The Owners of Strata Plan 63477 v Ross [2005] NSWCA 162

The Owners of Strata Plan 63477 v Ross [2005] NSWCA 162

The appellant was not negligent because the isolated step was reasonably obvious and differentiated from the surrounding area, was visible on approach, and was not a hidden trap or hazard. The primary judge failed to address whether the appellant's failure to do more demonstrated a want of reasonable care in the circumstances. In any event, the harm was caused by the respondent's distraction from glare off the fountain, not by a causative breach consisting of failure to warn of the step.

Jurisdiction
Australia
Judgment Date
18 May 2005
Procedural Posture
Negligence Appeal From District Court Judgment / Appeal and Cross Appeal
Outcome
Appeal allowed; cross appeal dismissed; verdict and judgment below set aside; verdict entered for the defendant (appellant).
Legal Topics
['isolated Step' 'obvious Hazard' 'everyday Risk' 'reasonable Care for Safety of Invitee' 'wyong Shire Council V Shirt Calculus' 'causation' 'temporary Glare' 'contributory Negligence']
['tort Law' 'negligence' "occupiers' Liability"] ['isolated Step' 'obvious Hazard' 'everyday Risk' 'reasonable Care for Safety of Invitee' 'wyong Shire Council V Shirt Calculus' 'causation' 'temporary Glare' 'contributory Negligence']

Case Brief

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Procedural Posture

Negligence Appeal From District Court Judgment / Appeal and Cross Appeal

Legal Issues

  1. 1 ['Whether the appellant breached its duty of care by failing to alert pedestrians to or otherwise address an isolated step on commercial premises.' 'Whether the primary judge wrongly moved from foreseeability and preventability to breach without considering reasonable care in the circumstances.' "Whether any breach concerning the isolated step caused the respondent's fall, given the respondent was distracted by glare off a fountain." 'Whether contributory negligence arose for consideration.']

Ratio Decidendi

The appellant was not negligent because the isolated step was reasonably obvious and differentiated from the surrounding area, was visible on approach, and was not a hidden trap or hazard. The primary judge failed to address whether the appellant's failure to do more demonstrated a want of reasonable care in the circumstances. In any event, the harm was caused by the respondent's distraction from glare off the fountain, not by a causative breach consisting of failure to warn of the step.

Court Disposition

Appeal allowed; cross appeal dismissed; verdict and judgment below set aside; verdict entered for the defendant (appellant).

Orders

  • ['Appeal allowed' 'Cross appeal dismissed' 'Verdict and judgment below set aside' 'In lieu thereof, verdict for the defendant (appellant)' "The respondent pay the appellant's costs of the trial and of the appeal but to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled"]