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

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Black Head Bowling Club Ltd v Harrower [2023] NSWCA 267
Hearing dates: 10–11 October 2023
Decision date: 09 November 2023
Before: Payne JA and Simpson AJA at [1]; Adamson JA at [60]
Decision:
In respect of the appeal by the Club:
(1)   Allow the appeal by the Club on ground 6 only.
(2)   Otherwise dismiss the appeal.
(3)   Order that Mr Edstein pay the Club’s costs of ground 6 of the appeal.
(4)   Order that the Club pay the costs of the first to seventh respondents to the appeal (the plaintiffs below), other than the costs of grounds 4 and 6.
(5)   Each party bear their own costs of ground 4 of the appeal.
In respect of the cross-appeal by the first to seventh respondents (the plaintiffs below):
(6)   Allow the cross-appeal by the first to seventh respondents (the plaintiffs below).
(7)   Dismiss the “Notice of Contention – Cross Appeal” filed by Mr Edstein on 21 March 2023.
(8)   Order that Mr Edstein pay the first to seventh respondents’ (the plaintiffs below) costs of the cross-appeal.
In both cases:
(9)   Set aside orders 2 and 3 made by the primary judge on 27 October 2022 and order 2 made by the primary judge on 3 February 2023 of and in lieu thereof make the following orders:
(a)   Judgment be entered in favour of the plaintiffs against the second defendant, Mr Edstein.
(b)   Mr Edstein to pay the plaintiffs damages in the agreed amount.
(c) Pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) order that Black Head Bowling Club Ltd contribute 50% and Mr John Thomas Edstein contribute 50% to the agreed sum of damages payable to the plaintiffs.

Catchwords:
APPEALS — TORTS — Negligence — child killed by memorial headstone falling on her at bowling club — monument poorly constructed — whether club liable in negligence — whether club owed duty to undertake reasonable enquiries to ensure fixation of monument was sound — whether club failed to test stability of structure by pushing against it — whether scope of liability should extend to stonemason who constructed monument
APPEAL — PRACTICE AND PROCEDURE — allegations admitted in defences by eighth respondent/cross-defendant — allegations purportedly withdrawn in further defences — application for leave to withdraw the admissions —whether primary judge erred in refusing to allow admissions to be withdrawn or to admit transcript of the motion

Legislation Cited:
Civil Liability Act 2002 (NSW), ss 5B, 5D
Environmental Planning and Assessment Act 1979 (NSW), s 102
Evidence Act 1995 (NSW), ss 42, 69, 79, 128, 183
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9
Local Government (Approvals) Regulation 1993 (NSW), cll 12, 31
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7
Bitumen and Oil Refineries (Australia) Ltd…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWCA 267
Decision Date: 09 November 2023

CaseChat Overview and Summary

The appeal concerned a tragic incident where a child was killed by a memorial headstone that fell on her at the Black Head Bowling Club. The Black Head Bowling Club Ltd appealed a decision that found it liable in negligence. The court was required to determine whether the Club owed a duty of care to ensure the monument's fixation was sound, whether it breached that duty by failing to test its stability, and whether its liability should extend to the stonemason who constructed the monument. Additionally, the court considered whether the primary judge erred in refusing to allow admissions made in defences to be withdrawn.

The court allowed the Club's appeal on one specific ground, but otherwise dismissed the appeal. In a cross-appeal by the plaintiffs, the court allowed it. The court set aside previous orders and entered judgment in favour of the plaintiffs against Mr Edstein, the stonemason, for agreed damages. Crucially, the court ordered that both the Black Head Bowling Club Ltd and Mr Edstein were to contribute 50% each to the agreed sum of damages payable to the plaintiffs, pursuant to section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).

Orders

Orders of the court

In respect of the appeal by the Club:

(1) Allow the appeal by the Club on ground 6 only.

(2) Otherwise dismiss the appeal.

(3) Order that Mr Edstein pay the Club’s costs of ground 6 of the appeal.

(4) Order that the Club pay the costs of the first to seventh respondents to the appeal (the plaintiffs below), other than the costs of grounds 4 and 6.

(5) Each party bear their own costs of ground 4 of the appeal.

In respect of the cross-appeal by the first to seventh respondents (the plaintiffs below):

(6) Allow the cross-appeal by the first to seventh respondents (the plaintiffs below).

(7) Dismiss the “Notice of Contention – Cross Appeal” filed by Mr Edstein on 21 March 2023.

(8) Order that Mr Edstein pay the first to seventh respondents’ (the plaintiffs below) costs of the cross-appeal.

In both cases:

(9) Set aside orders 2 and 3 made by the primary judge on 27 October 2022 and order 2 made by the primary judge on 3 February 2023 of and in lieu thereof make the following orders:

(a) Judgment be entered in favour of the plaintiffs against the second defendant, Mr Edstein.

(b) Mr Edstein to pay the plaintiffs damages in the agreed amount.

(c) Pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) order that Black Head Bowling Club Ltd contribute 50% and Mr John Thomas Edstein contribute 50% to the agreed sum of damages payable to the plaintiffs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Black Head Bowling Club Ltd v Harrower [2023] NSWCA 267
Hearing dates:	10–11 October 2023
Decision date:	09 November 2023
Before:	Payne JA and Simpson AJA at [1]; Adamson JA at [60]
Decision:	In respect of the appeal by the Club: (1) Allow the appeal by the Club on ground 6 only. (2) Otherwise dismiss the appeal. (3) Order that Mr Edstein pay the Club’s costs of ground 6 of the appeal. (4) Order that the Club pay the costs of the first to seventh respondents to the appeal (the plaintiffs below), other than the costs of grounds 4 and 6. (5) Each party bear their own costs of ground 4 of the appeal. In respect of the cross-appeal by the first to seventh respondents (the plaintiffs below): (6) Allow the cross-appeal by the first to seventh respondents (the plaintiffs below). (7) Dismiss the “Notice of Contention – Cross Appeal” filed by Mr Edstein on 21 March 2023. (8) Order that Mr Edstein pay the first to seventh respondents’ (the plaintiffs below) costs of the cross-appeal. In both cases: (9) Set aside orders 2 and 3 made by the primary judge on 27 October 2022 and order 2 made by the primary judge on 3 February 2023 of and in lieu thereof make the following orders: (a) Judgment be entered in favour of the plaintiffs against the second defendant, Mr Edstein. (b) Mr Edstein to pay the plaintiffs damages in the agreed amount. (c) Pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) order that Black Head Bowling Club Ltd contribute 50% and Mr John Thomas Edstein contribute 50% to the agreed sum of damages payable to the plaintiffs.
Catchwords:	APPEALS — TORTS — Negligence — child killed by memorial headstone falling on her at bowling club — monument poorly constructed — whether club liable in negligence — whether club owed duty to undertake reasonable enquiries to ensure fixation of monument was sound — whether club failed to test stability of structure by pushing against it — whether scope of liability should extend to stonemason who constructed monument APPEAL — PRACTICE AND PROCEDURE — allegations admitted in defences by eighth respondent/cross-defendant — allegations purportedly withdrawn in further defences — application for leave to withdraw the admissions —whether primary judge erred in refusing to allow admissions to be withdrawn or to admit transcript of the motion
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5B, 5D Environmental Planning and Assessment Act 1979 (NSW), s 102 Evidence Act 1995 (NSW), ss 42, 69, 79, 128, 183 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9 Local Government (Approvals) Regulation 1993 (NSW), cll 12, 31 Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited:	Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7 Bitumen and Oil Refineries (Australia) Ltd…