A momentous failing: extending the parameters of the scope of duty of care

07 December 2023

Warning: This article discussion the death of a child which may be upsetting for some readers. Reader discretion is advised.

In a recent decision by the Court of Appeal, by a 2:1 majority, a stonemason was found to be equally liable with the Blackhead Bowling Club for the fatality of a 3-year-old girl caused by a falling memorial headstone.

The background

The case involved a claim for damages, in respect of nervous shock, by seven members of the family (the Plaintiffs) of a 3-year-old girl (the deceased) who was killed while playing near an ANZAC memorial headstone (monument) erected in the grounds of the Blackhead Bowling Club (the Club).

Specifically, on 26 November 2016, the deceased was playing near the 400 kg headstone when it 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 headstone had been erected in 1997. There was no dispute that the monument was insecurely fixed to the base and poorly constructed by John Edstein (Edstein), a qualified stonemason.

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

The decision at trial

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 monument (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. Damages were agreed.

In respect of Edstein, his Honour found that the stonemason was prima facie negligent pursuant to sections 5B and 5C of the Civil Liability Act 2002 (NSW) (CLA), however, the scope of liability ought not extend to the harm caused pursuant to section 5D of the CLA. Therefore, he ordered judgment in favour of Edstein on the Plaintiffs’ claim and the Club’s Cross-Claim. His Honour otherwise found that CGU’s policy did not extend to cover Edstein’s liability.

The 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 also hold him liable. All matters involving CGU were resolved and the proceedings against it, in respect of the Plaintiff’s Claim and its Cross-Claim, were discontinued.

The decision on appeal

The Appeal was heard by Payne JA, Simpson AJA and Adamson JA.

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 monument at 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 on the expertise of Edstein at the time.

The Court otherwise held that the push test was not a reasonable precaution that the Club would have been expected to undertake (Payne JA, Adamson JA and Simpson AJA), and the primary judge’s findings in respect of a duty of care on this issue, in addition to his reliance on the Plaintiffs’ expert evidence in support of this finding (Adamson JA), were in error. There was no evidence of a defect in the monument or 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.

On the Club’s Appeal and the Plaintiffs’ Cross-Appeal in respect of 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 that 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 [54]. In line with her findings regarding the Club, discussed above, Adamson JA did not comment on apportionment.

By majority, the key orders of the Court were as follows:

  • Judgment was entered in favour of the Plaintiffs against the second defendant, Mr Edstein.
  • The Club and Edstein both contribute 50% of the agreed sum of damages payable to the Plaintiffs.

Implications for you

The case highlights a number of key issues:

  1. The decision upholds precedent that a designer and installer of a structure is liable for injuries sustained by persons resulting from defects in its design or construction. Such precedent being predicated on the expertise and competency of the designer/installer.
  2. The duty of care to ensure that a structure is free from defects and does not pose a risk of harm to persons, extends to both the designer as well as the entity with oversight of the structure, such as the Club in this case, being the property owner.
  3. Whether a party is insured or not is irrelevant to determining whether responsibility for harm should be imposed on the negligent party.
  4. Reliance on written expert evidence forms one aspect of the Court’s determination of liability, however, such evidence needs to be objectively considered in light of the applicable legislation, in this case being the CLA, and evidence adduced at trial.

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

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