RYU v KARADJIAN [2006] NSWCA 144

New South Wales Court of Appeal

CITATION: RYU v KARADJIAN [2006] NSWCA 144

HEARING DATE(S): 28/04/2006

JUDGMENT DATE: 5 June 2006

JUDGMENT OF: Giles JA at 1; Tobias JA at 2; Bryson JA at 16

DECISION: 1. Appeal allowed; 2. Set aside the verdict and judgment of Acting Judge Murray dated 13 August 2004 in favour of the respondent and in lieu thereof enter a verdict and judgment for the appellant in the sum of $163,696; 3. The respondent to pay the appellant's costs of the trial and of the appeal but to have with respect to the latter a certificate under the Suitor's Fund Act, 1951 if otherwise qualified

CATCHWORDS: NEGLIGENCE - Occupiers Liability - the plaintiff, an experienced tiler, accompanied a tiler whom defendant had asked to attend at her house to give quotation for tiling work - defendant as owner-builder was carrying out building work, renovations, alterations and additions to the house, the work was incomplete and the areas to be tiled had bare concrete surface of balcony with two apertures left open for later installation of glass-tile skylights: apertures covered by gyprock held down by timber - no warning sign or other indication of aperture under gyprock - plaintiff stepped on gyprock and fell through to garage floor, suffering injuries - District Court found no breach of duty of care - on appeal held by majority, that there was a breach of duty in not giving a warning that the gyprock covered a substantial aperture - appeal allowed and damages awarded.

LEGISLATION CITED: Bankruptcy Act 1966 (Cth) s 82(2) Civil Liability Act 2002 (NSW) ss 5B, 5C, 5D, 5F, 5G & 5R

Francis v Lewis (2003) NSWCA 152 CASES CITED: Phillis v Daly (1988) 15 NSWLR 65 Wyong Shire Council v Shirt (1980) 146 CLR 40