Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381

Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381

The appellants did not owe the respondent a duty of care to prevent harm from the criminal conduct of an unknown intruder merely because the assault on common property was reasonably foreseeable; the relationship of unit owner and body corporate or manager was not a recognised special relationship, and there was no reliance, assumption of responsibility, special vulnerability, special knowledge, high level of recurrent predictable criminal conduct, or relevant control sufficient to create such a duty. In any event, the misfeasance case failed because the evidence did not establish that the door would probably have been locked or that the assault would probably have been prevented if the...

Jurisdiction
Australia
Judgment Date
27 November 2002
Procedural Posture
Tort; Negligence; Personal Injury; Appeal / Appeal From a District Court Judgment and Verdict for the Plaintiff on Liability and Damages
Outcome
Appeal allowed; District Court orders set aside; judgment entered for the appellants.
Legal Topics
['duty of Care' 'injury Caused by Criminal Act of a Third Party' 'occupiers Liability' 'misfeasance and Nonfeasance' 'foreseeability' 'causation' 'common Property Security']
['tort Law' 'negligence' 'personal Injury' 'strata Title'] ['duty of Care' 'injury Caused by Criminal Act of a Third Party' 'occupiers Liability' 'misfeasance and Nonfeasance' 'foreseeability' 'causation' 'common Property Security']

Case Brief

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Procedural Posture

Tort; Negligence; Personal Injury; Appeal / Appeal From a District Court Judgment and Verdict for the Plaintiff on Liability and Damages

Legal Issues

  1. 1 ['Whether the risk of assault by an intruder on common property was reasonably foreseeable' 'Whether the body corporate and building manager owed the respondent a duty of care to prevent injury from criminal conduct of a third party' 'Whether any duty arose from a special relationship, reliance, assumption of responsibility, special vulnerability, special knowledge or control of access to the premises' 'Whether the case fell within any possible exception to the principle in Modbury Triangle Shopping Centre Pty Ltd v Anzil' "Whether deactivating the foyer door lock without installing an alternative security system caused the respondent's injuries" "Whether any failure to install a more effective security system caused the respondent's injuries"]

Ratio Decidendi

The appellants did not owe the respondent a duty of care to prevent harm from the criminal conduct of an unknown intruder merely because the assault on common property was reasonably foreseeable; the relationship of unit owner and body corporate or manager was not a recognised special relationship, and there was no reliance, assumption of responsibility, special vulnerability, special knowledge, high level of recurrent predictable criminal conduct, or relevant control sufficient to create such a duty. In any event, the misfeasance case failed because the evidence did not establish that the door would probably have been locked or that the assault would probably have been prevented if the...

Court Disposition

Appeal allowed; District Court orders set aside; judgment entered for the appellants.

Orders

  • ['The appeal is allowed.' 'The orders of the trial judge are set aside.' 'Judgment is entered for the appellants.' "The respondent is to pay the appellants' costs of the trial." "The respondent is to pay the appellants' costs of the appeal and is to have a certificate under the Suitors Fund Act 1951 if qualified."]