December 5, 2023

By what means can those injured as a result of negligent construction more than 25 years ago hold the premises occupier liable and recover compensation from the people connected to the project?

Black Head Bowling Club resolved to erect an ANZAC memorial headstone on its picturesque grounds above Pebbly Beach on the NSW Central Coast in 1997.

It engaged stonemason John Edstein to install the 400kg sandstone edifice on a narrow 150mm wide base in the absence of engineering design or supervision.

In November 2016, two children were playing near the monument, 3-year-old Indy Henderson and a 10-year-old boy.

Indy’s grandmother had booked out the beer garden of the club for her 50th birthday and there were many children in attendance.

The boy climbed the monument and began riding it “as if it were a horse”. It became dislodged from the base and fell on top of Indy, fatally crushing her.

It was discovered that the dowels joining the headstone to the base were too short, the holes drilled into the base were too large to tightly fix the dowels and no cement had been used to seal the bottom of the headstone to the base.

Many present sued the club and stonemason Edstein for damages for failing to construct and install the edifice safely and to a proper standard.

The club cross-claimed against Edstein and his insurer CGU who denied cover because the loss occurred after his policy had expired.

The primary judge found that the club was liable in negligence and ordered judgment against it in favour of eight family members for the psychological injuries they sustained as a result of being present at the catastrophic scene.

Specifically, the club had – he ruled – failed to take adequate measures, eg by retaining an engineer, to assess the design and certify the stability and integrity of the monument’s construction.

It was also negligent in the judge’s view for having failed to assess the stability of the headstone periodically – at least every 10 years – by way of a “push test”.

Edstein – was also held to have been negligent.  But by viewing the circumstances “exceptional”  – in part by reason that his CGU insurance policy did not cover such a liability – the judge had recourse to CLA s 5D(4) to limit his “scope of liability” and rule that his negligent workmanship “had not caused the particular harm” that occurred.

The club appealed against the finding of liability against it and the family cross-appealed against Edstein’s exoneration.

Justices Anthony Payne, Christine Adamson and Carolyn Simpson agreed – in relation to the stonemason’s liability – that the “normative questions” posed by CLA s 5D(1) [the analogue to CLA Qld s 11 (1)] should have been answered affirmatively by reference to established precedent.

The causation issues in this instance were not “exceptional” in their view and thus a decision concerning the “appropriateness” of the stonemason’s scope of liability extending to cover the tragic accident under CLA s 5D(4) – and whether that scope should be retracted – was not called on to be addressed.

In any event, they agreed neither Edstein’s insurance status nor the fact that another defendant (the club) was held liable were valid reasons for restricting the scope of liability of a party found to have been at fault under prevailing legal principles.

The CLA causation exculpation provision was thus not engaged and the stonemason was held liable for having negligently constructed the monument.

Turning to the club’s appeal against its liability, all three appeal judges agreed the club owed a duty to take reasonable care to prevent foreseeable harm to those who it invited on to its premises, including families, and children.

Had though the club breached that duty by failing to take precautions in response to the identified risk of harm?

The court addressed CLA s 5B  [the analogue to CLA Qld s 9 (1)] which sets out the conditions for deciding whether the failure to take precautions against such a risk constitutes negligence.

The risk that the headstone may detach from its base – they ruled – was foreseeable and there was the requisite “not insignificant” risk that it might cause injury to children in the vicinity, given its height and weight in the event of a failure to adequately affix it to the base.

Justice Adamson diverged from the views of her sibling justices in deciding whether or not a reasonable club in Black Head’s position would have taken the pleaded precautions. In her view the hypothetical club would have done no more than what Black Head had actually done and this it should be thereby exculpating it pursuant to CLA s 5B(1) (c).

The majority found to the contrary but only after intricate analysis of the circumstances.

That expert testimony from stonemasons Jasper Swann and Robert Steedman was that engineering involvement in such work was not usual practice did not – they ruled – bind the court because the question of what the reasonable hypothetical club would have done, was subjective.

They observed the for-profit club consented to the monument’s erection on its premises and had successfully petitioned the local council to remove a condition of its consent to the works that an engineer was to supervise the project.

It ought to have known, they said, that the 970mm high x 1150mm long x 150mm thick monument resting on its thin edge on a narrow base was potentially unstable unless firmly fixed in place. It was also foreseeable that children would be attracted to and climb on it the “effect of which could be – and was – catastrophic”.

There was – they concluded – no “social utility” in the monument’s erection to justify putting patrons at the club to an otherwise unacceptable risk. And the “burden” of taking the precaution of engaging an engineer – costing around $300 – to avoid the risk of harm, was small.

In all the circumstances it was their view that the retention of an apparently qualified stonemason was insufficient to discharge the club’s obligation to have taken the precaution of obtaining engineering drawings to discharge its duty of care.

The club’s liability for the accident was upheld by the majority and liability was apportioned equally between it and the stonemason.

Black Head Bowling Club Ltd v Harrower [2023] NSWCA 267 Payne JA Simpson AJA  Adamson JA 9 November 2023 Read case

Categories: Entertainment venue injury

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