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Case Summary – Black Head Bowling Club Ltd v Harrower [2023] NSWCA 267

Published on October 1, 2024 by Alexandra LongbottomAlexandra Longbottom

In a recent decision by the New South Wales Court of Appeal, in a 2 to 1 majority, a stonemason was found equally liable with Blackhead Bowling Club (the Club) for the death of a 3 year old girl caused when a memorial headstone fell on her. The matter involved a claim for damages for nervous shock brought by seven family members of the girl following her death while playing near an ANZAC memorial headstone within the grounds of the Club.

Background

On 26 November 2016, the deceased was playing near the headstone that weighed 400 kg, when it fell on her because it had dislodged from its base. At the time a boy aged 10 years was riding the headstone like a horse. The headstone was erected in 1997. There was no dispute that the headstone was insecurely fixed to the base and poorly constructed by qualified stonemason, John Edstein (Edstein).

Proceedings were commenced in the Supreme Court of NSW against the Club, Edstein and CGU, the insurer of Edstein’s company. The Club cross claimed against Edstein and CGU.

Decision in the First Instance

At first instance, his Honour, Judge Curtis, found that the Club was liable in negligence on two alternative bases, in that it failed to:

1. Engage an engineer to assess and certify the stability and integrity of the proposed method of installation of the headstone (the certification precaution); and
2. Perform a push test immediately after construction and again 10 years later which would have revealed the instability of the headstone (the push test precaution).

His Honour found in favour of the Plaintiffs against the Club and Damages were agreed.

Regarding Edstein, his Honour found that the stonemason was prima facie negligent under sections 5B and 5C of the Civil Liability Act 2002 (NSW) (CLA), however, the scope of liability ought not extend to the harm caused under section 5D. He therefore ordered Judgment in favour of Edstein regarding the Plaintiffs’ claim and the Club’s Cross-Claim. His Honour found that CGU’s policy did not extend to cover Edstein’s liability.

Issues on appeal

The Club appealed the Judgment entered against it and the costs order.

The Plaintiffs filed a Cross-Appeal in respect of the Judgment in favour of Edstein to hold him liable as well. The matters related to CGU were resolved and the proceedings against it were discontinued.

Decision on appeal

Payne JA, Simpson AJA and Adamson JA heard the Appeal.

Their Honours, Payne and Simpson (with her Honour, Judge Adamson, in dissent) dismissed the Club’s appeal (in respect of the grounds of appeal as against the Club) and held that the primary judge’s findings regarding the Club’s duty of care in respect of the certification precaution were correct. The Court (Payne JA and Simpson AJA) held that the Club had a duty of care to engage an engineer to certify the method of installation of the headstone in the first instance.

Adamson JA, in dissent, found that the Club was not negligent and accordingly not liable to the Plaintiffs. Her Honour held that a reasonable person in the Club’s position would not have taken the precaution to certify the installation and relied at the time on the expertise of Edstein.

The Court held that the push test was not a reasonable precaution that the Club would have been expected to take (Payne JA, Adamson JA and Simpson AJA), and the primary judge’s findings in respect of a duty of care regarding this issue, in addition to his reliance on the Plaintiffs’ expert evidence supporting this finding (Adamson JA), were in error. There was no evidence of a defect in the headstone which would have alerted the Club to any defect in the structure nor was there any requirement for it to undertake the push test prior to the accident.

In respect of the Club’s Appeal and the Plaintiffs’ Cross-Appeal regarding Edstein’s liability, their Honours unanimously held that the primary judge’s finding in respect of the scope of liability was erroneous. The responsibility for harm should have been extended to Edstein, as the designer and installer of the structure. The fact Edstein’s insurance policy did not respond to the claim and that the Plaintiffs were successful against the Club was irrelevant. Payne JA and Simpson AJA by majority, held that Edstein’s culpability as a tortfeasor was equivalent to the Club’s at 50/50.

By majority, the Court ordered as follows:

i. Judgment was entered in favour of the Plaintiffs against the second defendant, Mr Edstein.

ii. The Club and Edstein contribute 50% each of the agreed sum of damages payable to the Plaintiffs.

The decision confirms precedent that the designer and installer of a structure is liable for injuries sustained by a person because of defect in its design or construction.

The decision also highlights the duty of care to ensure that a structure is free from defects and does not pose a risk of harm to a person, extends to both the designer as well as the body with control of the structure, for example the Club in this instance, being the owner of the property. The case finally highlights that whether a party is insured or not is not relevant to determining whether responsibility for harm should be imposed on the negligent party. You can read the full Judgment here.

Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you.