Rizk v FA Constructions Australia Pty Ltd

Judgment

1. BASTEN JA: On 18 August 2011 the applicant, Moussa Rizk, suffered injuries when several sheets of timber fell on him at premises on which the respondent company, through its director, Mr Edward Elwan, was carrying out work. Several sheets, each weighing about 30kg, fell on the applicant, fracturing his left tibia and fibula.
2. On 25 July 2014 the trial judge, Letherbarrow SC DCJ delivered judgment dismissing the claim. Although he accepted that the respondent owed the applicant a duty of care, he found that there was no breach and thus no liability. On the basis that he might be wrong in that regard, he stated that he would have found contributory negligence in the order of 90%; he also assessed damages in an amount of $94,000. If the contingent assessments were to be accepted, the amount in issue in these proceedings would be in the order of $10,000.
3. The applicant filed a summons seeking leave to appeal on 28 January 2016. As no notice of intention to seek leave to appeal had been given to the respondent, the application was approximately 16 months out of time. In his summons, the applicant sought an extension of time. The respondent opposed the extension.
4. In broad terms, the approach to be taken to such an application is to consider (a) the length of the delay, (b) the reason for the delay, (c) whether the applicant has a fairly arguable case on the merits and (d) the extent of any prejudice suffered by the respondent, acknowledging that the respondent has a vested right to retain the judgment obtained at trial. [1]

Delay in filing application

1. The applicant did not file an affidavit specifically supporting the extension of time, although it appeared from material filed in support of an earlier application for pro bono assistance that he had sought assistance from Legal Aid (NSW), and, when legal aid was refused, had also sought assistance from three solicitors through the Law Society's referrals scheme. None of those referrals resulted in the provision of assistance with an appeal although the written documentation filed in this Court reveals a significant degree of legal understanding. A referral for pro bono assistance by the Registrar of this Court, pursuant to a direction given by Barrett AJA on 2 May 2016, was limited to the obtaining of advice on the prospects of success. An application to have that referral extended to representation on the application for leave to appeal was rejected by this Court on 1 July 2016. [2]
2. The applicant appeared for himself at the trial in the District Court. He said he did not lodge a timely appeal because he did not know he was entitled to appeal. Part of the delay was said to have flowed from the fact that the copy of the full judgment of the District Court was not supplied to him until 1 July 2015. He also told the Court he was upset and depressed. His relationship had broken up and he had no fixed place of abode. It is understandable that he wished to explore all possible options for obtaining legal assistance before reconciling himself to running an appeal without legal representation. He has now taken the step of pursuing the appeal, but without having commenced proceedings in a timely fashion. Some delay may well be excusable in circumstances where a proper explanation has been given. In this case, the delay is excessive and no adequate explanation has been given as to precisely what steps were taken prior to the filing of the summons in January 2016.

Merit of application

1. Materials were placed before this Court, not merely for the purpose of obtaining an extension of time, but also for dealing with the application for leave to appeal. It is appropriate that consideration be given to the merit underlying the application, on the basis that, if the application for leave had demonstrable merit, it would be necessary to give careful consideration to the other factors. If the application for leave would be refused, there would be no purpose in granting an extension of time.
2. The trial judge was satisfied that the respondent owed the applicant a duty of care on the basis that when he attended the premises at the suggestion of the respondent's director (Mr Elwan) for the purpose of inspecting the timber panels which the respondent used and considering the available colours, he was on premises on which the respondent was installing materials which carried with them a risk of injury if mishandled. The judge accepted that the duty of care was "in the nature of that of an occupier of the premises." [3]
3. The evidence of the applicant at trial was that, whilst Mr Elwan was showing him the panels, Mr Elwan took a call on his mobile phone and then left the premises to complete the call, with a gesture which the applicant said he was unable to interpret. He continued looking at the panels and attempted to move one of them that was behind two others. That was when the panels fell forward breaking his leg.
4. The applicant had earlier given a statement in which he had said that as Mr Elwan walked out "he told me to leave the panels and that he will be back shortly." [4] The judge accepted that that was a probable course of events. He further concluded that the risk of harm should be characterised as "the risk that the plaintiff would attempt to move the panels despite the defendant's direction not to do so given to him shortly beforehand." [5]
5. The judge made a finding that it was not foreseeable for the purposes of s 5B(1)(a) of the Civil Liability Act 2002 (NSW) that an adult over 40 years of age, as the applicant was at the time, would disobey the direction given by Mr Elwan shortly after it was given by moving the panels in the way that the applicant did. [6] It was reasonably arguable that that finding might not stand on appeal. However, more significantly, the judge also found that, given the nature of the risk, a reasonable person in the position of the respondent would not have done any more or taken any additional precautions after the direction given. [7] For that reason the judge found there was no breach of duty. The error in that finding is not apparent.
6. The judge also considered an alternative risk, namely simply the risk of the panels falling. Again he said that he was satisfied that no further steps were required other than the direction given. [8] If the risk were of the panels falling without any interference by the applicant, that conclusion may be open to doubt. However, because the judge accepted that the panels fell because the applicant sought to move one of them, nothing turns on that.
7. Against the event that his conclusions might be considered in error, the judge addressed the question of contributory negligence. As this Court has said on more than one occasion, there are difficulties in purporting to quantify contributory negligence in circumstances where the comparator, namely the negligence of the defendant, has not been accepted. Nevertheless, it is unlikely that, even if the respondent were held to be negligent, it would bear more than a small proportion of the culpability for the accident.
8. Finally, the proposed appeal may have challenged the assessment of damages. It is difficult to see any reasonably arguable basis for challenging the various items in the award other than the amount for future economic loss. The trial judge found that hard to assess by way of calculation and awarded a "cushion" of $40,000. It is possible that, if the appeal were upheld on liability, there might be grounds for increasing that award by a further amount of a similar order. One can put it no higher.
9. The factors considered above give rise to two considerations. First, with respect to liability, the prospects of success in contending that Mr Elwan should have done anything more than he did in the circumstances are remote. Further, even if the applicant were successful in demonstrating that he should have, for example, asked the applicant to leave the premises while he took the call, it remains highly likely that the applicant would be found culpable in a high degree and that the result of his success would be unlikely to found a judgment in excess of $25,000.
10. For these reasons, namely (a) the unlikelihood of success on an appeal and (b) the fact that the amount involved is at best about one quarter of the amount under which leave is required, leave should be refused.

Conclusion

1. In these circumstances, there is no basis for granting an extension of time. The motion seeking an extension of time within which to file the summons seeking leave to appeal should be dismissed.
2. SACKVILLE AJA: I agree with the reasons given by Basten JA and the orders his Honour proposes. The critical consideration in my view is the lack of prospects of success of any appeal.
3. BASTEN JA: The motion seeking an extension of time within which to file the summons seeking leave to appeal is dismissed.

Endnotes

1. Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 at [4]; Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55].
2. Rizk v FA Constructions Australia Pty Ltd [2016] NSWCA 155.
3. Judgment at [46].
4. Judgment at [20], statement, par 12.
5. Judgment at [51].
6. Judgment at [52].
7. Judgment at [56].
8. Judgment at [59]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 August 2016