Interesting Contributory Negligence Common Law Case

[Dave Whitefield]

This case involves unit owners of a Strata Title unit complex where a Body Corporate Committee exists to runt he complex.  These arrangements present an interesting legal position in general in that under common and statute law, the Committee can be taken to owe a duty of care to others.

In this case, the Chair of the committee asked the Secretary of the committee (both were unit holders) to check a leaking roof.  The guy fell through a skylight while doing this and was injured, and claimed the Chairman owed a duty to warn him, and so sued (my understanding is that he would have actually been taking action against the Body Corporate because of vicarious liability, and so claiming against the insurance it would hold for such an occasion).  The court kind of agreed that the Chair did owe a duty to warn, but then it was argued the Secretary should have known about the risks, and particularly because his job involved him preparing risk assessments for structures. So in the end the court awarded 50% contributory negligence, in other words, they were both equally at fault for the damages caused in the fall.

Just as a reminder for those that don't necessarily read about this stuff everyday….. contributory negligence is a common law concept only and so is not applied under Statute law.  Under a WHS Act prosecution, the Body Corporate could potentially be classed as a PCBU (particularly if it engages other workers such as cleaners or maintenance people), and the Secretary could be classed as a worker for this task, and so both the PCBU and Worker could be prosecuted, or only one, but they would not attribute legal liability to both under the same proceeding.

Full article below.

From Mondaq Alerts

Australia: Contributory Negligence - Experience counts against Plaintiff in Fall through Roof in Strata Development

31 October 2012

Article by Vidal Hockless and Nicky Pereira

Mawdesley v the Owners of Careening Gardens [2012] WADC 103

Facts:

On 18 September 2005, the plaintiff, in his capacity as secretary of a strata company, was on the roof of a block of units conducting an inspection to establish the source of a leak into one of the units.

In doing so, he fell through a polycarbonate sheet skylight, suffering permanent injuries and incomplete paraplegia. The inspection was being carried out at the request of the strata company Chairman. The plaintiff sued the defendant strata company for damages.

The Chairman, who occupied one of the units himself, had asked the plaintiff to attempt to identify the source of the leak before calling a plumber. The plaintiff claimed the defendant owed him a duty of care to warn him of the hazard created by the skylight. He alleged that it was a danger known to the strata company but not known to him. The defendant argued that the plaintiff had voluntarily assumed the risk associated with going onto the roof.

Decision

The court found that the Chairman was aware of the existence of the skylight and had a duty, on behalf of the strata company, to warn the plaintiff. His failure to do so meant that the defendant was primarily liable in negligence.

The court also had to consider contributory negligence and found that there was a degree of risk in climbing onto the roof. The plaintiff therefore had a duty to ensure that the inspection was carried out safely. As he could not distinguish the skylight from the rest of the roof, the particular danger it presented was not reasonably foreseeable.

However, the court went on to consider the wider issue of whether the plaintiff was negligent for failing to consider more carefully the overall risks associated with the task, particularly given his skill and experience. His job at the time was particularly relevant and included preparing job safety assessments for structures, including those with skylights. He had somehow overlooked applying his own procedures in such matters and his contributory negligence was therefore assessed at 50%. He was awarded damages of over $700,000.

Conclusion

Although the decision is of particular relevance to strata managers, it is of more general interest because of the substantial finding of contributory negligence. Of particular note is that neither the breach of duty by the defendant, nor the contributory conduct of the plaintiff, were particularly serious although the consequences clearly were. In such a situation, the comparison of the respective breaches, being at the lower end of the scale on both sides, may have influenced the assessment of their relative contributions.