The New South Wales Court of Appeal recently considered a personal injury claim where a pre-purchase inspection report provided the factual basis for the trial judge to find a breach of a duty of care to take precautions against the risk of injuries occurring due to a condition of the premises that the home owners knew or ought to have known was a foreseeable risk of injury.
The appellant home owners purchased a property after obtaining a pre-purchase report in 2002. The pre-purchase report did not identify the veranda or balustrade as an "Issue" or Safety Concern" however the report indicated that a number of design and maintenance problems with the balcony and balustrades existed. The report advised organising an inspection by an engineer and repairing or replacing some parts. The respondent, a guest of the home owners, suffered chest and spine injuries as a result of a glass panel in the balustrade giving way, and succeeded at first instance in the NSW District Court. After the incident the balustrade was replaced.
The home owners appealed the decision arguing that the trial judge erred in finding that the duty of care was breached as the posts of the structure had been repainted by a skilled painter and also inspected by a fencing contractor prior to the accident. Neither of these skilled workers had identified or notified the home owners of any damage to the balustrade. This evidence was rejected by the trial judge on credibility grounds. On appeal it was held that it was not open to the trial judge to dismiss evidence on grounds that were not raised by the parties.
The Court of Appeal had difficulty with the trial judge's formulation of the duty of care, as it defined the duty of care by reference to breach of duty rather than standard of care. At first instance the duty was stated to require the home owners to take precautions against the risk of injuries occurring due to a condition of the premises they knew, or ought to have known, was a foreseeable risk of injury. The trial judge did not consider the duty in respect of the entire pre-purchase report but rather directed his focus towards only the balustrade. On appeal, Hoeben JA summarised the appropriate duty of care owed by emphasising that "the duty of care should be at a high level of generality with amplification being by way of a statement of its content or scope".
The decision of the trial judge was overturned and the homeowners were found not to be liable. The Court of Appeal held that a prospective approach should be taken to the duty of care owed, by looking at the position of the appellants as purchasers who obtained a relevant pre-purchase report. In adopting this approach it was held that the home owners did not owe a duty to the respondent as it was unreasonable to expect them to refuse entry into their home until every recommendation in the report, which might foreseeably cause injury, had been complied with. The non-urgent response of the home owners to take action to repair the balustrade was reasonable as the foreseeability and probability of harm was minimal.
In the media
Strong new quality standards for solar
An independent testing program is being introduced for solar panels and inverters to ensure that the actual performance of products being sold in Australia meets marketing claims. Products that are not up to standard will be removed from the CEC's list of approved products (11 March 2016)
Strong new quality standards for solar products
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Australian Bureau of Statistics
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Practice and courts
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01 March 2016 - Seeking your views on proposed changes to the Register of solar water heater application processRET
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ABCB NCC Seminars 2016
The national seminars, running in February and March 2016 are presented by the ABCB and Standards Australia. These seminars will be held in each Australian capital city and will provide valuable information to building and plumbing practitioners on the changes included in the NCC 2016, which comes into effect on 1 May 2016. Visit the ABCB website.
Announcements, Draft Policies and Plans released 2015
BPB: Announcement of regulations applying to the sale of
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NSW: Summary of updated Codes and Guidelines released 1
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Summary of updated Codes and Guidelines released 1 March 2016
NSW OSR: Duties and First Home Owner Grant Revenue
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Duties and First Home Owner Grant Revenue Rulings
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Swift v Wearing-Smith  NSWCA 38
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Florida Kitchens Centre Pty Ltd v Keith (No 2) 
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Agdiran v Owners Corporation SP83475  NSWCATAP
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Iuliano v Commissioner for Fair Trading  NSWCATOD
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Jubian v Clark; Clark v Jubian  NSWCATAP
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Appeal by homeowner – appeal lodged out of time – application for extension of time refused – substantial delay and no prospects of success on grounds of appeal relied on
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Strata Plan 79215 v Nazero Constructions Pty Ltd 
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MSP Consulting and Building Constructions Pty Ltd v
Karkoulas  NSWCATAP 69
APPEAL – Civil and Administrative Tribunal (NSW) – home building claim – conditional stay of decision granted – stay lapsed due to failure to comply with condition – whether appeal as of right established – ground of appeal on apprehension of bias not established – whether leave to appeal under section 80(2)(b) Civil and Administrative Tribunal Act 2013 (NSW) required – whether leave pursuant to clause 12 of schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) should be granted – leave to appeal refused – appeal dismissed. More...
Kay v 3D Design & Build Pty Ltd  NSWCATAP
APPEAL – denial of procedural fairness – failure to give opportunity to respond to disputed evidence – determination of application at a directions hearing. More...
Agdiran v Owners Corporation SP83475  NSWCATAP
APPEAL - residential strata title development – claim for breaches of warranties under Home Building Act – grounds covering adequacy of reasons, procedural fairness and sufficiency of evidence – appeal dismissed
APPLICATION FOR LEAVE TO APPEAL – similar grounds – application dismissed. More...
Environmental Planning Instruments
State Environmental Planning Policy Amendment (Permissible Land Uses) 2016 (2016-127) — published LW 11 March 2016
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