KING v STEWART and ORS [1994] NSWCA 164

KING v STEWART

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and SHELLER JJA 19 and 20 October 1994, 19 December 1994

[1994] NSWCA 164

NEGLIGENCE — duty of care — causation — guest falls from elevated balcony of suburban home- findings as to causation of railing coming away — application of excessive and unexpected force causes bolt to eject — held: Claims fail on causation — no negligence on part of any defendant — cause of ejection of bolt was principally the injured party sitting on railing exerting excessive force — appeal dismissed.

NEGLIGENCE — occupier's duty — builder's liability — liability of local authority — young female guest at party falls from balcony of suburban dwelling and suffers injuries resulting in paraplegia — sues (a) occupiers for negligence in conducting party and providing alcohol on and near balcony; (b) builder for negligence in failing adequately to attach balcony railing to prevent its coming away; and (c) local authority for providing certificate following inspection for purposes of Local Government Act 1919 in certifying attachment of balcony railings although unsafe — primary judge (Smart J) finds that bolt attaching railing to wall was expelled from socket by imposition on top of railing of unreasonable force by the action of the injured guest sitting on it and by the application of other such force — rejects contention that railing came away by application to it of ordinary predictable force — findings confirmed by sound of crack heard shortly prior to guest's fall and discovery of bolt in rear yard — on appeal against judgment in favour of each of the defendants — held: (Sheller JA; Kirby P and Priestley JA concurring):

(1) The finding of the primary judge as to the cause of the failure of the bolt attaching the balcony railing was not shown to be wrong;