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Stonewall Hotel Pty Ltd leased three-storey premises which it
ran as a restaurant and nightclub. In November 2002, the first
floor ceiling collapsed injuring a number of patrons. This was
because the screws used to secure the ceiling to the floor above
were inadequate and ultimately failed.
Six months earlier, a patron of the hotel had sent an email to
Stonewall and the local council expressing concerns about the
structural integrity of the second floor of the hotel. Harper had
observed the floor moving under the load of approximately 200
people dancing and jumping on the third level. He thought it may
collapse.
The council required Stonewall to obtain a certificate from a
structural engineer confirming that the premises were structurally
sound and capable of withstanding the load of its patrons.
Stonewall therefore engaged an engineer named John Byatt, but
failed to advise Byatt of the email or the council's letter.
Byatt was also unaware that the second floor was used primarily for
dancing.
Byatt reported that the first and second floors were adequate
for their purpose but did not comment on the ceilings suspended
beneath those floors. Based on this report, the council authorised
Stonewall to continue operating as a place of public
entertainment.
The ceiling subsequently collapsed, injuring several patrons who
commenced proceedings against Stonewall for negligently failing to
rectify the ceiling. A claim was also made against Byatt on the
basis that he negligently failed to identify the defect in the
ceiling. In his defence, Byatt stated that he would have engaged a
vibration expert if he had known the floor was subject to dynamic
loadings (ie dancing).
The claims against both Stonewall and Byatt failed at first
instance. The Court found that Stonewall was negligent in its
failure to provide Byatt with all relevant information, but this
did not cause the injuries sustained as a result of the collapse.
This was based on a finding that a vibration expert was unlikely to
have identified any defect in the floor and would not have
investigated the ceilings. Further, there was no negligence by
Byatt because his retainer was limited to examining the floors (not
the ceiling affixed below).
A majority of the Court of Appeal upheld this finding on
appeal.
Turjman v Stonewall Hotel [2011] NSWCA
392
It is well established that occupiers of premises owe a duty of
care to their patrons. But where a latent defect is responsible for
an injury suffered by a patron, it may be difficult to prove that
the occupier is liable. Reasonable investigations will not always
identify the defect.
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