Randwick City Council v T & H Fatouros Pty Ltd [2007] NSWCA 177

Reported Decision: 155 LGERA 37(2007) Aust Torts Reports 81-898

New South Wales Court of Appeal

CITATION: Randwick City Council v T & H Fatouros Pty Ltd [2007] NSWCA 177

HEARING DATE(S): 02/07/07

JUDGMENT DATE: 20 July 2007

JUDGMENT OF: Giles JA at 1; Ipp JA at 2; Tobias JA at 81

DECISION: (1) Appeal is upheld. (2) The judgment entered by the trial judge and the orders her Honour made are set aside and in lieu thereof there should be judgment for the Council. (3) Fatouros is to pay the Council's costs of the appeal and of the trial. (4) Fatouros is to have a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the appeal, if otherwise qualified.

CATCHWORDS: TORTS – negligence – duty of care – statutory powers of local authority – construction of stairway – whether appellant owed the respondent a duty to take reasonable care in the discharge of its statutory powers and functions to prevent the respondent from sustaining economic loss, being the respondent's liability in negligence for personal injuries suffered by a third party when he injured himself on an external stairway attached to a building owned by the respondent – respondent claimed from the appellant the damages it had agreed to pay the third party. - LOCAL GOVERNMENT – construction of stairway – approval of council – inspection of stairway by council – issue of fire safety orders and notices to the respondent – whether the appellant took on supervision of the entire building with respect to fire safety based on cl 80C(3) of the Environmental Planning and Assessment Regulation 1994 (NSW) – whether this clause required the appellant to include, in a fire safety schedule (issued under cl 80C(1)) to a fire safety order made under s 121B of the Environmental Planning and Assessment Act 1979 (NSW), fire safety measures relating to stairways – statutory fire safety measures under cl 80A. D