Vosebe Pty Ltd trading as Batemans Bay Window and Glass v Bakavgas

Court of Appeal (NSW)|2008-03-31|Before: McColl JA, Coll JA

Background 2 The proceedings arise from an incident in which the first respondent, Mr Nick Bakavgas, who was the plaintiff in one of two actions heard by Judge Robison, was involved on 16 September 2002. On that day, the first respondent, who was a labourer employed by Vapore Pty Limited ("Vapore"), a plasterer, was working on a building site in or around Batemans Bay. 3 The applicant, which trades as "Batemans Bay Windows and Glass", attended at the premises to make a delivery of glass doors. It was alleged at trial, and as I understand it is not in dispute, that one of the applicant's representatives sought assistance from a person on site to help remove the glass doors from the truck. The first respondent offered that assistance. His case at trial was that representatives of the applicant were directing him in how he undertook that task. 4 The first respondent also gave evidence at trial that it was a windy day. The glass doors were strapped onto the side of the delivery truck. In order to remove them it was necessary that they be unstrapped. The first respondent was apparently on the truck, assisting in the exercise of the doors being passed off it to the ground, when he said he felt the other glass doors move. Apparently fearing what might then eventuate he jumped off the truck and, as he did so, some of the glass doors in fact did fall off the truck, struck him, and he was injured. 5 He brought proceedings against Geoff Fielding Developments Pty Limited, the second respondent, which was the builder in charge of the site, and also against the applicant, alleging each had breached the duty of care owed to him - the negligence proceedings. The applicant cross-claimed against the second respondent in the negligence proceedings. 6 The other proceedings before Judge Robison involved Vapore's claim against the applicant pursuant to s 151Z(1) of the Workers Compensation Act 1987 seeking indemnity in respect of workers' compensation payments it had made to the first respondent - the indemnity proceedings. 7 The first respondent failed against the second respondent, but succeeded against the applicant. He was awarded damages of $539,917.20. The cross-claim was dismissed. In the proceedings between Vapore and the applicant, Vapore recovered a complete indemnity in the sum of $192,542.82 plus interest pursuant to s 151Z(1).

8 After judgment was delivered, the applicant sought a stay from Judge Robison. His Honour granted that application. He stayed execution of judgment for forty-two days, which Mr D J Russell of Senior Counsel who appears for the applicant on the Notice of Motion informed me would expire on 10 April 2008. However, his Honour also imposed a condition on that stay that the applicant pay 50 per cent of the amount of judgment within twenty-eight days, which Mr Russell informs me expired on about 27 March. The applicant did not pay that amount and accordingly Mr Russell accepts that there is no effective stay in place. 9 When the matter was called on for hearing Mr Russell informed me that he mentioned the matter on behalf of the second respondent which did not wish to take part in the application. 10 A Notice of Appeal was filed on 27 March 2008. That indicates that the applicant challenges the finding in favour of the first respondent on liability, its failure as against the second respondent and the quantum of damages. I will return to the nature of the challenge to liability in due course.

The stay application 11 Mr Russell read the affidavit of Elizabeth Ramsay sworn on 28 March 2008 in support of the stay application. She describes the nature of the proceedings. Significantly, she says in paragraph 10 that the first respondent does not have any significant means, an assertion which was not challenged. 12 Mr P Mahony of Senior Counsel, who appeared for the first respondent, relied on an affidavit of Kasarne Robinson sworn on 31 March 2008. That affidavit conveniently sets out the orders made by Judge Robison. It also annexed a copy of Ms Robinson's notes of his Honour's judgment, a transcript of that judgment not yet being available from court reporting. 13 It is apparent from the notes of his Honour's judgment, and it was not in contest on this application, that the issue of liability loomed large in both the negligence and the indemnity proceedings. His Honour concluded that what caused the first respondent to jump and the doors to fall, was a gust of wind. It was not in contest, as I understand, that the doors were not secured. His Honour also accepted for the purpose of considering an expert's evidence that the expert's assumption that it was a windy day had been made out. 14 His Honour also referred to a safety statement apparently produced by the applicant which, according to his Honour, indicated that it was aware of the dangerous nature of delivering glass, recorded that those responsible should not place themselves or co-workers in a position of danger and perhaps importantly, that anyone dealing with glass must complete training. His Honour described this as a code of practice for the installation of glass, but insofar as unloading the glass was concerned the statement also recorded apparently that glass must be stored safely and - while it is somewhat difficult to understand from the transcription - that if required to carry glass, a person had a right to refuse. What, if any, significance that had in the assessment of liability is not made clear. 15 Perhaps more significantly, the glass handling rules required that glass be pegged or tied if in doubt, that glass be stacked securely at all times, and that great care needed to be taken for unloading. A Mr Sierzega was apparently in charge of the unloading operation on the day in question. He was described as experienced. There was no issue that he was responsible for acting in accordance with the safety statement. His Honour in due course accepted that the first respondent should succeed on the issue of liability as against the applicant on the basis that although Mr Sierzega ought to have been aware of the windy conditions and the potential danger, he failed to follow the work safety method statement. His Honour concluded that the applicant owed a duty of care to the first respondent and that it had been breached. 16 The first respondent was struck on the side of the face by at least one glass door. In consequence he suffered a deep laceration of the jaw from his ear down, so deep that it which exposed both his upper and lower teeth. The applicant's case on the issue of quantum was that while he had suffered a grave injury that injury had resolved sufficiently that he was fit to return to work by December 2002. 17 The first espondent's case at trial was that in addition to the facial injury, he had also aggravated a pre-existing lumbar spine injury in the accident and had ongoing treatment, the necessity for which was accepted by the trial judge.

Submissions 18 Mr Russell submits that the Court ought to grant a stay on the basis of the undisputed evidence that the first respondent is impecunious and would be unable to repay the judgment if the applicant paid all or part of it to him: TCN Channel 9 Pty Limited v Antoniadis No 2 [1999] NSWCA 104; (1999) 48 NSWLR 381; Lockhart Shire Council v King [2005] NSWCA 236 (at [5]). 19 Mr Russell submits that the issue of liability was strongly contested at trial on a basis which could on appeal apparently undermine the opinion of the expert witness, namely whether or not it was in truth a windy day rather than an unexpected gust of wind which caused the doors to fall off in the way they did immediately prior to the first respondent being injured. He also argues the applicant has a string case on quantum.

20 Mr Mahony joins issue with Mr Russell on the likely outcome of the appeal, submitting, in essence, that the primary judge's findings of fact both on liability and quantum will withstand appellate scrutiny. He does not dispute, however, that some part of the judgment should be stayed but submits without identifying the proportion, and I say that without criticism of him, that some part of the judgment ought to be paid over and as to some other part, execution of judgment ought be stayed. He submits that the first respondent had a strong case on liability, that the applicant's chances of succeeding on liability as against him are unlikely to be successful and, as I understand his submission, that having regard to the primary judge's acceptance of the first respondent as a witness of truth insofar as issues of quantum are concerned, that any challenge to quantum is likely also to be doomed to failure.

Consideration 21 The principles concerning an application for stay of execution are well known, the overriding principle being to determine what the interests of justice require, the court tending in favour of granting a stay where there is a risk that the appeal will prove abortive if the applicant succeeds and a stay is not granted: Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685; New South Wales Bar Association v Stevens [2003] NSWCA 95 per Spigelman CJ (at [83]). 22 I should note, although Mr Mahony does not submit to the contrary, that it is not to point that the primary judge granted a stay conditional on 50 per cent of the judgment being paid over. The Court is not constrained by the outcome of an application for a stay at first instance: Alexander v Cambridge Credit Corporation Limited (at 692). It determines an application for a stay on the materials before it and not by reference to the outcome before the trial judge. 23 That principle that the Court tends in favour of granting a stay where there is a risk that the appeal will prove abortive if the applicant succeeds and a stay is not granted is highlighted in cases such as Antoniadis. In that case a defendant which had succeeded on appeal sought restitution of the judgment it had paid over, there having been no application for a stay. The plaintiff's solicitor deposed that the plaintiff was unable to repay the money: see Antoniadis (at [12]). It was in those circumstances that the Court admonished the profession that: "15 We can only express regret that a stay of execution was not granted in this case pending the hearing of the appeal. It was never suggested that the opponent ran any risk of losing the benefit of her judgments by being prevented from enforcing them pending the appeal. She was protected from the purely financial consequences of any delay by the accrual of interest on the judgments in the meantime. This Court regularly stays execution on judgments pending an appeal where there is a risk that the plaintiff will be unable to repay the money without difficulty or delay if the appeal were to succeed. 16 Adherence to this principle would have prevented the present embarrassing situation where the Court has enforced interim payment to the plaintiff but repayment cannot or will not be made without further litigation in the Federal Court with a risk that the opponent will be made bankrupt without the claimant recovering its money." 24 The applicant on the present motion wisely seeks to avoid the Antoniadis outcome - which included an order that the defendant, which was successful on its claim for restitution, pay the costs of the application, its conduct in failing to seek an order for repayment at the hearing of the appeal having made the restitution application necessary: Antoniadis (at [20]). 25 I can see that there are arguments both ways on the issue of liability. It is necessarily a matter of impression as to whether or not the applicant might ultimately succeed, nevertheless there is also in this case clearly an issue of quantum which independently of the issue of liability could affect the amount which the first respondent might ultimately recover. 26 Those matters as well as the matter of the apparent impecuniosity of the first respondent make it a case in which, in my view, execution of the judgment ought be stayed pending the hearing of the appeal. 27 I make the following orders.

Stay execution of the judgment of Judge Robison made on 28 February 2008 in favour of Nick Bakavgas and against Vosebe Pty Limited pending hearing and disposition of the appeal.

Costs of the application to be costs in the appeal. **********

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CITATION: Vosebe Pty Ltd trading as Batemans Bay Window and Glass v Bakavgas [2008] NSWCA 55

Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 CASES CITED: Lockhart Shire Council v King [2005] NSWCA236 New South Wales Bar Association v Stevens [2003] NSWCA 95 TCN Channel 9 Pty Limited v Antoniadis No 2 [1999] NSWCA 104; (1999) 48 NSWLR 381

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