Mawdesley v the Owners of Careening Gardens  WADC
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
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
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
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.
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
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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