"Liability of a Body Corporate": Ridis -v- Strata Plan 10308 [2005] NSWCA 246
Author: Peter Ford   
Judgment Date: 1 August 2005
Jurisdiction: NSW Court of Appeal
In Brief
  • This case considered the duties of an owners’ corporation to maintain and repair property.
  • The case also considered whether the statutory duty contained in the Strata Schemes Management Act 1996 (“the Act”)imposed on an owners’ corporation a duty to inspect common property over and above the duty of an occupier at common law.
  • Specifically, the Court of Appeal considered whether s 62 of the Management Act imposed an affirmative duty upon the owners’ corporation to obtain an expert assessment of every possible source of danger in the common property and to upgrade that property in accordance with the current Australian Standards.  
  • The Court of Appeal decided there was no such duty.
Background
  • The respondent owners corporation (“the defendant”) managed and controlled the common property of a block of eight units in Bellevue Hill.
  • The appellant (“the plaintiff”) was an occupier of one of the units in the building when he sustained injury to his right arm.  The injury occurred when the plaintiff 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.
  • It was common ground between the parties’ 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.
  • The experts also agreed, and the primary judge found, that at the time the building was constructed there was no mandatory requirement for the installation of safety glass.
District Court Proceedings
  • The plaintiff alleged the defendant had breached its duty of care as occupier of the common property and its statutory duties under s 62 of the Act.
  • Section 62 is in the following terms:

“(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 owner’s corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owner’s 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”.

  • The primary judge dismissed the plaintiff’s claim at first instance, finding there was no breach by the defendant of its 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.
  • The plaintiff appealed to the Court of Appeal.
Court of Appeal Decision
  • On appeal, the Plaintiff essentially argued that s 62 required the Defendant to carry out a “safety audit”.
  • The Court of Appeal, per Hodgson and McColl JJA (Tobias JA dissenting), dismissed the appeal.
  • The Court held, per McColl JA, who delivered the leading judgment, that there was nothing in the text of s 62 or the context of the Act to suggest 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.
  • Her honour also held that 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.
  • Her Honour McColl JA observed:

“There is a considerable body of authority to the effect that an occupier will not be found to have breached the duty of reasonable care when an entrant is injured because of a defect in the premises which could not have been ascertained without the intervention of expert examination, in circumstances where there was nothing which would have caused the occupier to believe such an examination was warranted.”

  • Her Honour also observed that the relevant authorities demonstrated that the proposition that an occupier was under no duty to inspect their premises for unknown and unsuspected defects was supported by considerable authority at the time the Act was passed.
  • Her honour discussed at some length the High Court decision in Jones v Bartlett (2000) CLR 166 and concluded that the defendant’s position was also strongly supported by Jones v Bartlett, the factual circumstances of which were strikingly similar to the present case.  Jones v Bartlett was a claim by the adult son of the tenants of a house who was injured when he accidentally walked into an internal glass door which complied with the relevant legal Standard at the time of construction but not as at the date of accident.
  • In Jones v Bartlett the High Court unanimously rejected the Plaintiff’s claim and rejected any common law or statutory duty for an occupier to obtain an expert assessment of premises at the time of the lease.
  • In relation to Jones v Bartlett, McColl JA observed that the concept of maintaining and repairing was at the heart of the legislative regime considered in both cases.  Her Honour stated:

“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.”

Implications
  • This case confirms the existing common law position, namely that an occupier cannot be held liable for unknown and unsuspected defects.
  • The common law position is not extended by an owners’ corporation’s statutory duty to maintain and repair.
  • The decision confirms the principle in Jones v Bartlett that the question of whether an occupier has discharged its duties of maintenance and repair is to be judged by whether an ordinary person in the occupier’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.

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