Stojan (No 9) Pty Ltd v Kenway

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NEW SOUTH WALES COURT OF APPEAL

CITATION:
Stojan (No 9) Pty Ltd v Kenway  [2009] NSWCA 364

FILE NUMBER(S):
40413 of 2008

HEARING DATE(S):
25 August 2009

JUDGMENT DATE:
12 November 2009

PARTIES:
Stojan (No 9) Pty Ltd - Appellant
Carolyn Adel Kenway - First Respondent
Ballina Shire Council - Second Respondent

JUDGMENT OF:
Ipp JA McColl JA Basten JA   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 84/06

LOWER COURT JUDICIAL OFFICER:
Blanch CJ DC

LOWER COURT DATE OF DECISION:
27 November 2008

COUNSEL:
A Katzmann SC with S Kettle for the Appellant
D E Grieve QC with G Radburn for the First Respondent
S Glascott for the Second Respondent

SOLICITORS:
Thompson Cooper Lawyers - Appellant
Bourke Love McCartney Young - First Respondent
DLA Phillips Fox - Second Respondent

CATCHWORDS:
TORTS – negligence – dangerous premises – duty of care – plaintiff fell on stairs leading from shopping plaza car park to council park – stairs constructed on land plaza had permission to use – stairs one of several exits from car park – whether owner of plaza occupier of stairs
TORTS – negligence – duty of care of occupiers and roads authority
HIGHWAYS – definitions – whether council “roads authority” in relation to stairs – whether stairs were or formed part of a “public road” – Roads Act 1993 (NSW), s 249 – whether installation of light over public road constitutes “road work”
TORTS – negligence – breach of duty – whether council and owner of plaza breached duty of care to plaintiff having regard to plaintiff’s obligation to take reasonable care for own safety – Civil Liability Act 2002 (NSW), s 5B
TORTS – negligence – causation and contributory negligence – plaintiff failed to use alternative exits to the car park – plaintiff let go of handrail on stairs and charged forward knowing lighting was inadequate – Civil Liability Act 2002 (NSW), s 5D, s 5R
DAMAGES – apportionment – concurrent tortfeasors – whether apportionment by primary judge unreasonable or plainly unjust
JUDGMENTS AND ORDERS – recovery against concurrent tortfeasors – plaintiff entitled to judgment for full amount against each
WORDS AND PHRASES – “public road” – “roads authority” – “road work” – “footway”  

LEGISLATION CITED:
Civil Liability Act 2002 (NSW)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Motor Vehicles (Third Party Insurance) Act 1942 (NSW)
Roads Act 1993 (NSW)
Supreme Court Act 1970 (NSW)
Transport Administration Act 1988 (NSW)

CATEGORY:
Principal judgment

CASES CITED:
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
Armory v Delamirie (1722) 1 Stra 505; 93 ER 664
Australian Safeway Stores Pty Limited v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635
Blacktown City Council v Hocking [2008] NSWCA 144
Blatch v Archer (1774) 1 Cowp 63 (at 65); 98 ER 969
Boyton v Nominal Defendant [1980] 2 NSWLR 509
Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001)…

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Details
Case
[2009] NSWCA 364
Decision Date

CaseChat Overview and Summary

The case of *Stojan (No 9) Pty Ltd v Kenway* involved an appeal and cross-appeal heard by the New South Wales Court of Appeal. The dispute concerned the liability of Stojan (No 9) Pty Ltd, the owner of a shopping plaza, and the local council for injuries sustained by the plaintiff, who fell on stairs connecting the plaza's car park to a council park. The plaintiff alleged negligence on the part of both Stojan and the council, arguing that the stairs were in a dangerous condition due to inadequate lighting and the presence of clothing bins obstructing the light.

The Court of Appeal was required to determine whether Stojan, as the owner of the shopping plaza, owed a duty of care to the plaintiff as an occupier of the stairs, even though the stairs were constructed on council land. Additionally, the court had to consider whether the council, as the owner of the land and potentially a roads authority, breached its duty of care. The court also had to assess the application of the *Civil Liability Act 2002* (NSW) regarding the breach of duty, causation, and contributory negligence, particularly in light of the plaintiff's actions in descending the stairs. Finally, the court was asked to review the primary judge's apportionment of liability between the concurrent tortfeasors.

The Court of Appeal reasoned that Stojan, by cleaning and attending to the council land where the stairs were located, and by the stairs being a significant means of access to the plaza, had assumed a sufficient degree of control and responsibility to be considered an occupier of the stairs. The court found that both Stojan and the council had breached their respective duties of care to the plaintiff. The court applied principles of negligence, considering the foreseeability of harm and the reasonableness of the precautions taken. It also addressed the plaintiff's contributory negligence, noting that the plaintiff had failed to use an alternative exit and had proceeded down the stairs despite inadequate lighting and the presence of obstructions. The court found that the primary judge's apportionment of liability was unreasonable and set it aside.

The Court of Appeal allowed the appeal and cross-appeal, setting aside the primary judge's judgment. The court entered a verdict and judgment for the plaintiff against Stojan and the council for the full amount of $168,135.85. The court then ordered that Stojan was entitled to recover one-third of the plaintiff's judgment from the council, and the council was entitled to recover two-thirds of the plaintiff's judgment from Stojan, effectively apportioning liability between the two defendants.

Orders

Orders of the court

1. Appeal and cross-appeal allowed. 2. Set aside the judgment of Blanch CJDC dated 27 November 2008. 3. Verdict and judgment for the plaintiff in the sum of $168,135.85. 4. Stojan and the Council to pay the plaintiff’s cost of the trial on the ordinary basis. 5. Set aside the order dismissing Stojan and the Council’s cross-claims. 6. Enter judgment for Stojan against the Council on Stojan’s cross-claim for one-third of the verdict and judgment in favour of the plaintiff. 7. Enter judgment for the Council against Stojan on the Council’s cross-claim for two-thirds of the verdict and judgment in favour of the plaintiff. 8. The Council to pay Stojan’s costs of the appeal on the apportionment issue. 9. Save as set out in paragraph 8, no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Campbell said that although he received the safety audit correspondence forwarded by the Council, he did not take any action in respect of the lighting matters it raised because he did not believe that any “of the items that were referred to were on what [he] believed is [indistinct, but I would infer to be Stojan’s] property”. In relation to the clothing bins, he gave evidence that he did not take any action to remove the bins because he did not “feel it was [Stojan’s] prerogative”. The Primary Judgment The primary judge delivered an ex tempore judgment. He found: “The shopping plaza was built in 1976. There was a laneway owned by the Council which came down from the park past the area where the steps are where the fall was and into the car park area associated with the Alstonville Shopping Plaza. In the course of the construction of the Alstonville Shopping Plaza the stairs were constructed presumably by the people who constructed the plaza but they are constructed on property which belongs to the Council. The property belonging to the Council which is used as part of the car park has always been cleaned and attended to by the second defendant, that is, the plaza. The steps however seem to have fallen into a no man's land between the plaza and the Council.” He concluded (26 November 2008, at 2), that photographs tendered in the plaintiff’s case, “clearly show the position of the clothing bins and…clearly demonstrate how the light would have been cut out by the clothing bins”. The primary judge then set out the evidence given by Mr Campbell as to the frequency of usage of the stairs and Stojan’s view of the stairs as the Council’s responsibility, the correspondence relating to the safety audit and Mr Campbell’s evidence as to Stojan’s response, or, rather, inaction on receipt: primary judgment, 26 November 2008, at 5-8. After referring to Mr Campbell’s evidence that he regarded the stairs “as the Council’s business” his Honour found that although the stairs were not exclusively used for the purpose of accessing the Plaza, it was “a safe conclusion that the stairs significantly related to the Plaza itself.” Further, he noted (primary judgment, 26 November 2008, at 8) that despite Mr Campbell’s evidence that few people used the stairs as a method of entering or exiting the car park, “It is clear in my view from the evidence that at least some people did use the stairs from time to time. It is not possible on the evidence in this case to say how many people but the stairs were there obviously not simply as an ornament. They were there as an invitation for members of the public to walk up the stairs and use them as a means of going from the car park to the park above. It is true as has been pointed out by [Stojan], that there are other means perhaps preferable means of exiting the plaza but there is no getting away from the fact that the steps are there and were put there for the very purpose of inviting people to use them as a means of leaving the car park and going up to the park which then gave ready access to the shops along the street.” (emphasis added)

Ratio Decidendi

Legal Principle Established

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