BERKELEY CHALLENGE PTY LTD v POTBURY and ORS [1997] NSWCA 44

BERKELEY CHALLENGE PTY LTD v POTBURY and ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, SHELLER and POWELL JJA 6 November 1997, 18 December 1997

[1997] NSWCA 44

Negligence — occupiers liability — evidence — hearsay — third parties — Northern Sandblasting Pty Ltd v Harris (1996-1997) 71 ALJR 1428 — Vial v Housing Commission of New South Wales [1976] 1 NSWLR 388

FACTS

The first respondent injured her ankle when she slipped on water lying on the common area of Minto Mall. She claimed against the owner and occupier of the Mall, who joined the manager and served a third party notice on the cleaning contractor, the present appellant. The trial judge found in favour of the first respondent and ordered the cleaning

contractor to indemnify the owner and occupier.

HELD

(1) The finding of negligence against the owner and occupier is not made out on his Honour's reasons as against the appellant;

(2) The appellant was a third party to the proceedings below, and lacks sufficient locus to challenge the verdict in favour of the first respondent.

Meagher JA On 10 December 1991 Mrs Potbury, accompanied by a friend Mrs Quinn, slipped on water which was lying on the common area of Minto Mall. She broke her ankle, a painful enough evidence for a lady of her age. The cause of the water lying on the floor was the explosion of water balloons which some schoolgirls threw into the Mall. The owner/occupier of the common areas of the Mall was Permanent Trustee Australia Ltd ("Permanent"). It had a management agreement with the appellant Baillieu Knight Frank Pty Ltd ("the manager') which agreed to manage the Mall on Permanent's behalf. The manager in its turn, had a contract with the appellant Berkeley Challenge Pty Ltd ("the cleaner") which obliged it to perform cleaning services for the common areas.