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Negligence – liability of installer – causation …

… Duty of club to undertake enquiries of safety of structure – scope of liability

The Plaintiffs were family members of a three-year-old girl who died after a memorial headstone in the grounds of the Black Head Bowling Club became dislodged from its base and fell on her.

The incident occurred on 26 November 2016 when a 10-year-old boy was riding the monument like a horse. The cause of the collapse was the monument had been poorly constructed in 1997.

The deceased’s family members claimed damages against the club and the stonemason who had constructed it as well as the insurer of the stonemason’s company.

At first instance, the primary judge found the club was liable in negligence because it failed to retain an engineer to assess and certify the stability of the integrity of the proposed method of installation and to later perform a “push test” both immediately after construction and 10 years later – something which, it was found, would have revealed the instability.

The primary judge found the stonemason was negligent but the scope of liability ought not extend to the harm caused and the CGU policy did not cover the liability.

The club appealed and the Plaintiffs cross-appealed the judgment in favour of the stonemason.  Before hearing of the appeal, the matters involving the insurer of the stonemason were resolved and those proceedings were discontinued.

Decision

Club found to be liable to the Plaintiffs but not on the same grounds established by the trial judge (Payne JA and Simpson AJA; Adamson JA dissenting). 

Delivered on 9 November 2023.

Ratio

The primary judge’s finding the club ought to have engaged an engineer to assess and certify the stability of the structure was correct.

The “push test”, however, was not a reasonable precaution that the club ought to have taken either at construction or 10 years later.  There was no evidence pushing the monument would have been more likely than not to have revealed the defect.  The club was not on notice by any observable sign that the monument was structurally unsound. This was a finding of the trial judge made on an erroneous application of the evidence.

The primary judge’s finding that the scope of liability did not extend to the harm caused by the stonemason was incorrect.  A designer and installer of a structure is liable for injuries sustained by persons as a result of defects in design or construction. 

Here, the stonemason ought to be liable because the monument, if properly constructed, should have been expected to have been structurally sound for many years and without any maintenance for over a century.

In dissent, Adamson JA thought that the pre-conditions of liability in sec 5B of the Civil Liability Act 2002 had not been fulfilled in respect of the club. 

The risk of harm from the latent instability of the monument was just not foreseeable.  The risk was not a significant one because if the monument had been properly constructed, it would have retained its structural integrity for at least as long as there was no visible defect.

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