Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364

New South Wales Court of Appeal

CITATION: Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364

HEARING DATE(S): 25 August 2009

JUDGMENT DATE: 12 November 2009

JUDGMENT OF: Ipp JA at 1; McColl JA at 2; Basten JA at 171

DECISION: 1. Appeal and cross-appeal allowed. 2. Set aside the judgment of Blanch CJDC dated 27 November 2008. 3. Verdict and judgment for the plaintiff in the sum of $168,135.85. 4. Stojan and the Council to pay the plaintiff's cost of the trial on the ordinary basis. 5. Set aside the order dismissing Stojan and the Council's cross-claims. 6. Enter judgment for Stojan against the Council on Stojan's cross-claim for one-third of the verdict and judgment in favour of the plaintiff. 7. Enter judgment for the Council against Stojan on the Council's cross-claim for two-thirds of the verdict and judgment in favour of the plaintiff. 8. The Council to pay Stojan's costs of the appeal on the apportionment issue. 9. Save as set out in paragraph 8, no order as to costs.

CATCHWORDS: TORTS – negligence – dangerous premises – duty of care – plaintiff fell on stairs leading from shopping plaza car park to council park – stairs constructed on land plaza had permission to use – stairs one of several exits from car park – whether owner of plaza occupier of stairs - TORTS – negligence – duty of care of occupiers and roads authority - HIGHWAYS – definitions – whether council "roads authority" in relation to stairs – whether stairs were or formed part of a "public road" – Roads Act 1993 (NSW), s 249 – whether installation of light over public road constitutes "road work" - TORTS – negligence – breach of duty – whether council and owner of plaza breached duty of care to plaintiff having regard to plaintiff's obligation to take reasonable care for own safety – Civil Liability Act 2002 (NSW), s 5B - TORTS – negligence – causation and contributory negligence – plaintiff failed to use alternative exits to the car park – plaintiff let go of handrail on stairs and charged forward knowing lighting was inadequate – Civil Liability Act 2002 (NSW), s 5D, s 5R - DAMAGES – apportionment – concurrent tortfeasors – whether apportionment by primary judge unreasonable or plainly unjust - JUDGMENTS AND ORDERS – recovery against concurrent tortfeasors – plaintiff entitled to judgment for full amount against each - WORDS AND PHRASES – "public road" – "roads authority" – "road work" – "footway"