Introducing the Facts
On 26 November 2016, a 3 year old girl was killed when an ANZAC memorial headstone erected in the grounds of the Blackhead Bowling Club (the Club) became dislodged from its base and fell on her. At the time a 10 year old boy was riding the monument as if it were a horse. The underlying cause of the collapse was that in 1997 the monument had been poorly constructed by John Edstein (Edstein), a qualified stonemason.
Seven family members of the deceased claimed damages (for nervous shock) against the Club, Edstein and CGU, the insurer of Mr Edstein's company. The Club cross claimed against Edstein and CGU. The matters involving CGU were resolved and the proceedings against it were discontinued.
Damages were agreed.
The Trial Judge found the Club was wholly liable. His Honour found that the reasonable precautions which the Club negligently failed to take were to:
- Retain an engineer to assess and certify the stability and integrity of the proposed method of installation of the monument (the Certification Precaution); and
- 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).
The Trial Judge found that Edstein was negligent but that the scope of his liability ought not extend to the harm caused and that the CGU Policy did not cover the liability.
The Club appealed. The Plaintiffs filed a cross-appeal in relation to the judgment in favour of Edstein. Various Notices of Contention were also filed.
On appeal, Justices Payne and Simpson (with Adamson JA in dissent finding that the Club was not negligent and accordingly not liable to the Plaintiffs and Edstein was wholly liable) found as follows:
The Certification Precaution
The Club had a duty to engage an engineer to assess and certify the stability and integrity of the proposed method of installation. The Club breached its duty of care in 1997 to engage an engineer for that purpose and the findings of the Trial Judge in that aspect were correct.
The Push Test Precaution
The push test was not a reasonable precaution the Club should take at the outset of construction or after 10 years as there was no evidence that pushing the monument would have been more likely than not to reveal the defect. The Club was not put on notice by any observable sign that the monument was structurally unsound. The exercise of reasonable care by the Club did not require the application of the push test.
As such, the Trial Judge's finding that a duty to perform a push test was owed was erroneous and was based on an erroneous application of the effect of the evidence of the Plaintiffs' expert witness.
Edstein, as designer and installer of the monument, is liable for injury sustained by persons as a result of defects in its design or construction. Edstein was a qualified and experienced stonemason who should be found liable because the monument, if constructed property, could be expected to remain in place for many years and last without maintenance for over a century.
The Trial Judge's finding of scope of liability was erroneous and there was no reason (including Edstein's insurance status or because the Club was found liable) why responsibility for the harm should not have been imposed on Edstein as a negligent party.
Contribution between Club and Edstein
Edstein's culpability is equivalent to the culpability of the Club. Edstein did not warn the Club of the dangers posed by the deficiencies in his method of construction of the monument. At the same time the Club as owner of the land and responsible for inviting members of the public, including children, onto its premises, did not take the reasonable precaution of obtaining engineering drawings, which would have identified the structural issues.
Liability should be apportioned equally, with 50% to Edstein and 50% to the Club.
The effect of the decision is that the Club remains liable to the Plaintiffs but Edstein is now also liable to the Plaintiffs for 50% of the agreed damages.
The Court considered it important in confirming the Club's breach of duty that there was no evidence at the trial that the Club took any step to seek or obtain assurance about the stability of the monument. As such, reasonable care required the precaution that the Club obtain engineering drawings.
The Court confirmed that while experts may give evidence, within their relevant field of expertise, as to whether a reasonable person in the position of the Club would have taken the identified precaution against a risk of harm, their opinion was irrelevant. Section 5B(1) (c ) of the CLA requires an objective determination.
The Court confirmed the long established principle that whether a party is insured or not is irrelevant to the determination of the imposition of liability on the party. Similarly, it is erroneous to find that because one defendant is liable, that liability should not be imposed on another party.
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