Stojan (No 9) Pty Ltd v Kenway

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.