dauncey's evidence had been fabricated, the substance of it had already been fabricated back in March 1995.  In relation to Exhibit 9, in my opinion, no error by the trial judge is shown, nor is it shown that any use of Exhibit 9 had any significant impact on the judgment.  In my opinion also, the judge’s dealings in relation to Exhibit 9 give no support to the appellant's complaint that the primary judge was prejudiced.

30. In relation to the other complaints about evidence, in my opinion the material in the appeal books and the exhibits do not support a complaint that there is a missing photograph.  Indeed, in my opinion they suggest the contrary.  In my opinion the absence of subpoenas from the file is entirely irrelevant.  The case had to be heard and determined on the basis of evidence as called before the trial judge, and it was irrelevant that the appellant wished to call other witnesses whose attendance he did not secure.

31. Turning to the second main area of complaint, I accept, as did the primary judge, that the appellant's videotape showed the respondent's LPG bowser being used in circumstances where the nozzle was left unattended and in operation.  I accept that an inference was available that the trigger must therefore have had a catch on it.  I accept also that the respondent did not present any photographs or other documentary evidence to rebut this inference but, in order to rebut it, relied solely on the oral evidence of Mr Dauncey to the effect that there was no catch, that the bowser was subject to regular inspections by authorities, and that there was a practice of taxi drivers to jam the trigger open with spark plugs.

32. In those circumstances, in my opinion, it would have been open to the primary judge to accept the appellant's evidence that the trigger did have a catch which was admittedly unlawful.  However, in my opinion, it was also open to the primary judge not to be satisfied by the appellant's evidence to that effect.  The onus of proof of every element of the appellant's case rested squarely on the appellant, and it appears that the primary judge, with some justification, did not consider the appellant to be a completely reliable witness. 

33. This Court is entitled to interfere with such a factual finding of a trial judge only if this court is satisfied that the trial judge's decision was wrong.  I am not satisfied that the trial judge's decision, to the effect that the appellant had not proved there was a catch on the trigger, was wrong.

34. I would add to this also the following.  The appellant alleged two elements of negligence:  firstly, a defect causing a leak in the first place; and secondly, an illegal catch causing the trigger to jam and trap the appellant's fingers.  The primary judge's rejection of the first element of negligence has not been challenged, and in my opinion was plainly justified.

35. I do accept that, even without establishing that first element of negligence, it may have been possible for the appellant to succeed in this case on the basis only of the second alleged negligence; but to succeed solely on the second alleged negligence, the plaintiff would need to satisfy the court both that there was the illegal catch, and also that this catch in fact caused the injury.  I note that, although the appellant's statement, apparently made a week after the incident, alleged there was a catch, it did not allege that his fingers were jammed. Rather it suggested that the injury occurred as the appellant attempted to remove the nozzle from the vehicle.  In all the circumstances, in my opinion it would have been justified for the primary judge not to be satisfied that the injury was caused by the respondent's negligence on this basis also.

1. Dealing finally with the allegation of prejudice, none of the specific matters which I have dealt with in my opinion suggest any prejudice by the primary judge.  I have read the transcript and the judgment, and in my opinion there is nothing in the transcript or judgment to suggest prejudice by the primary judge.

2. So for all these reasons, in my opinion this appeal should be dismissed with costs.

3. YOUNG CJ in Eq:  This is an appeal from the District Court Judge Phegan, over a claim made by the present appellant that he had been injured on 2 October 1991 by the defendant's negligence, when he was filling his taxi with LPG gas at the Caltex Service Station at Carringbah.  The trial occupied four days in the District Court, and the learned judge delivered his judgment, a verdict for the defendant, immediately following the evidence on the fourth of those days.

4. The appellant's notice of appeal, the appellant appearing in person, simply states, (1) “prejudice judge”, (2) “work for the interest of the defendant and the insurance co”.  However the court has taken this notice of appeal to challenge generally the finding of facts that his Honour made in favour of the defendant.

5. I should however state that there is nothing in what I have seen in the evidence, and what the appellant has said, to make me think for a moment that Judge Phegan in any way departed from the high standards expected of any District Court judge.  The fact that the appellant may think so is really a result of him not understanding the rules of the evidence (as he said often enough before us, he is not a lawyer); and, coming to the view that there was no reason why he should have lost the case, he concluded that the only reason he lost must have been because of the prejudice that he has suggested.

6. However an objective reading of the judgment and the evidentiary material shows that the reason why the appellant lost the case was that he failed to produce sufficient evidence to satisfy the learned judge that he was entitled to succeed.

7. The appeal is on questions of fact, and the real question before us is whether the learned judge was entitled to take the view of the facts that he did.  An appeal can only succeed if, to put it simply or perhaps over simply, the judge did not find the facts in accordance with a reasonable view of the evidence.  It matters not whether the appeal judges would had they been the trial judges come to a different view on the facts, though in the instant case, I must say I would not have myself.

8. The learned presiding judge has carefully gone through the material and the challenges which the appellant has made.  This is not, for the reason that his Honour gave, a situation where the trial judge did not properly fulfill his task, and accordingly I must join in the view that the appeal should be dismissed with costs.

9. GROVE AJA:  It is apparent that the appellant, who has appeared for himself in the District Court and in this Court, is passionate about his contention that the defendant is to blame for the injury and losses which he claims.  His failure to obtain tort damages appears to have contributed to a perception that his life, over many years now since the accident in October 1991, has been of low quality.  He mentioned that he had been receiving social services and had lost property, including land and a car.

10. The outcome of the appeal cannot depend upon any sympathy which might be felt for the appellant's distress. It is also apparent that the appellant misunderstands the nature of the civil litigation upon which he has embarked.  He made several references to conviction, which he associates with the regulatory prohibition of the locking device described by Hodgson JA.  The appellant's perceptions revealed another misconception, namely that the allegation having been made, there was some onus on the defendant to justify its position.  Issues in litigation do not arise in this fashion in circumstances such as the present.

11. The appellant was found by the learned trial judge not to have discharged the onus of proof of negligence - including damaged caused by such negligence - in connection with the accident.  No relevant error in procedure or law has been demonstrated.

12. I should add that allegations of prejudice and bias against the trial judge are manifestly without foundation and, if anything, the transcript and reasons for judgment show his Honour's patience, courtesy and fairness in dealing with the appellant's claims.  For the detailed reasons given by Hodgson JA, the appeal should be dismissed with costs.

13. HODGSON JA:  The order of the Court is, the appeal is dismissed with costs.

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LAST UPDATED:     02/07/2001