NSW Court of Appeal dismisses Bowling Club’s appeal against finding of negligence: Black Head Bowling Club Ltd v Harrower [2023] NSWCA 267

Introduction

In its decision regarding Black Head Bowling Club Ltd v Harrower [2023] NSWCA 267, the New South Wales Court of Appeal has dismissed an appeal by Black Head Bowling Club (the Club) against a finding that it was negligent for failing to hire an engineer to verify the stability of an ANZAC monument, which tragically fell and killed a 3-year-old.

The Court also upheld a cross-appeal brought by the deceased’s family against the stonemason who built and installed the monument (Mr John Edstein), finding that he was also negligent and was liable to the same extent as the Club.

Background

On 26 November 2016, a 3-year-old girl was killed when an ANZAC memorial headstone located in the grounds of the Club became dislodged and fell on her. The primary cause of the collapse was that the headstone had initially been poorly constructed back in 1997.

The deceased’s family claimed damages against the Club, the stonemason Mr Edstein and CGU, the insurer of Mr Edstein’s company. The Club cross-claimed against Mr Edstein and CGU.

Primary Decision

The primary judge found that the Club had been negligent for failing to take two reasonable precautions:

1. Hiring an engineer to assess and certify the installation process for the headstone; and
2. Conducting a ‘push test’, both immediately after the headstone’s installation and some 10 years later, which would have revealed the headstone’s instability.

As such, the Club was held liable. Whilst Mr Edstein was found to be negligent, the judge determined that his liability did not extend to the harm caused. The CGU policy did not cover the liability.

The Club appealed this decision, whilst the deceased’s family cross-appealed the judgement in favour of Mr Edstein in an attempt to also hold him liable.

Principles

Liability of the Club (the appeal)

From the outset, the Court highlighted the long-standing principle that an occupier of a commercial premises has a duty to take reasonable care for the safety of persons invited on to the premises.

Turning to the liability of the Club, the Court framed the issue as a question of whether the Club breached the duty of care that it owed to Club members and members of the public attending the premises, by failing to take particular precautions in response to the identified risk of harm.

In answering this, the Court looked to sections 5B and 5D of the Civil Liability Act 2002 (the Act).

Hiring an Engineer

Regarding the first precaution, the Court turned to section 5B(1) of the Act. In particular, the court examined section 5B(1)(c) and asked the critical question of whether a reasonable person in the Club’s position would have taken the precaution against the identified risk of harm – that being retaining an engineer at the outset to certify the stability of the proposed method of installation of the headstone.

In determining this, the Court considered section 5B(2) and noted several circumstances of the case, including:

• The consumers at the Club included parents and children, with children not being permitted to enter the actual Club building, instead being confined to the grounds where the monument was located;
• The likely seriousness of the harm if the identified risk transpired was severe – if the monument was unstable and fell on a child, then serious physical and mental injury, even death, were highly likely;
• Mr Partridge, who dealt with the local council on behalf of the Club, knew that to obtain the council’s consent, it required engineering drawings and other documents demonstrating the stability of the monument to be produced. Instead, Mr Partridge actively took steps to successfully have this requirement removed; and
• The burden of taking this precaution to avoid the risk of harm was small, requiring only a minor financial cost to the Club.

The Court found that if the Club had had engaged an engineer, the defect in the construction of the monument would have been discovered.  Causation pursuant to section 5D was established.

The Push Test

In considering whether the ‘push test’ was a precaution that a reasonable person would have taken in the circumstances, the Court pointed to evidence concerning the informality and uncertainty of the test.  The Court noted that a reasonable person in the Club’s position would understand that such a test, whether conducted immediately after installation or 10 years later, would not necessarily reveal defects in the construction of the monument.

This was because there was no evidence that pushing the monument would have been more likely than not to reveal the defect. In addition, the Club was not put on notice by any observable sign that the monument was structurally flawed.

Liability of the stonemason (the cross-appeal)

The Court noted that there was no reason why the culpability of the harm caused should not have also been imposed on Mr Edstein, because his acts were a significant cause of the damage. The Court agreed with the Club’s submissions that Mr Edstein had not warned the Club of the deficiencies in his method of construction nor the consequences that might flow.

The Court also referred to the decision in Voli v Inglewood Shire Council (1963) 110 CLR 74, which shared similar facts, and noted that “a designer and installer of a structure is liable for injuries sustained by persons as a result of defects in its design and construction”.

In that case, the High Court held that the architect who designed a hall and stage, as well as the council that employed the architect, were both negligent and owed a duty of care which was breached in the circumstances.  The council and the architect were ordered to bear the damages equally.

Decision

Regarding the Club’s appeal, the Court upheld the finding of the primary judge that the Club had a duty in relation to the first precaution, to engage an engineer to ensure the method of installation of the monument was adequate, and as such, the Club remained liable.

However, in respect of the second precaution, the Court held that the primary judge’s finding of a duty to perform a ‘push test’ was erroneous, because it was not a reasonable precaution.

As to the cross-appeal, the Court found there was no reason why the culpability of the harm caused should not have also been imposed on Mr Edstein. As such, the sum of damages payable to the deceased’s family were apportioned 50% to the Club and 50% to Mr Edstein.

Why this case is important

The New South Wales Court of Appeal’s 9 November 2023 decision in Black Head Bowling Club Ltd v Harrower [2023] NSWCA 267 highlights the importance of venues taking adequate precautions to ensure the safety of their premises and not solely relying on the assumed expertise of a contracted party, particularly in circumstances where that venue is responsible for inviting consumers to it.

The decision also emphasises that whilst the duties of care owed by venues and other parties (in this case, stonemasons) differ, both can be held to be negligent and more importantly, equally liable.

If you have a query relating to any of the information in this case note, or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with Peter Miller, Principal and leader of the McCabes Insurance Division.