Ridis v Strata Plan 10308 - [2005] NSWCA 246

No judgment structure available for this case.

Reported Decision:
63 NSWLR 449

Court of Appeal

CITATION:
Ridis v Strata Plan 10308 [2005] NSWCA 246

HEARING DATE(S):
10 May 2005

JUDGMENT DATE:

1 August 2005

JUDGMENT OF:
Hodgson JA at 1; Tobias JA at 14; McColl JA at 77

DECISION:
Appeal dismissed with costs

CATCHWORDS:
NEGLIGENCE - Personal injury - Occupiers' liability - Breach of duty of care - Nature and extent of owners corporations' statutory duties of maintenance and repair - Resident injured when glass in front door of building shattered over his arm - Whether owners corporation of building under a duty to inspect and replace glass in accordance with current safety standards - Whether s 62 of the Strata Schemes Management Act 1996 imposed on owners' corporation duty to inspect common property over and above that of occupier at common law

LEGISLATION CITED:
Building Units and Groups Titles Act 1980 (Qld)
Conveyancing (Strata Titles) Act 1961
Mines and Quarries Act 1954 (UK)
Occupiers' Liability Act 1985 (WA)
Residential Tenancies Act 1987 (WA)
Strata Schemes (Freehold Development) Act 1973
Strata Schemes Management Act 1996
Strata Schemes Management (Miscellaneous Amendments) Act 1996
Strata Titles Act 1973

CASES CITED:
Abela v Giew (1965) 65 SR (NSW) 485
Ahluwalia v Robinson [2003] NSWCA 175
Aslanidis v Atsidakos (Court of Appeal, unreported 13 February 1989)
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Baker v Gilbert [2003] NSWCA 113
Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) 206 CLR 512
Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33
Carre v Owners Corporation - SP 53020 [2003] NSWSC 397; (2003) 58 NSWLR 302
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Francis v Lewis [2003] NSWCA 152
Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33
Grunwick Processing Laboratories Ltd v Advisory Conciliation & Arbitration Service [1978] AC 655
Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614
Hamilton v National Coal Board [1960] AC 633
Haydon v Kent County Council [1978] QB 343
Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46
Hoyts Pty Ltd v Burns [2003] HCA 61; (2003) 77 ALJR 1934
Humphries v Proprietors Surfers Palms North Group Titles Plan 1955 [1994] HCA 21; (1994) 179 CLR 597
Jacklin v Proprietors of Strata Plan No 2795 [1975] 1 NSWLR 15
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
King v Stewart (1994) 85 LGERA 384
Lin v Owners - Strata Plan No 50276 [2004] NSWSC 88; (2004) 11 BPR 21,463
Lubrano v Proprietors of Strata Plan No 4038 (1993) 6 BPR 13,308
Margiz Pty Ltd v Proprietors Strata Plan No 30234 (1993) 30 NSWLR 364
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 78 ALJR 585
O'Connor v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464
Ordukaya v Hicks [2000] NSWCA 180
Owners - Strata Plan No 43551 v Walter Construction Group Ltd [2004] NSWCA 429
Phillis v Daly (1988) 15 NSWLR 65
Proprietors of Strata Plan 159 v Blake (1986) CCH Strata Titles Cases 30-068
Proprietors of Strata Plan No 6522 v Furney [1976] 1 NSWLR 412
Proprietors Strata Plan No 30234 v Margiz Pty Ltd (1993) 32 NSWLR 294
Puflett v Proprietors of Strata Plan No 121 (1987) 17 NSWLR 372
Sattel v Proprietors Be Bees Tropical Apartments Building Units Plan Number 71593 [2001] QCA 560; [2002] 2 Qd R 427
Short v Barrett (Court of Appeal, unreported 5 October 1990)
Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424
Simons v Body Corporate Strata Plan No 5181 [1980] VR 103
Stannus v Graham (1994) Aust Torts Reports 81-293
Tame v New South Wales (2002) 211 CLR 317
Tucker v McCann [1948] VLR 222
Watson v George [1953] HCA 41; (1953) 89 CLR 409
Western Suburbs Hospital v Currie (1987) 9 NSWLR 511
Wilkinson v Law Courts Ltd [2001] NSWCA 196
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

PARTIES:
John Nicholas Ridis
Proprietors of Strata Plan 10308

FILE NUMBER(S):
CA 40459/04

COUNSEL:
Cl: S Norton SC / F e Welsh
Opp: M A McDonagh

SOLICITORS:
Cl: Castagnet Lawyers, Sydney
Opp: Keddies Solicitors, Sydney

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 4547/02

LOWER COURT JUDICIAL OFFICER:
Bishop DCJ

CA 40459/04
DC 4547/02

HODGSON JA
TOBIAS JA
McCOLL JA
Monday 1 August 2005

JOHN NICHOLAS RIDIS v THE PROPRIETORS STRATA PLAN 10308

The respondent was the owners corporation having the management and control of the common property of a block of units at 206A Victoria Road, Bellevue Hill (the building). The appellant was an occupier of one of the units in the building when he sustained an injury to his right arm. The injury occurred when the appellant was entering the building via the front door and put out his hand to prevent the door from closing and locking on him. The glass pane in the door shattered and severely lacerated his right forearm.

At the time of the accident the glass pane in the door was ordinary annealed glass and was the original glass as installed when the building was constructed in or about 1939. Such glass was known to shatter into dangerously sharp shards when impacted upon. Contemporary safety standards required the installation of safety glass in the front doors of new buildings, although such standards did not apply retrospectively to existing buildings. The standard required that if existing annealed glass was to be replaced it should be replaced with safety glass.

The appellant claimed that the respondent, in not replacing the glass pane with safety glass, had breached its duty of care as an occupier of the common property and its statutory duties under s 62 of the Strata Schemes Management Act 1996 (the Act). That section was in the following terms:

62 What are the duties of an owners corporation to maintain and repair property?

An owners corporation must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.

An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.

This clause does not apply to a particular item of property if the owners corporation determines by special resolution that:

(a) it is inappropriate to maintain, renew, replace or repair the property, and
(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

The appellant’s claim was dismissed at first instance, the primary judge finding that there was no breach by the respondent or it common law duty of care and that s 62 did not impose upon an owners corporation a duty to inspect the common property over and above that of an occupier at common law to inspect and remove dangers or defects of which it was aware or ought to have been aware. It was against this finding that the appellant appealed to the Court of Appeal.

HELD per Hodgson and McColl JJA (Tobias JA dissenting), dismissing the appeal:

Per Hodgson JA:

1. The obligation under subsections (1) and (2) of s 62 of the Act means that an owners corporation, acting reasonably, should have a system in place for monitoring the maintenance and state of repair of the common property; the terms of subsection (3) mean that this system should be such that particular regard is had to safety issues associated with such maintenance and repair ([5]).

2. The evidence in the present case did not establish that inspections of the kind referred to above would, on the balance of probabilities, have brought home to the owners corporation the risk concerning the glass ([9], [11]).

Per McColl JA:

3. Nothing in the text of s 62, in the context of the Act and in its legislative history suggested that the legislature intended to impose on an owners corporation a standard of care higher than that imposed by the general law of negligence upon the occupiers of property ([175], [186]).

4. The duty of care owed by an occupier of premises to entrants is to take such care as is reasonable in the circumstances. Prima facie, an occupier has not breached that duty of care by not inspecting their premises for the purpose of discovering unknown and unsuspected defects ([133]).

Watson v George [1953] HCA 41; (1953) 89 CLR 409; Australian Safeway Stores Pty Limited v Zaluzna [1987] HCA 7; (1987) 162 CLR 479; Aslanidis v Atsidakos (Court of Appeal, 13 February 1989, unreported); Short v Barrett (Court of Appeal, 5 October 1990, unreported); Stannus v Graham (1994) Aust Torts Reports ¶81-293; King v Stewart (1994) 85 LGERA 384; Ordukaya v Hicks [2000] NSWCA 180; Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 referred to.

5. Subsections (1) and (2) of s 62 are directed to circumstances where something in the common property is no longer operating effectively, is defective or damaged or has fallen into disrepair ([158], [169], [177]).

6. Accordingly, those subsections did not impose upon the respondent an obligation to insert new glass in a door which was relevantly operating as intended ([157], [171], [178]); nor was the respondent obliged to conduct or procure the conduct of an expert assessment of every possible source of danger in the common property and, if so advised, upgrade that property to accord with contemporary safety standards ([156], [171], [177]): Jones v Bartlett considered.

7. The obligation in subsection (3) that the owners corporation have regard to “safety” imports an obligation of reasonableness not absolute safety ([156], [174]-[176]).

8. In the present case, in circumstances where there was neither evidence that the owners corporation was or should have been aware of any danger with regard to the glass nor evidence that an expert would have recommended replacement of the glass, the primary judge was correct in concluding that the owners corporation had not breached its duty of care ([189]).

Per Tobias JA (dissenting):

9. The obligation to renew or replace a fixture or fitting imposed by s 62(2) only arises where such action is “appropriate”, which involves a broader concept than what was necessary or needed. It would be “appropriate” to replace a fixture or fitting even though it was neither broken nor patently defective if it presented a reasonably foreseeable risk of injury because, for example, it did not comply with current safety standards ([49]-[50], [66]).

Proprietors of Strata Plan 159 v Blake (1986) CCH Strata Titles Cases 30-068; Lin v Proprietors Strata Plan No 50276 [2004] 11 BPR 21,463 referred to.

10. Accordingly, the obligations imposed upon the respondent by s 62(2) required it to inspect the common property from time to time for the purpose of, inter alia, replacing any item which it was appropriate to replace in the sense referred to above. Thus, a more proactive response by a reasonable owners corporation in the position of the respondent was called for than would otherwise be required of an occupier under the general law ([55], [57], [63], [73], [80]).

11. In the present case, the failure of the respondent to have inspected and replaced the glass constituted a breach of its statutory obligation pursuant to s 62(2) in the absence of a special resolution in terms of s 62(3). It would not have been open for such a resolution to have been passed because of the obviously dangerous nature of the glass pane ([56], [58]). It was possible to infer from the evidence that, had the glass been inspected by an appropriately experienced person such as an agent, it would have been recommended that it be replaced with safety glass ([61]-[63], [81]).

12. The fact that the respondent was in breach of its statutory obligation under s 62(2) was a factor entitled to considerable weight when carrying out the balancing exercise mandated by the Shirt calculus and, in the present case, tilted the balance in favour of a response that required the replacement of the glass pane ([67]-[69], [79]).

CA 40459/04
DC 4547/02

HODGSON JA
TOBIAS JA
McCOLL JA
Monday 1 August 2005

JOHN NICHOLAS RIDIS v THE PROPRIETORS STRATA PLAN 10308

Judgment

1 HODGSON JA: The circumstances giving rise to this appeal and the issues it involves are set out in the judgment of Tobias JA.

2 I agree with Tobias JA that the resolution of the appeal turns on the effect of s.62 of the Strata Schemes Management Act 1996 on the general obligation of an occupier of property to inspect and remove dangers or defects in that property of which it is aware or ought to be aware. That section is as follows:

62 What are the duties of an owners corporation to maintain and repair property?
(1) An owners corporation must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.
(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.
(3) This clause does not apply to a particular item of property if the owners corporation determines by special resolution that:
(a) it is inappropriate to maintain, renew, replace or repair the property, and
(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

3 In my opinion, the circumstances that the words “where necessary” do not appear in subsection (2) does not mean that the obligation under that subsection has no qualification, apart from that provided by subsection (3). Suppose that there is a light-fitting in the common property. Subsection (2) cannot mean that this light-fitting must be continually replaced, unless there is a determination by special resolution that this is inappropriate. This view is confirmed by the consideration that the terms of subsection (3) indicate that there cannot be a standing resolution not to replace a light-fitting. Paragraph (b) of subsection (3) indicates that such resolutions are to be directed towards particular occasions when replacement is under consideration.

4 Accordingly, in my opinion, either words such as “where necessary” or “where appropriate” must be implied, or alternatively subsection (2) must be read together with subsection (1) to the effect that renewal or replacement must be undertaken whenever appropriate in the course of properly maintaining the common property and keeping it in a state of good and serviceable repair, as required by subsection (1). It probably makes little difference in this case which of the two alternatives is chosen, but in my opinion the latter is the preferable view.

5 The obligation under subsections (1) and (2) of s.62 is not merely to exercise reasonable skill and care with a view to achieving the requirements of those subsections: the obligation is absolute. In my opinion, that means that an owners’ corporation, acting reasonably, should have a system in place for monitoring the maintenance and state of repair of the common property; and in my opinion, the terms of subsection (3) mean that this system should be such that particular regard be had to safety issues associated with the maintenance and state of repair of the common property.

6 However, in my opinion, this does not mean that the owners’ corporation must from time to time hire specialist experts to inspect every aspect of the common property that could possibly give rise to safety issues. Certainly, if it has reason to believe that any such aspect could be dangerous, such as electrical wiring, then it should engage the appropriate expert. But in the absence of any such reason, in my opinion an owners’ corporation, acting reasonably, would have in place a system of periodic inspection by someone with appropriate general skills, such as an experienced managing agent or a person with general building maintenance skills, and need not in that event have a system involving regular inspection by more specialised experts.

7 Turning to the facts of this case, I accept that, if the owners’ corporation had actually been aware that the glass in the door was such that it could shatter into dangerous shards in circumstances such as those of this accident, then the exercise of reasonable skill and care would have required precautions such as those taken after the accident in relation to the other door. However, it was not established that the owners’ corporation was aware of this, and the crucial question is whether, acting reasonably, it should have been aware of this.

8 In my opinion, it is not established that, s.62 aside, it should have been so aware. The question is whether s.62 makes a difference to this position.

9 In my opinion, that in turn depends on whether, on the balance of probabilities, inspections of the kind referred to above would have made the owners’ corporation aware of the problem. I do not think the primary judge was in error in holding that there was no statutory requirement for regular inspections of the common property over and above the general obligation to keep the common property at a satisfactory level of repair, so long as that holding is understood consistently with what I have said, as I believe it should be. The primary judge did not explicitly decide that such inspections as might be mandated by that general obligation would not have disclosed the problem, but I think this is implicit in his reference to inspection by a glazier.

10 The primary judge’s statement that there was no evidence as to whether or not a glazier would have recommended replacement is correct if taken as referring to direct and explicit evidence; but in my opinion there was evidence from which this could have been inferred. However, unless it were concluded that the owners’ corporation, acting reasonably, would have commissioned an inspection by a glazier, this statement does not bear on the final result of the case.

11 On the whole, I am not satisfied that the reasons of the primary judge display error such as to vitiate his conclusion. In any event, I am not satisfied on the material before this Court that inspections of the kind that I consider should reasonably have been arranged, with a view to fulfilling the s.62 obligation, would, on the balance of probabilities, have brought home the risk to the owners’ corporation. I agree with Tobias JA that the circumstance that this matter was not adverted to in the report of D.M. Scott of 14 December 1999 does not show that reasonable inspections would not have brought the risk home to the owners’ corporation; but the report certainly does not count against that proposition, and there is no material that satisfies me to the opposite effect.

12 Tobias JA also expressed the view that there was a breach of s.62 in relation to the door closer; and there could be a question whether there was a breach of duty of care by the owners’ corporation in failing to replace it. It could be said that the erratic behaviour of the door closer must have been obvious, so there is not the same question about knowledge of the problem by the owners’ corporation. However, in relation to the door closer (considered apart from the glass), I think the risk of injury, in terms both of likelihood and of extent of injury, was very small, and insufficient to make replacement of the door closer a matter which, by reason of this risk of injury, should reasonably have been attended to prior to the accident.

13 For those reasons, in my opinion the appeal should be dismissed with costs.

14 TOBIAS JA: The claimant is the owners corporation taken to have been so constituted under the Strata Schemes Management Act 1996 (the Act). As such it had vested in it the management and control of the common property of a block of eight units situated at 206A Victoria Road, Bellevue Hill (the building). The claimant was an occupier of one of the units in the building when he sustained an injury to his right arm. The injury occurred when the claimant was entering the building and put out his hand to prevent the front door closing and locking on him. The glass pane in the door shattered and severely lacerated his right forearm.

15 The claimant initiated proceedings in the District Court against the opponent, alleging that it had breached its duty of care as occupier of the common property and its statutory duties under s 62 of the Act. On 18 May 2004 his Honour Judge Bishop found that there had been no breach by the opponent of its duty of care and dismissed the claimant's claim with costs. It is from that decision that the opponent applied to this Court for leave to appeal.

16 The substantive appeal was heard concurrently with the appellant's application for leave. At the end of the oral argument the Court granted leave and reserved its decision on the appeal. I shall therefore refer hereafter to the claimant as the appellant and the opponent as the respondent.

The background facts

17 The front door to the building comprised two doors, each containing a single pane of ordinary annealed (as distinct from safety) glass which had been etched. The building was a security block requiring keyed entry or the use of an intercom.

18 The accident occurred on 3 February 2001 when the appellant and his partner had left the building to farewell some friends who had been visiting. After doing so the appellant's partner, who had the key to the front door, opened it and proceeded into the entrance lobby. The appellant was walking about two metres behind her when he saw the door closing very quickly. As the primary judge found, the appellant instinctively extended his right arm towards the glass pane on the right hand side of the door at 90 degrees with his fingers flexed in order to prevent the door closing and locking. As the appellant's fingers came into contact with the closing door it shattered into three jagged pieces causing severe lacerations to his right forearm as it passed through the doorframe.

19 The entry doors had a number of relevant features. Firstly, the lock that opened the doors was located on the left hand side of the wooden frame of the right hand door at or about shoulder height. After turning the key in the lock, entry was usually gained by pushing on the door's wooden frame. Secondly, the glass panel in each door was 645mm wide and 1720mm long with an area of 1.11m². These dimensions were relevant in that the expert evidence established that the larger the pane of glass, the more easily it would shatter if impacted. Thirdly, each of the pair of doors had a push-bar consisting of two flat metal bars, rectangular in cross-section, fixed across the outside face of the glass panes. The push-bar on the right hand door was fixed at about waist height on the left side of the doorframe below the lock and ran in an upward diagonal line to where it was fixed to the right hand side of the timber frame, but still below the level of the lock. Although the expert called by the respondent considered that the push-bar was visibly obvious and substantial and intended, amongst other things, to protect the glass against impact, the primary judge (at [22]) rejected that evidence and at ([29]) found that the push-bar served only a decorative purpose. There was no challenge to this finding

20 Fourthly, and of considerable relevance, the subject door (which swung inwards) had a door closing mechanism affixed to its inside face. The purpose of this device was two-fold. Firstly it was designed to ensure that the door closed automatically after it was opened; and secondly, it controlled the speed at which the door closed. However, the primary judge accepted (at [28]) the appellant's evidence that the door when closing had "a mind of its own" in the sense that sometimes it would close quickly, sometimes slowly, sometimes it would be hard to open and sometimes easy. On the occasion of the appellant’s accident his Honour found (at [29]) that the door "was closing very quickly" whereupon the appellant instinctively extended his arm at shoulder height to prevent it shutting on him. The relevance of the door closing mechanism causing the door to close very quickly on this occasion was that this would, as a matter of common sense, have increased the impact between the glass pane and the appellant's fingers.

The expert evidence

21 Each of the parties tendered expert evidence in the form of a report upon which the author was not cross-examined. The appellant's expert, Mr Gareth Shepherd, a Chartered Professional Engineer and Certified Professional Ergonomist, took photographs of the appellant outside the door indicating the manner in which his hand came into contact with the glass pane. The photographs confirm that his hand came into contact with the glass pane to the right of, and in line with, the door lock.

22 It was common ground between the experts that at the time of the incident, the glass panes in the doors were ordinary annealed glass rather than safety glass. It was also common ground that they were the original glass as installed when the building was constructed in or about 1939. Mr Shepherd noted that ordinary annealed glass was a brittle material which could, when broken, create sharp edges capable of causing serious injuries. It was because of this injury risk that regulations came into place over a period of years requiring the use of safety glass in front doors of buildings such as the present.

23 The respondent's expert, Mr Walter Giles, a consultant architect, agreed in his report that the glass in the subject door was plate glass that was commonly used in front doors of buildings prior to the advent of float and safety glass. He noted that plate glass was no longer manufactured, as it was known to shatter into dangerously sharp shards due, amongst other things, to impact.

24 The experts also agreed, and the primary judge found (at [21]), that at the time the building was constructed there was no mandatory requirement for the installation of safety glass. Consequently, it could not be suggested that at that time any relevant building regulation or Australian Standard had been contravened by the use of ordinary annealed glass. Furthermore, although since at least 1973 safety glass had been mandated for entry doors to apartment blocks such as the building, they were only required to be installed in new buildings and did not apply retrospectively to existing buildings. However, it was common ground that any glazier who was engaged to replace broken annealed glass was expected to comply with the requirements of the Australian Standards and regulations pertaining at the time and to certify that compliance. It was for this reason that the broken pane of the subject door was, after the incident, replaced by safety glass at a cost, including etching, of $1,200 and the existing unbroken pane was covered, at an additional cost of $300, with a film that made the glass in that door shatter-proof.

25 The appellant's expert, Mr Shepherd, considered that any process of risk management undertaken by the respondent with respect to the building would have involved consideration of a range of health and safety hazards including access/egress issues. He said:

"With respect to access/egress the main entrance/exit door should be assessed. One of the well-known hazards with respect to framed glass doors is the hazard of accidental breakage of the glass."

26 After referring to the fact that use of safety glass had long been recommended in areas where people could fall against or strike the glass, Mr Shepherd opined that a professional inspection of the glazed panel in the subject pair of doors "should" have identified the absence of safety glass and the non-compliance with the relevant Australian Standard (at least since 1979). In a supplementary report, Mr Shepherd said:

"In any inspection of the premises the door and glazed panels should be considered – from both a safety perspective and from a perspective of wear and tear and degradation over time. In regards to the glazed panel, it is predictable that, having been in place for many years, that there would be some degradation, for example, to the sealant which surrounds the glass and secures it into the timber frame. Expert advice would need to be sought from a glazier with respect to any degradation in the glass itself (eg due to UV damage or windloading – over time)."

27 The respondent's expert, Mr Giles, opined that to identify accurately the different types of glass would normally require the skills of an expert or at least a person with experience in glass. Nevertheless, he considered that it was

"quite easy to identify the difference between annealed glass and safety glass once it is broken. Annealed glass would have dangerous shards; whereas laminated safety glass would remain in one pane, or be shattered … "

28 The primary judge summarised the expert evidence as follows (at [21]):

"The plaintiff's expert pointed out that a proper inspection of the common property in the defendant's premises would have revealed that the glass in the doors was old and was not safety glass. Such a conclusion would have led to an awareness it was said that the age of the non-safety glass increased the possibility of fracture. In the view of the experts in the period of time that the glass had been in position there was more than adequate opportunity for a proper inspection leading to its replacement."

The state of the building

29 The building was bought under the Strata Titles Act 1973 (the 1973 Act) in 1976. Mrs Dawn Brunty had been a member of the respondent since that time. She gave evidence that the respondent employed a managing agent, D M Scott Pty Limited (D M Scott). She gave further evidence, which the primary judge accepted (at [17]), that as far as she knew the glass in the door was the original glass but that she was unaware of any prior incident affecting the front doors. The appellant gave evidence, which his Honour also accepted (at [26]), that the putty and wood at the back of the door was showing signs of age and that after the accident it was seen that part of the beading, which held the glass in place, had come away. There was no evidence that the glass had ever been inspected.

30 The appellant tendered in evidence a letter from D M Scott to the Executive Committee of the respondent dated 14 December 1999. It was headed "Building Maintenance Works" and commenced:

the most urgent maintenance work required

31 There then followed recommendations relating to windows in the building which had rotted sills, cracked paint and which required filling although the recommendation also extended to the reglazing of 10 of those windows. The other "most urgent maintenance work" comprised the painting of the building, the immediate replacement of the hot water unit (the inner cylinder of which was ruptured) and some repairs to the roof and gutters. It was recommended that a special levy should be raised totalling $34,000. The letter continued:

"A Special Levy of $34,000 would require an average contribution of $4,250 per unit, but there is no option, as all the above works must be done."

32 In light of this evidence, the primary judge found (at [30]) that maintenance of the building by the respondent was "not a high priority". He noted that the photographic evidence demonstrated that the front door had not been revarnished for a long time and he inferred from D M Scott's letter of 14 December 1999 that not much attention had been paid in past times to the level of funds available in the sinking fund.

33 The primary judge then referred to the well-known passage in the judgment of Mason J in Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 at 47 where his Honour states what is now known as the Shirt calculus. He then added that remarks by the High Court in Tame v New South Wales (2002) 211 CLR 317 tended to take a different approach to that adopted in Shirt. He referred to comments by McHugh J in Tame at 352 [98]. The primary judge then observed that those comments:

"… would focus the enquiry on whether the defendant knew or ought to have known that it had created an unreasonable risk of harm to others.

34 It was submitted by the appellant that to the extent to which the primary judge adopted that statement as the relevant test in lieu of the Shirt calculus, he fell into error. This submission would be correct were it not for the fact that I do not consider that that was the test his Honour ultimately adopted and applied.

35 The primary judge then referred to passages from the judgments of Gleeson CJ, McHugh J and Kirby J in Jones v Bartlett (2000) 205 CLR 166 at 177 [23], 197 [110] and 240 [252] respectively. In particular, his Honour noted the fact that Kirby J, in the context of imposing a relevant duty of care upon a landlord towards his tenant, opined that for

"a court to impose such obligations, involving duties of affirmative action, would be unusual. … [L]andlords until now, have been entitled to assume that their duty was limited to that of taking reasonable care to avoid foreseeable risk of injury from defects of which they were on notice or of which (by appropriate inspection) they would reasonably become aware because they were obvious to a reasonable landlord or its agent."

36 The essence of the primary judge's conclusion is contained in [36] of his judgment which I set out in full:

if

As a consequence of the findings in this passage, his Honour held that a breach of a duty of care by the respondent had not been established.

The submissions on the appeal

37 The appellant submitted firstly, that although the primary judge had referred to the Shirt calculus, he had made no finding as to whether the failure by the respondent to replace the ordinary annealed glass with safety glass in the front doors had created a foreseeable risk of injury. He submitted that such a risk was clearly foreseeable which then required his Honour to determine the reasonable response to that risk taking into consideration the magnitude of the risk and the degree of probability of its occurrence together with the expense and inconvenience of that response.

38 Secondly, it was submitted that having accepted that the decision of the High Court in Jones v Bartlett was not strictly in point (as it dealt with the relationship of landlord and tenant), nevertheless his Honour then went on to apply some of the statements in that decision in concluding that there was no breach of any duty of care by the respondent. This was so given the primary judge's findings that there was no evidence that:

(a) the respondent had been aware of any danger with regard to the glass pane;

(b) there had been any earlier problems with regard to the glass;

(c) there was any factor which should have led the respondent to have had the doors inspected by a glazier;

(d) an expert glazier would have recommended the replacement of the glass;

(e) suggested that a prudent owners corporation would have inspected the glass doors regularly or at all.

39 The appellant responded to these findings by submitting that the respondent had a statutory duty under the Act to properly maintain and keep in a state of good and serviceable repair the common property vested in it and which included the front doors. Further, it had a statutory duty to renew or replace any of the fixtures or fittings comprised in that common property of which the front door was one. Accordingly, although it was accepted that a breach of those statutory duties did not of itself give rise to a cause of action in damages, nonetheless, the respondent had breached those duties by its failure to carry out an inspection for the purpose of ascertaining whether the glass in the front doors required replacement because it was not safety glass, and which failure constituted a breach of its common law duty of care to the appellant.

40 The respondent submitted that the authorities required the primary judge to focus on whether it had or ought to have had knowledge that the glass in the front doors was ordinary annealed glass rather than safety glass. There was nothing in the urgent maintenance work referred to in the D M Scott letter that ought to have given rise to any suggestion that the front doors needed to be reglazed. The respondent was not comprised of experts who would have been able, as lay persons, to appreciate that the glass in the front doors was likely to shatter in a dangerous manner if severely impacted.

41 As there was nothing to alert the respondent to the fact that the glass in the front doors may have had a dangerous propensity to shatter, it could not be said that in the circumstances it was reasonably foreseeable that the retention of the glass, or its failure to inspect the glass, in the doors would have given rise to a risk of injury to the appellant or to a class of persons including the appellant.

Did the primary judge err?

42 The resolution of this issue turns in part upon the true construction of s 62 of the Act and upon whether the duties of the respondent thereunder informed the scope of its common law duty of care, in particular, to inspect the common property over and above that of an occupier of property to inspect and remove dangers or defects in that property of which it was aware or ought to have been aware. The primary judge considered (at [36]) that s 62 did not require regular inspections of the common property over and above a general obligation to keep the common property at a satisfactory level of repair. In my opinion, this finding involved a misconstruction of the obligations of an owners corporation under the section.

43 To put the issue another way: did the obligations of the respondent under s 62(2), when read in conjunction with s 62(3), on their true construction inform, for the purpose of the Shirt calculus, the standard of the response of a reasonable owners corporation in the position of the respondent to any foreseeable risk of injury related to the glass panels of the front doors of the building. In my opinion, the answer to that question is in the affirmative.

44 It is first appropriate to trace the history of s 62 with respect to strata title buildings and the duties of the body corporate/owners corporation in relation to the common property thereof. Such a review commences with the Conveyancing (Strata Titles) Act 1961 (the 1961 Act). Section 15(1) of that Act relevantly provided as follows:

"(1) The duties of the body corporate shall include the following:

(f) to keep in a state of good and serviceable repair and properly maintain the common property."

45 The 1961 Act was repealed by the 1973 Act. Section 68 of that Act set out the duties of the body corporate. Relevantly it provided as follows:

"(1) A body corporate shall, for the purposes of the strata scheme concerned, but subject to the provisions of any strata development contract affecting common property and to the operation of this Act in relation to the strata development contract:

(a) control, manage and administer the common property for the benefit of the proprietors;

(b) properly maintain and keep in a state of good and serviceable repair:

(i) the common property; and

(ii) any personal property vested in the body corporate;

where necessary

46 Part IV, Divisions 1-5 of the 1973 Act (which contained s 68) were repealed by the Strata Schemes Management (Miscellaneous Amendments) Act 1996. Those provisions were replaced by Chapter 3 of the Act. Section 61(1) now provides that an owners corporation has, for the benefit of the owners, the management and control of the use of the common property. Section 61(2)(a) provides that the owners corporation has responsibility for maintaining and repairing the common property as provided by Part 2.

47 Part 2 is headed "Maintenance and Repairs". Section 62 is in the following terms:

What are the duties of an owners corporation to maintain and repair property?

(1) An owners corporation must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.

(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.

(3) This clause does not apply to a particular item of property if the owners corporation determines by special resolution that:

(a) it is inappropriate to maintain, renew, replace or repair the property, and

(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme."

48 Firstly, a number of matters may be noticed about s 62 when compared to its predecessors. Whereas s 68(1)(c) of the 1973 Act imposed a duty (like s 62(2) of the Act) upon the owners corporation to renew or replace any fixtures or fittings comprised in the common property, the former prefaced that obligation with the words "where necessary" whereas the latter omitted them. In my opinion, that omission was deliberate.

49 Secondly, at first blush I considered that the duties the subject of subsections (1) and (2) of s 62, although framed in absolute terms, must have only imposed the duty if the common property required repair on the one hand or its fixtures or fittings needed renewal or replacement on the other in the sense that the relevant item was broken or patently defective. Upon reflection no such qualification as a matter of statutory construction is justified in view of the provisions of s 62(3) which did not appear in any of the predecessors of the section. However, this said, it must be the case that the obligation to renew or replace only arises where such action is "appropriate" as contrasted with a special resolution that renewal or replacement is "inappropriate" as so determined by the owners corporation pursuant to s 62(3)(a) subject to the strictures of s 62(3)(b).

50 But what is "appropriate" involves, in my opinion, a broader concept than what is necessary or needed. In other words, it would be "appropriate" to replace a fixture or fitting even though it was neither broken nor patently defective but which nevertheless, presented a reasonably foreseeable safety risk. Where that risk was, for instance, due to the antiquity of the installation of the fixture or fitting in question so that as a matter of probability it did not conform or comply with current safety standards which, if adopted, would avoid that risk, then in my opinion s 62(2) required its replacement.

51 This approach is consistent with that of Gzell J in Lin v Proprietors Strata Plan No. 50276 [2004] 11 BPR 21,463 at [47]-[48] where his Honour rejected a submission that the obligation to renew or replace in s 62(2) was limited to renewing or replacing parts of the common property that were no longer in a state of good and serviceable repair.

52 I would also refer to the decision of Yeldham J in Proprietors of Strata Plan 159 v Blake (1986) CCH Strata Titles Cases 30-068. In that case a body corporate at a general meeting resolved that it would not repair an air-conditioning system which formed part of the common property but served only the ground floor lots. The air conditioner had reached the end of its effective life and would have been extremely expensive to repair. Yeldham J held that, when the general scheme of the 1973 Act was considered, as a matter of construction the requirements of s 68(1)(b) and (c) were mandatory with the consequence that the body corporate could not decline to comply with them. The duty imposed upon the body corporate was absolute subject only to the maintenance or replacement of the item of common property being necessary. I have already commented upon the absence from s 62(2) of the Act of the qualifying words "where necessary" which appear in s 68(1)(c) of the 1973 Act.

53 Even if one were to read into the obligations imposed by s 62(1) and (2) the words "where necessary", in my opinion that would not relieve an owners corporation from being proactive in the carrying out of inspections for the purpose of determining whether proper maintenance, repair, renewal or replacement was in fact necessary. In other words, the qualification inherent in the expression "where necessary" would not justify an owners corporation simply "sitting pat" (to adopt the words of Mason P in Francis v Lewis at [58]) by reacting only to defects as and when the corporation became aware of them. Such an approach would, in my opinion, impose no greater duty upon the owners corporation than exists on any other occupier under the general law.

54 Thirdly, and in furtherance of the views expressed above, subsection (3) provides an exception and, in my opinion, the only exception to the absolute and unconditional duties imposed by subsections (1) and (2). It requires the owners corporation by special resolution to determine that it is inappropriate, for instance, to renew or replace a particular item of property provided that that decision not to renew or replace that item will not affect the safety of the building or the common property. In my opinion, the word "inappropriate" is sufficiently broad to cover a situation where any such renewal or replacement is unnecessary provided that the safety of the item is not compromised.

55 It follows in my opinion, that the obligations imposed upon the respondent by s 62(1) and (2) of the Act must be taken to have informed the standard of care reasonably required of it as an owners corporation with respect to its management and control of the use of the common property: s 61(1)(a). To discharge that standard of care the respondent was required to inspect from time to time the common property including its fixtures and fittings for the purpose of, inter alia, replacing any item thereof which it was appropriate to replace in the sense referred to above. The statutory regime, given the terms of s 62(3) in particular, required an owners corporation to be proactive and not, as the primary judge found the respondent to be in this case, merely reactive. It could not escape its statutory obligations by simply hiding its head in the sand.

56 Accordingly, and relevantly to the facts of the present case, s 62(2) of the Act obligated the respondent to replace the ordinary annealed glass panes in the front doors unless, by special resolution, it determined that it was inappropriate to do so and that its determination not to do so would not affect the safety of that item of property. As no such resolution had been passed by the respondent, it was in continuous breach of its statutory duty to those who were injured as a consequence of failure to replace that glass.

57 It also follows from the nature of the obligation under s 62(2) and the conditions set out in subsection (3), which inform an owners corporation's determination not to carry out that obligation, that the owners corporation must from time to time (depending upon the circumstances and the nature of the fixture or fitting in question) inspect the same for the purpose of determining whether it is inappropriate to renew or replace it without affecting any relevant question of safety. As I have observed above, there can be no doubt, in my view, that the statutory objective of s 62(1) and (2) is to require an owners corporation to adopt a proactive approach to the maintenance and repair of its property rather than a reactive approach. In the present case, the primary judge expressly found (at [36]) that the respondent had adopted the latter rather than the former approach.

58 On my construction of s 62, and as I have said, it must follow that the failure of the respondent to have at any time inspected and replaced the glass panels in the front doors constituted a breach of its statutory obligation to replace that glass pursuant to s 62(2) in the absence of a special resolution in terms of s 62(3). That it would not have been open for such a resolution to have been passed also follows, in my opinion, from the obviously dangerous nature of the glass panels, their propensity to shatter into ragged shards when impacted upon and the necessity as a matter of safety to replace them with safety glass in accordance with the Australian Standard current at the time of any such inspection.

59 Similarly, under s 62(1) the proper maintenance of the front doors required them to be inspected to ensure that they operated in a safe manner. In the present case, they did not. The door in question had a closing device that would, from time to time, cause the door after opening to close quickly with the consequence that a manoeuvre such as that executed by the appellant would cause an impact upon the glass which, given its propensity to shatter, gave rise to the foreseeable risk of it shattering and causing severe injury (as in fact happened).

60 The respondent's response asserted, as the primary judge found, that it had no actual awareness of any danger with regard to the glass given, in particular, that no previous problems with it had been encountered. In my opinion that is no answer to its statutory obligations which required the respondent to engage such experts as were necessary to enable it to meet those obligations. In the present case, the respondent had engaged D M Scott as its strata managing agent, which it was empowered to do pursuant to s 26 of the Act.

61 There is no evidence as to which, if any, of its functions the respondent delegated to D M Scott pursuant to s 28(1) of the Act. If it did delegate its functions under s 62, then it is clear that D M Scott did not perform them. If it did not, then it was still open to the respondent to seek D M Scott's advice with respect to the performance of those functions. After all, it is apparent from D M Scott's letter to the respondent of 14 December 1999 that it had been asked by the respondent to make an assessment of the building for the purpose of carrying out maintenance works. It can be inferred from the letter that D M Scott was only asked to assess "the most urgent maintenance work required". Such a request was, in my opinion, insufficient to fulfil the respondent's duties under s 62. A modicum of thought with respect to any inspection of the glass panes of the front doors would have made the inspector realise that the glass in those doors had been inserted when the building was erected in 1939 and not replaced since.

62 Further, it is appropriate to infer that an enquiry of a licensed and experienced managing agent would have resulted in the respondent being advised that that glass was not safety glass and that, due to the risk of it shattering if impacted, it should be replaced by safety glass in accordance with the current Australian Standard.

63 Accordingly, I would disagree with the primary judge's finding (at [36]) that s 62 did not call for regular inspections of the common property over and above the general obligation to keep the common property in a satisfactory state of repair. Furthermore, the fact that there was no evidence to suggest that there was any factor that should have led the respondent to have had the doors inspected by a glazier is no answer to what I consider to be its statutory obligation to carry out from time to time such inspections as were necessary to enable the respondent to determine whether it was appropriate for it to pass a special resolution pursuant to s 62(3). Absent such a resolution, it neglected its obligation to replace the glass panes of the front door which, had they been inspected by the an appropriately experienced person, would have been the subject of a recommendation that what was known to be the original ordinary annealed glass be replaced with safety glass.

64 Although the primary judge found that there was no evidence as to whether or not an expert glazier would have recommended replacement of the glass, such a finding was contrary to the practice of replacing ordinary annealed glass with safety glass where replacement was called for as, in my opinion, it was in the present case given the extensive use to which the entry doors were subjected: cf Francis v Lewis [2003] NSWCA 152 at [57]-[59] per Mason P with whom Hodgson JA and myself agreed.

65 The fact that the respondent was, in my opinion, in breach of its obligation under s 62(2) to replace the glass of the front doors (and particularly the right hand door which was the main entry door on which the lock and door closure device were located) does not mean that it was also in breach of its common law duty of care. Whether it was or not requires the application of the Shirt calculus.

66 In [50] above, I expressed the view that what was "appropriate" to require replacement of a fixture or fitting for the purpose of complying with s 62(2) did not require the relevant item to be either broken or patently defective in the sense that its replacement was needed or necessary for that reason. Nevertheless, replacement of a fixture or fitting may be needed or necessary not only because it is broken or patently defective but also because the risk of injury is reasonably foreseeable in the Shirt sense (that is, it is neither far-fetched nor fanciful) unless the item is replaced.

67 Thus to adopt and adapt the language of the Shirt calculus to the present case, a reasonable owners corporation in the position of the respondent would have foreseen that its failure to replace at least the right hand glass panel in the front door of the building with safety glass involved a risk of injury to those persons, including the appellant, who might, even inadvertently, push upon the glass to prevent the door from closing.

68 The reasonable owners corporation's response to that risk required consideration of the serious injuries which could result from the shattering of the glass pane and the relatively minor expense of replacing it as in fact was the case (see [24] above). On the other hand, the degree of probability of its occurrence may not be high given that there had been no similar incident in the past. Nevertheless, one could fairly say that it was an accident waiting to happen when one takes into account the problem with the door closing device (see [20] above) and the lack of utility of the push-bar and its categorisation by the primary judge that its purpose was only decorative (see [19] above).

69 When one adds into the balance the mandatory requirements of s 62(2) and the emphasis on safety reflected in s 62(3)(b), the balancing exercise called for by the Shirt calculus in my opinion tilts positively in favour of a response by the reasonable owners corporation in the position of the respondent which required the replacement of at least the right-hand glass pane of the front door with safety glass.

70 However, the respondent sought solace in the following passage from the judgment of Gleeson CJ in Jones v Bartlett where (at 176 [19]) his Honour said:

"Implicit in the proposition that reasonable care required that there should have been an expert assessment is the idea that all features of the premises potentially capable of harming someone who came onto the premises, or, at least, the prospective tenants and members of their households, should have been the subject of expert assessment. The glass door had been there for 30 years without causing any harm. It was an ordinary door, constructed in accordance with building practice and standards at the time when the house was built. There was no reason why it should have been the focus of special attention."

71 In the passage referred to, the Chief Justice was concerned with a case where the adult son of the tenants of a house sustained injuries when he accidentally walked into an internal glass door. The door complied with the legal standard applicable at the time of its construction although it was not safety glass as would have been required had the door been installed after 1973. The injured son sued the landlords for, inter alia, a breach of their common law duty of care. The High Court held that the landlords were not in breach of that duty.

72 There are a number of differences between that case and the present. Firstly, the landlords were not bound by a provision such as s 62 of the Act. They were bound by the Occupiers' Liability Act 1985 of Western Australia, which did not impose upon the landlords any greater duty of care to maintain and repair the demised premises than existed under the general common law with respect to occupiers of property. That Act expressly provided that the relevant standard of care was that which was reasonable. Secondly, the High Court was dealing with a domestic dwelling and an internal glass door. In the present case this Court is dealing with an apartment block in respect of which there was a deal of traffic in and out of what was a front (and not an internal) door.

73 But most importantly, in Jones v Bartlett there was no reason to focus special attention on the door, as it had existed for 30 years without causing any harm. It is true that in the present case the same observation might be made, but the difference is the statutory and intractable obligation upon the respondent to renew or replace fixtures or fittings such as the front door for which purpose it was required from time to time to inspect it and all other fixtures and fittings comprising the common property, at least where it was reasonably foreseeable that a safety issue might arise.

74 But the Chief Justice also said this (at 177 [23]):

unless, for some reason, the glass had to be replaced

75 In my opinion, the reason the glass had to be replaced in the front door of the building was because, subject to the passing of a special resolution pursuant to s 62(3), s 62(2) mandated its replacement. That is the critical difference between this case and Jones v Bartlett.

76 McHugh J dissented. However, at 197 [110], his Honour made observations which I consider applicable to the present case:

let for rental.

77 Kirby J in Jones v Bartlett was in the majority. At 237 [244], his Honour considered that his review of the laws of other jurisdictions illustrated a number of points of which point 4 was that:

"courts in other jurisdictions have held back from imposing positive duties to ensure inspection by experts to discover latent defects. Generally speaking, if such obligations are to be imposed by the law, it must be done with the authority of legislation."

78 A similar point was made by Hodgson JA, with whom Sheller and Bryson JJA agreed, in Ahluwalia v Robinson [2003] NSWCA 175. At [23] his Honour said:

Jones v Bartlett

79 In the above passage his Honour refers to a higher duty imposed by a contract. In my opinion, such a duty was imposed in the present case by s 62(2) and required the respondent, as an owners corporation, to do the very things that his Honour held were not, absent the higher duty, required of the landlord in that case. Although breach of that higher duty did not, of itself, give rise to a cause of action in damages, it was a factor entitled to considerable weight when carrying out the balancing exercise mandated by the Shirt calculus for the purpose of determining whether there had been a breach of the requirement of its common law duty of care.

80 I thus conclude that the effect of the imposition upon the respondent of the duty referred to in s 62(2) taken in conjunction with the provisions of s 62(3) was to require the respondent, in exercising reasonable care, to have regard to that statutory obligation as informing its approach to replacement of the glass pane of at least the right-hand front door in response to a foreseeable risk of injury that was likely to occur if it was impacted by being pushed and then shattering. Accordingly in my opinion a more proactive response by a reasonable owners corporation in the position of the respondent was called for than would otherwise be required of an occupier of property under the general law. In other words, the standard of the response of such an owners corporation with respect to the common property was greater than that imposed by the general law on an ordinary occupier.

Conclusion

81 For the foregoing reasons, I am of the opinion that the primary judge erred in finding that the respondent had not breached its common law duty of care to the appellant. Had it inspected the glass panes of the front doors, observing that the closing mechanism would from time to time result in the door closing quickly upon someone entering, it would have realised the necessity of replacing what were clearly unsafe glass panes with safety glass which complied with current standards.

82 I would therefore propose the following orders:

(1) Appeal allowed.

(2) Order that the verdict and orders made by Bishop DCJ on 18 May 2004 be set aside and in lieu thereof there be entered a verdict for the appellant against the respondent on the issue of liability.

(3) Order that the proceedings be remitted to the District Court for the purpose only of the assessment of damages.

Suitors' Fund Act

83 McCOLL JA: I have read Tobias JA’s judgment. His Honour has set out the relevant facts and the history of the proceedings. I shall repeat them only to the extent necessary to make clear my reasons for concluding the appeal should be dismissed.

84 The issue which this appeal raises is whether s 62 of the Strata Schemes Management Act 1996 (the “Management Act”) imposes an affirmative duty upon the respondent to conduct or procure the conduct of an expert assessment of every possible source of danger in the common property and any personal property vested in it (cf s 62(1)), and fixtures and fittings comprised in that common property and in personal property vested in it (cf s 62(2)) and, if so advised, to upgrade the materials in that property to accord with contemporary, albeit non-binding Australian Standards. I shall refer to the property encompassed by s 62 as the “common property” for convenience, but that expression should be taken to include the various genuses of property referred to in that provision.

85 It was common ground that, whatever be the content of the duty created by s 62, the entrance door formed part of the common property to which s 62 applied.

86 Section 62 of the Management Act provides:

“62 What are the duties of an owners corporation to maintain and repair property?

(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.

(3) This clause does not apply to a particular item of property if the owners corporation determines by special resolution that:

(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

Note:

Management Act

87 The appellant does not assert s 62 gave rise to a statutory cause of action: cf Lubrano v Proprietors of Strata Plan No 4038 (1993) 6 BPR 13,308. Rather, his argument is:

(a) section 62 imposed a duty on the owners corporation to engage experts to inspect the common property to determine whether or not the glass in the entrance door was “safe”.
(b) that such experts would have identified the glass as annealed glass and recommended its replacement with glass which accorded with an Australian Standards which came into operation at least forty years after the building was constructed.

(c) that s 62 imposed a duty upon the owners corporation to replace the glass as advised by such experts.

88 The appellant’s argument was, as might be expected, limited to the contention that s 62 imposed a duty on the respondent to inspect the glass in the entrance door. Carried to its logical conclusion, however, it amounted to an assertion that s 62 required that all features of the common property capable of affecting the safety of “any building, structure or common property in the strata scheme” (s 62(3)) should have been the subject of expert assessment: cf Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 at [19] per Gleeson CJ.

89 As much was apparent from the appellant’s submission that in order to discharge its s 62 duty, the respondent was required to carry out a “safety audit”. As I understood this submission such an audit entailed retaining the experts necessary to ensure that the common property was as safe as possible, with those experts required to take into account in their “safety audit” whether the materials incorporated in the common property complied with Australian Standards not in force at the time the building was constructed and whose provisions were not retrospective. If such an inspection had been undertaken, the appellant contended, “any audit of this common property after 1959, and before the accident, would most likely have picked up that this was not safety glass”. A necessary element of this argument was that not only would the presence of annealed glass been detected and drawn to the respondent’s attention, but that a recommendation would have been made that the glass either had to be treated by the application of an adhesive film or replaced.

90 It is open to the appellant to rely upon what he contends is the respondent’s breach of s 62 as evidence of negligence on its part, rather than as conferring a cause of action: see O’Connor v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464 at 477 per Dixon J. However a breach of s 62, if established, is not conclusive as to whether the respondent acted negligently. The common law duty to act reasonably in all the circumstances is paramount. Whether a failure to act in accordance with a statutory obligation constitutes a breach of that duty is a question of fact to be judged in the circumstances of the case: Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424 at 427; see also Abela v Giew (1965) 65 SR (NSW) 485 at 489; Tucker v McCann [1948] VLR 222 at 225 per Herring CJ.

91 The central question, therefore, is whether s 62 imposes the duty for which the appellant contends. It does not do so in terms. The appellant contends that the duty is imposed upon its proper interpretation.

92 Resolution of the interpretation issue turns upon determining the meaning the legislature is “taken to have intended [s 62] to have”. Determining that intention requires the court “(a) [to consider] the context … in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) [to use] 'context' in its widest sense to include such things as the existing state of the law and the mischief which … one may discern the statute was intended to remedy”: Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 78 ALJR 585 at [11] per McHugh ACJ, Gummow and Hayne JJ citing CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408. In the passage cited from CIC, Brennan CJ, Dawson, Toohey and Gummow JJ also observed (footnotes omitted):

Isherwood v Butler Pollnow Pty Ltd

93 Tobias JA has concluded that s 62 of the Management Act imposed, in substance, a duty of affirmative action upon the respondent pursuant to which it was required to inspect the common property “from time to time” and replace any fixture and/or fittings which, “even though it was not broken or patently defective … presented a safety risk or … did not comply with current safety standards” (see [50], [55]).

94 I do not agree. In my view the context in which the Management Act was enacted, including its legislative history, the legislative text, the principles of law governing occupiers liability and judicial interpretation of obligations of maintenance and repair (both in the context of strata schemes and in general law) militate against the interpretation of s 62 for which the appellant contends.

Legislative history

95 The Management Act came about as part of a process intended to separate the provisions of the Strata Titles Act 1973 (the “1973 Act”), which dealt with development and subdivision issues, from the provisions of that Act dealing with the management and administration of Strata Schemes: Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates, (Hansard), 13 November 1996, Volume 254, p 5915 (the “Second Reading Speech”).

96 As appears from Tobias JA’s judgment, the obligation on the body corporate to “keep in a state of good and serviceable repair and properly maintain the common property” appeared in substantially the same terms in the legislative instruments which preceded the enactment of the Management Act: see s 15(1)(f), Conveyancing (Strata Titles) Act 1961 (the “1961 Act”); s 68(1)(b), the 1973 Act. There was no reference to renewing or replacing fixtures and fittings in the 1961 Act. That obligation was first imposed expressly by s 68(1)(c) of the 1973 Act. The Second Reading Speech to the 1973 Act did not address the s 68 obligation, let alone explain the reason for the insertion of subs 68(1)(c): New South Wales Legislative Assembly, Parliamentary Debates, (Hansard), 26 September 1973, Volume 106, p 1313.

97 The Exposure Draft of the Strata Schemes Management Bill (which became the Management Act) took into account the recommendations of the Strata Titles Act Review Committee (the “Review Committee”) released in March 1996. A perusal of the Review Committee’s Report indicates (at p 16) that one issue was the definition of “common property” and the need for a “more detailed and appropriate and clearer guidelines on the division of responsibility (between body corporate and proprietor) for maintenance of common property”. According to the Report disputes arose because it was “not clear where the responsibility for maintenance and repair lies”. The Review Committee made a number of recommendations (at p 17) which were directed to clarifying the definitions of the “common property” (1.1) and the “lot” (1.2). It suggested that the definition of “common property” include detailed lists of what items were included and excluded (1.4) and that there be a definition of “proprietors’ fixtures” (1.5). None of the recommendations expressly addressed the content of the obligation to maintain the common property.

98 In the Discussion Paper which led to the Review Committee’s final report (Review of the Strata Titles Act 1973 – Discussion Paper – August 1992) the Committee referred (at page 15) to the absolute duty imposed on the body corporate to repair and replace common property, to the decisions in Jacklin v Proprietors of Strata Plan No 2795 [1975] 1 NSWLR 15 and Proprietors of Strata Plan No 6522 v Furney [1976] 1 NSWLR 412 (to which I refer below) and to “resentment to work carried out on common property by the body corporate that is purely cosmetic” and to “calls for a specific provision in the Act to prevent unreasonable upgrading of common property”.

99 Save in those respects, there was no reference in either the Discussion Paper or the Report of the Review Committee to the body corporate’s discharge of its obligations in relation to the common property, personal property vested in the body corporate or fixtures or fittings.

100 The Minister for Fair Trading, the Honourable Mrs Faye Lo Po’, described the Strata Schemes Management Bill and the Strata Schemes Management (Miscellaneous) Amendments Bill (which were introduced simultaneously) as “the most important initiative to be proposed for the management and operation of New South Wales strata schemes in over 20 years”: Second Reading Speech at 5915. The Minister explained that the Bills were intended to address “many shortcomings in the current laws” as well as to “take account of the many changes which have taken place in the development of strata buildings over the last two decades”. She said the Bills made “some fundamental and important changes to the roles of bodies in administering their schemes” – changes which she described, in general terms, as being “new, or more flexible by-law arrangements; much more appropriate ways of dealing with the inevitable disputes which arise within strata schemes; and streamlined meeting procedures … a new, more responsive role for the Commissioner, and a restructured Strata Titles Board …”: Second Reading Speech at 5916.

101 The only reference the Minister made to the work on the common property was to the new power of a Strata Schemes Adjudicator to give retrospective approval for alterations carried out to common property without body corporate consent and to order a responsible party to carry out future repairs and maintenance: Second Reading Speech at 5917.

102 In summary, therefore, prior to the introduction of the Management Act, desultory concerns had been expressed concerning unnecessary expenditure on upgrading the common property (Discussion Paper) and disputes concerning responsibility for maintenance and repair of property (Review Committee Report). Neither of these matters was referred to in the Second Reading Speech.

103 The predecessors to s 62 did not include an equivalent to s 62(3). There was no express indication in the Review Committee’s reports or in the Second Reading Speech of the mischief that clause was intended to remedy. At best, it might be inferred that it was inserted to provide guidance to the circumstances in which the owners corporation could decline to exercise a function. Such guidance would, no doubt, assist in the resolution of a dispute or complaint about either the exercise or failure to exercise a function conferred or imposed by or under the Management Act or the by-laws in relation to a strata scheme (s 138(1)(a)) during an adjudication under Chapter 5.

The

Management Act

104 The long title to the Management Act describes it as “an Act to provide for the management of strata schemes and the resolution of disputes in connection with strata schemes; and for other purposes”. The objects of the Act reflect the long title: s 3. On the registration of a strata plan for a strata scheme, there is established an owners corporation for the strata scheme in accordance with Part 2: s 8(1). It is constituted by the owners of the lots from time to time in a strata scheme: s 11(1). The owners corporation has the principal responsibility for the management of the strata scheme (s 8(2)) and the functions conferred or imposed on it by or under the Management Act or any other Act: s 12.

105 Chapter 3 of the Management Act sets out the “Key management areas” of an owners corporation for a strata scheme. The owners corporation has the management and control of the use of the common property of the strata scheme concerned for the benefit of the owners: s 61(1)(a). It has responsibility for maintaining and repairing the common property of the strata scheme as provided by Part 2 of Chapter 3: s 61(2)(a). “Common property" is defined in the Dictionary to mean “so much of a parcel as from time to time is not comprised in any lot”. This is the same definition as appeared in s 5(1) of the 1973 Act.

106 Part 2 of Chapter 3 is headed “Maintenance and Repairs”. Section 62, which I have already set out, deals with the duties of an owners corporation to maintain and repair property. As Tobias JA has observed, s 62 differs from its predecessor. First, s 68 (1) provided that “a body corporate shall … (b) properly maintain … the common property …. (c) where necessary, renew or replace any fixtures …”. The s 68(1)(a) and (b) obligations are now found in subs 62(1) and (2) respectively, each of which is introduced by the words “the owners corporation must …”. That alteration is of no moment. Subject to context, both “shall” and “must” are words of obligation: see Grunwick Processing Laboratories Limited v Advisory, Conciliation & Arbitration Service [1978] AC 655, especially at 690 per Lord Diplock and at 698 per Lord Salmon. It is plain that s 68 of the 1973 Act and s 62 of the Management Act impose an obligation to exercise the functions imposed upon the body corporate/owners corporation: The Proprietors of Strata Plan 159 v Blake (1986) CCH Strata Titles Cases ¶30-068. Secondly, the words “where necessary” no longer qualify the owners corporation’s duties in relation to renewing or replacing fixtures or fittings. Thirdly, subs 62(3) is entirely new and qualifies the obligations in both subs 62(1) and (2). I shall return to the significance of the last two changes.

…

When legislatures impose significantly extended liability, they normally do so with notice, after public consideration and

following an opportunity for advice on the ramifications. Such notice permits those affected to make their own judgments and to procure appropriate insurance.

[279] None of these steps can be taken by a court.” (emphasis added)

153 McHugh J concluded that the Commissioner’s decision that the respondents had breached their duty of care was correct and should not have been disturbed on appeal. In his Honour’s view, the respondents were obliged to have the premises inspected by experts who would, on the Commissioner’s finding, have recommended that the glass be replaced: see [102], [108]. He held (at [104] – [106]) that contemporary standards required persons such as landlords to recognise that “many materials, machines, equipment and building techniques can give rise to risks of injury beyond the comprehension of the ordinary householder or landlord”. “The inability of the ordinary landlord and householder to identify risks, which can have serious and sometimes fatal consequences” made it imperative, in his Honour’s view, “that residential premises let for rental should be inspected regularly by those capable of identifying such risks”. McHugh J rejected the “findings of fact in cases such as Watson v George, decided nearly fifty years ago, as provid[ing] no guidance as to what constitutes the exercise of reasonable care on the part of landlords” either at the time he was writing or, when the lease was entered into. By attributing the hypothetical expert’s knowledge to the respondents, his Honour concluded (at [109]) “that there was present in the premises a reasonably foreseeable risk of injury to persons such as the appellant of which the landlords ought to have known [and that] [t]he means of avoiding the risk of harm were also something that they ought to have known”.

154 In my view, Jones v Bartlett affords assistance in the resolution of the present case. It is true that, as Tobias JA has observed, neither statute considered in Jones v Bartlett contained a provision like s 62(3). However, as in this case, the concept of maintaining and repairing premises was at the heart of the legislative regime that case considered. The High Court’s unanimous conclusion that the statutory obligation of maintenance and repair was not breached by the failure to replace the glass in the door with glass which accorded with contemporary building standards casts light on the content of the s 62 obligation.

155 Nor, in my view, does the fact that Jones v Bartlett concerned domestic premises and an internal glass door establish a substantial factual distinction. As I have sought to explain, the common property of a strata scheme is more analogous to private domestic premises than to those occupied by public authorities or commercial enterprises. And the fact the door in the present case was an entrance door as opposed to an internal door is, in my view, of little moment. Both were intended to allow the passage from one area to another. Jones v Bartlett establishes that the entrance door “… was [not] dangerous when being used in a regular fashion and ordinarily would not be dangerous when so used”: see per Gummow and Hayne JJ at ([178], [180]). It also establishes that the door was not defective: see Gleeson CJ at [26], [37] and Gaudron J (at [89]). At best it might be suggested that the glass in the door constituted a latent defect: Jones v Bartlett per Kirby J (at [226], [237] and [249].

156 Finally, Gleeson CJ and Gaudron J expressly rejected the proposition that the obligation in the Occupiers’ Liability Act 1985 (WA) to take reasonable care to ensure the safety of entrants in respect of dangers arising “from any failure … in carrying out his responsibilities of maintenance and repair of the premises…”, imposed a duty of expert assessment on the respondents. As I shall later explain, in my view, the obligation in s 62(3) that the owners corporation have regard to “safety”, imports an obligation of reasonableness not absolute safety.

The obligation of maintenance and repair

157 The conclusion in Jones v Bartlett that a statutory obligation of “maintenance and repair” did not impose an obligation to upgrade to contemporary building standards glass in a door which was undamaged and in working order accords both with dictionary definitions and judicial consideration of the words “maintain” and “repair”. In my view it applies also to s 62(1).

158 “Maintain” is relevantly defined in the Macquarie Dictionary (Second Revision) to mean “… to keep in existence or continuance; preserve; retain … to keep in due condition, operation, or force; keep unimpaired …”. To keep something “in repair” involves restoring an object to “good or sound condition after decay or damage”: Macquarie Dictionary. Prima facie, therefore, the obligations of maintenance and repair in s 62(1) are directed to keeping the common property operational and to restoring something which is defective.

159 These interpretations are borne out by Sattel v Proprietors Be-Bees Tropical Apartments Building Units Plan Number 71593 [2001] QCA 560; [2002] 2 Qd R 427 which concerned legislation in pari materia to s 62 of the Management Act. In Sattel the Queensland Court of Appeal considered the ambit of the obligation in s 37(1) of the Building Units and Group Titles Act 1980 (Qld) which required a body corporate to “(c) ... properly maintain and keep in a state of good and serviceable repair (including, where reasonably necessary, renew or replace the whole or part thereof) (i) the common property...”.

160 de Jersey CJ (with whom Chesterman and Atkinson JJ agreed) held (at [27]) that the s 37(1)(c) obligation “centres on the preservation of the fabric of the premises”. Chesterman J, while agreeing with the Chief Justice that the appeal should be dismissed for the reasons given by his Honour, added (at [63]), after referring to dictionary definitions of “maintenance”, that “[t]he underlying notion [in s 37(1)(c)] is that the function of maintenance of plant or equipment is to avert or remove defects which would prevent their functioning as intended”.

161 That approach reflects Hamilton v National Coal Board [1960] AC 633 at 647, where Lord Keith of Avonholm said of “maintain” in the Mines and Quarries Act 1954 (UK) that “it should be construed as meaning to keep in proper order by acts of maintenance before the thing to be maintained falls out of condition”. Again, in Haydon v Kent County Council [1978] QB 433 at 364, Shaw LJ said that to maintain something “is to keep something in existence in a state which enables it to serve the purpose for which it exists”.

162 The last two cases were referred to with approval by Young J (as his Honour then was) in Greetings Oxford Koala Hotel Pty Limited v Oxford Square Investments Pty Limited (1989) 18 NSWLR 33. His Honour held (at 40) that a covenant in a lease providing that the lessor would “be responsible for and shall supply to the lessee” facilities and services including “maintenance in good and presentable condition of building generally … maintenance of lifts … and replacement when required …” meant that the Landlord was “obliged not only to attend to cases where there is a malfunction of the lift, but also to take such preventative measures as should ensure that the lifts should not malfunction and that if it comes about that despite these efforts the lifts malfunction to such an extent, then to replace the lifts with lifts that do function satisfactorily”.

163 This approach also accords with the interpretation given to the obligation on the body corporate/owners corporation to “keep in a state of good and serviceable repair and properly maintain the common property” which, as I have observed, has appeared in substantially the same terms in each of the legislative instruments dealing with strata schemes.

164 In Proprietors of Strata Plan No 6522 v Furney, Needham J held that remedying a defect in the original construction of the common property which was leading to water penetration of a unit, constituted “repair” pursuant to s 68(1)(b). He considered the extent of the body corporate’s s 68(1)(b) power to maintain the common property and keep it in a state of good and serviceable repair and said (at 416):

“The fact that repair includes replacement and renewal is clearly established, for example, by Greg v Planque, [1936] 1 KB 669 at p. 677 and in Burns v National Coal Board , [1957] SC 239 at p. 246 Lord Patrick said: ‘It is true that the primary meaning of the word ‘repair’ is to restore to sound condition that which has previously been sound, but the word is also properly used in the sense of to make good. Moreover, the word is commonly used to describe the operation of making an article good or sound, irrespective of whether the article has been good or sound before.’

165 Accordingly his Honour held that s 68(1)(b) empowered the body corporate to repair defects caused by bad workmanship or the use of bad or unsuitable materials in the construction of the building, and that the “addition of … necessary building articles to the buildings constitutes the keeping of the buildings in a state of good and serviceable repair”. Lush J followed Furney in Simons v Body Corporate Strata Plan No 5181 (at 107).

166 In The Proprietors of Strata Plan 159 v Blake Yeldham J held that s 68 of the 1973 Act imposed a mandatory duty on the body corporate to repair air conditioning plant which “formed part of the common property or was and is a fixture or fitting comprised in the common property” even though compliance with that duty would not be for the benefit of the proprietors of lots in the strata scheme as a whole. His Honour acknowledged the force of the appellants’ argument that there would be cases in which “it could not be ‘for the benefit of the proprietors’ [referring to s 68(1)(a)] as a whole or even a majority of them, that something forming part of the common property should be renewed or replaced, especially where the expenditure involved is considerable and the benefit to be derived, whether by some or all of the proprietors was minimal” but considered the obligatory language of s 68 was intractable. His Honour did not, apparently, attach any weight to the words “where necessary” in s 68(1)(c).

167 In Margiz Pty Ltd v Proprietors Strata Plan No 30234 (at 372 – 373), Powell J (as his Honour then was) held that notwithstanding that a body corporate is a creature of statute, its powers, when dealing with the common property, were not confined to those specified in the 1973 Act, but that there was an implied grant to do all things reasonably necessary to enable it to perform its duties. His Honour explained:

1973 Act

Allen v Proprietors Strata Plan No 2110

Proprietors of Strata Plan No 6522 v Furney

Auerbach v Beck

168 In Proprietors - Strata Plan No 30234 v Margiz Pty Ltd (1993) 32 NSWLR 294 at 297, McLelland CJ in Eq held a body corporate had failed to fulfil its s 68(1)(b) obligation in relation to an air-conditioning system in the common property which provided an inadequate supply of “comfortable and cool air” to the lower floors of a strata scheme and frequently delivered dirty air. However he also concluded (at 297) that the replacement of an air-conditioning system which was operating inadequately by a new or different system was governed by s 68(1)(c) rather than s 68(1)(b). In his view, “the installation of a replacement system would go beyond keeping the air-conditioning system in a state of good and serviceable repair within the meaning of s 68(1)(b)”.

169 Turning to s 62(2), it is apparent that it conveys the sense of repairing fixtures or fittings which have deteriorated, are damaged or are operating inadequately. “Renew” as relevantly defined by the Macquarie Dictionary means “to make new, or as if new, … restore to a former state”, while “replace” carries both the connotation of providing a substitute or equivalent or restoring or making good (Macquarie Dictionary).

170 This is consistent with the interpretation of s 68(1)(c) of the 1973 Act adopted by McLelland CJ in Eq in Proprietors - Strata Plan No 30234 v Margiz Pty Ltd. It also accords with Lin & Anor v The Owners - Strata Plan No 50276 in which Gzell J (at [47] – [48]), rejected a submission that the obligation to renew or replace in s 62(2) was limited to renewing or replacing parts that were no longer in a state of good and serviceable repair. He applied Proprietors of Strata Plan No 6522 v Furney and Proprietors - Strata Plan No 30234 v Margiz Pty Ltd to conclude that s 62(2) extended to obliging an owners corporation to upgrade an exhaust ventilation system which was incapable of servicing all lots in the strata scheme.

171 It is apparent from this analysis that subs 62(1) and (2) do not impose an obligation on the respondent to insert new glass in a door which, as in the present case, was relevantly operating as intended (and, therefore, did not require maintenance or repair) – let alone an obligation to procure experts to assess the premises to determine whether any of the materials of which the common property was constructed could be made safer. The appellant contends and Tobias JA has accepted, however, that the addition of s 62(3) enlarges the prima facie scope of those duties.

172 Tobias JA has concluded that such an obligation is imposed, as I understand his judgment, because the words “where necessary” which qualified s 68(1)(c) of the 1973 Act have not been repeated in s 62 and because s 62(3) requires an owners corporation considering not to effect an act of maintenance etc., to resolve that that decision is appropriate (to reverse the language of s 62(3)(a)) and will not (inter alia) “affect safety”.

173 I do not attach the same significance to the omission of the words “where necessary” as does Tobias JA. The words “where necessary” only qualified the obligation to renew or replace fixtures or fittings in s 68(1)(c) of the 1973 Act. It imported a relatively ambiguous discretion. It was such ambiguities that both the Discussion Paper and Report of the Review Committee suggested required greater delineation, no doubt, to eliminate or at least reduce disputes. That was achieved, in my view, by prescribing in s 62(3) the circumstances in which the owners corporation can be relieved of executing its subs 62(1) or (2) duty.

174 I do not accept that the s 62(3) requirement that an owners corporation considering not to take action under either subs 62(1) or (2) determine by special resolution that that decision is “inappropriate” and “will not affect the safety of any building, structure or common property in the strata scheme…” impose the duty for which the appellant contends. Considering whether an action is “inappropriate” requires the owners corporation to determine, in the circumstances, that it is unsuitable to undertake an item of maintenance etc. Considerations relevant to this decision may include the expense of the item of maintenance or repair.

175 Nor, in my view, does the requirement that the owners corporation turn its corporate mind to whether its decision will “affect … safety” impose upon it an obligation of ensuring the absolute safety of the common property. A decision whether to act or refrain from acting made by applying what, according to the Shirt calculus (Wyong Shire Council v Shirt) are the factors which guide the reasonable person, is a decision which “affects … safety”. Nothing in the text of s 62, in the context of the Management Act or in the legislative history suggests that the legislature intended, by the use of the words “affect…safety” in s 62(3), to oblige the owners corporation to have regard to a standard of care higher than that imposed by the general law of negligence in executing its functions. The duty of inspection for which the respondent contends would, as the discussion of the common law I have undertaken demonstrates, have that effect.

176 The conclusion that the words “affect … safety” do not impose an absolute obligation, or a duty of expert assessment, can be seen from the fact that s 62(3) requires the owners corporation considering not to undertake action under either subs 62(1) or (2) to pay equal regard to whether its decision will “detract from the appearance of any property in the strata scheme”. On the appellant’s argument that requirement would presumably mean that the owners corporation had to engage interior designers and/or architects – all being experts in issues concerning the “appearance … of property” - before it could be satisfied it had discharged its s 62 duties. Which designer’s opinion, one might rhetorically ask, would be preferable: an architect favouring the Tuscan look or an architect concerned to read “appearance” as meaning sympathetic with the original design?

177 In my view the nature of the qualification s 62(3) casts upon the owners corporation’s duties is best understood by reference to what subs 62(1) and (2) require it to do. Once it is understood, as I have explained, that those subsections are directed to circumstances where something in the common property, to put it shortly, is no longer operating effectively or at all, or has fallen into disrepair, then it is apparent that the owners corporation is not obliged to conduct or procure the conduct of an expert assessment of every possible source of danger in the common property, any personal property vested in it, and fixtures and fittings comprised in that common property and in personal property vested in it and, if so advised, to upgrade the materials in that property to accord with contemporary, albeit non-binding Australian Standards.

178 The obligation on the owners corporation to maintain the common property and to keep it in a state of good and serviceable repair and renew or replace any fixtures or fittings which have fallen into disrepair is not, therefore, attracted by a glass door which was otherwise in good repair and operating as intended, albeit that the glass in it did not accord with that used in contemporary buildings.

179 The express terms of s 62 do not impose the duty for which the appellant contends nor, in my view, does a purposive interpretation of that provision lead to that conclusion.

The appellant’s interpretation of s 62 is improbable

180 It is, highly improbable in my view, that the legislature intended s 62 to impose the duty for which the appellant contends. Nothing in the legislative history indicates a legislative intention to impose such a duty. While, as the Minister explained, the Management Act was intended to address “shortcomings in the current laws”, imposing an obligation of the nature of that for which the appellant contends was not identified as a mischief which required legislative attention.

181 Moreover the legislature could be expected to have recognised that the obligations imposed upon the owners corporation were imposed, in substance, upon individual property owners. There was no reason for the legislature, by the enactment of s 62, to impose upon individuals who take advantage of urban consolidation to live in properties governed by the Management Act, a burden of inspection and continually updating of the common property not borne by individuals who reside in freehold properties.

182 If as the appellant contends, and Tobias JA accepts, s 62 imposes a continuing obligation of expert inspection of the common property and updating it to contemporary, and arguably safer, standards an owners corporation would be in breach of duty whenever (albeit unbeknownst to it) an Australian Standard was published which, while non-binding in respect of existing buildings, required a different and arguably “safer” material to be incorporated in new buildings.

183 An owners corporation would not know how often the relevant experts should be engaged to conduct an assessment of the common property – let alone know what area of expertise should be summonsed for advice. The duty Tobias JA has carved out of s 62 would seemingly impose an obligation upon an owners corporation not only to engage experts to conduct relevant assessments, but also to ensure that it was regularly briefed on any changes in Australian Standards which might in some manner lead to improved safety of the common property – albeit that that common property was perfectly functional in ordinary use.

184 Nothing in the legislative history to the Management Act indicates that prior to its introduction the legislature was concerned to impose upon the owners corporation a statutory obligation of the nature of that for which the appellant contends.

185 A conclusion that s 62 imposed the obligation on owners corporations which Tobias JA has identified without expressly so saying would, in the final analysis, be remarkable. As Kirby J said in Jones v Bartlett (at [278]):

legislatures impose significantly extended liability, they normally do so with notice, after public consideration and

following an opportunity for advice on the ramifications

Management Act

186 The owners corporation, as I have explained, is merely the agent for lot proprietors insofar as its obligations to repair, renew and replace the common property are concerned. Once that is clearly understood, it makes no sense for the legislature to have imposed upon the sum of occupiers a statutory obligation more onerous than that imposed at common law at the time the Management Act was passed. There is no necessary implication in s 62, in my view, for construing it as altering the common law of occupier’s liability. It is true that it requires a special resolution for the owners corporation to reach a conclusion that a particular act of maintenance is inappropriate. That reinforces the importance of the decision being taken. When it is appreciated, however, that such a resolution is equally required in relation to safety as well as aesthetic issues, the significance of the special resolution requirement is, in my view, to indicate the issues which must be addressed before the owners corporation may decline to act and the weight of opinion which must be marshalled in favour of a decision to decline to act. The marshalling of the opinion of three-quartes of the members of the owners corporation would, no doubt, be considered significant in any challenge under Chapter 5 to its decision.

187 This does not mean that an owners corporation can turn a blind eye to issues of maintenance and repair. Section 75 requires the owners corporation to consider on an annual basis its actual and expected expenditure on recurrent and capital expenses. Accordingly the legislature has indicated that at least once a year an owners corporation is required to consider what the discharge of its s 62 duty will entail in terms of expenditure. No doubt an owners corporation considering such issues will conduct an inspection of the common property. However, in my view, prima facie, the question whether the owners corporation has discharged its s 62 duties of maintenance and repair is to be judged by whether an “ordinary person” in the owners corporation’s position “would or should have known that there was any risk; whether that person would or should have known of steps that could be taken in response to that risk; and the reasonableness of taking such steps”: Jones v Bartlett per Gummow and Hayne JJ (at [186]).

188 In the final analysis the question whether the s 62 duty has been breached in such circumstances as to constitute a breach of the owners corporation’s duty of care will depend upon the circumstances of each case.

189 It is worth, at this stage, repeating the primary judge’s findings that there was no evidence that:

(a) the opponent had been aware of any danger with regard to the glass pane;

(b) there had been any earlier problems with regard to the glass;

(c) there was any factor which should have led the opponent to have had the doors inspected by a glazier;

(d) an expert glazier would have recommended the replacement of the glass;

190 In my view the primary judge was correct in concluding in such circumstances that the respondent had not breached its duty of care.

191 I agree with the orders proposed by Hodgson JA.

**********

Citations

Ridis v Strata Plan 10308 [2005] NSWCA 246

Most Recent Citation

Cases Citing This Decision

100

McElwaine v The Owners - Strata Plan 75975 [2017] NSWCA 239

The Owners - Strata Plan 21702 v Krimbogiannis [2014] NSWCA 411

Cases Cited

32

Statutory Material Cited

9

Ahluwalia v Robinson [2003] NSWCA 175

Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7

Baker v Gilbert [2003] NSWCA 113

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CITATION:	Ridis v Strata Plan 10308 [2005] NSWCA 246
HEARING DATE(S):	10 May 2005
JUDGMENT DATE:	1 August 2005
JUDGMENT OF:	Hodgson JA at 1; Tobias JA at 14; McColl JA at 77
DECISION:	Appeal dismissed with costs

CATCHWORDS:	NEGLIGENCE - Personal injury - Occupiers' liability - Breach of duty of care - Nature and extent of owners corporations' statutory duties of maintenance and repair - Resident injured when glass in front door of building shattered over his arm - Whether owners corporation of building under a duty to inspect and replace glass in accordance with current safety standards - Whether s 62 of the Strata Schemes Management Act 1996 imposed on owners' corporation duty to inspect common property over and above that of occupier at common law
LEGISLATION CITED:	Building Units and Groups Titles Act 1980 (Qld) Conveyancing (Strata Titles) Act 1961 Mines and Quarries Act 1954 (UK) Occupiers' Liability Act 1985 (WA) Residential Tenancies Act 1987 (WA) Strata Schemes (Freehold Development) Act 1973 Strata Schemes Management Act 1996 Strata Schemes Management (Miscellaneous Amendments) Act 1996 Strata Titles Act 1973
CASES CITED:	Abela v Giew (1965) 65 SR (NSW) 485 Ahluwalia v Robinson [2003] NSWCA 175 Aslanidis v Atsidakos (Court of Appeal, unreported 13 February 1989) Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 Baker v Gilbert [2003] NSWCA 113 Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) 206 CLR 512 Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 Carre v Owners Corporation - SP 53020 [2003] NSWSC 397; (2003) 58 NSWLR 302 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 Francis v Lewis [2003] NSWCA 152 Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 Grunwick Processing Laboratories Ltd v Advisory Conciliation & Arbitration Service [1978] AC 655 Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 Hamilton v National Coal Board [1960] AC 633 Haydon v Kent County Council [1978] QB 343 Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 Hoyts Pty Ltd v Burns [2003] HCA 61; (2003) 77 ALJR 1934 Humphries v Proprietors Surfers Palms North Group Titles Plan 1955 [1994] HCA 21; (1994) 179 CLR 597 Jacklin v Proprietors of Strata Plan No 2795 [1975] 1 NSWLR 15 Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 King v Stewart (1994) 85 LGERA 384 Lin v Owners - Strata Plan No 50276 [2004] NSWSC 88; (2004) 11 BPR 21,463 Lubrano v Proprietors of Strata Plan No 4038 (1993) 6 BPR 13,308 Margiz Pty Ltd v Proprietors Strata Plan No 30234 (1993) 30 NSWLR 364 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 78 ALJR 585 O'Connor v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464 Ordukaya v Hicks [2000] NSWCA 180 Owners - Strata Plan No 43551 v Walter Construction Group Ltd [2004] NSWCA 429 Phillis v Daly (1988) 15 NSWLR 65 Proprietors of Strata Plan 159 v Blake (1986) CCH Strata Titles Cases 30-068 Proprietors of Strata Plan No 6522 v Furney [1976] 1 NSWLR 412 Proprietors Strata Plan No 30234 v Margiz Pty Ltd (1993) 32 NSWLR 294 Puflett v Proprietors of Strata Plan No 121 (1987) 17 NSWLR 372 Sattel v Proprietors Be Bees Tropical Apartments Building Units Plan Number 71593 [2001] QCA 560; [2002] 2 Qd R 427 Short v Barrett (Court of Appeal, unreported 5 October 1990) Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424 Simons v Body Corporate Strata Plan No 5181 [1980] VR 103 Stannus v Graham (1994) Aust Torts Reports 81-293 Tame v New South Wales (2002) 211 CLR 317 Tucker v McCann [1948] VLR 222 Watson v George [1953] HCA 41; (1953) 89 CLR 409 Western Suburbs Hospital v Currie (1987) 9 NSWLR 511 Wilkinson v Law Courts Ltd [2001] NSWCA 196 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
PARTIES:	John Nicholas Ridis Proprietors of Strata Plan 10308
FILE NUMBER(S):	CA 40459/04
COUNSEL:	Cl: S Norton SC / F e Welsh Opp: M A McDonagh
SOLICITORS:	Cl: Castagnet Lawyers, Sydney Opp: Keddies Solicitors, Sydney

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 4547/02
LOWER COURT JUDICIAL OFFICER:	Bishop DCJ