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AND PROCEDURE — allegations admitted in defences by eighth respondent/cross-defendant — allegations purportedly withdrawn in further defences — application for leave to withdraw the admissions —whether primary judge erred in refusing to allow admissions to be withdrawn or to admit transcript of the motion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 v Commissioner for Government Transport (1955) 92 CLR 200; [1955] HCA

Coffs Harbour City Council v Polglase [2020] NSWCA 265

Commercial Union Assurance Co of Australia Ltd vFerrcomPty Ltd (1991) 22 NSWLR 389

Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70

Elphick v Westfield Shopping Centre Management Company Pty Limited [2011] NSWCA 356; (2011) 216 IR 41

House v The King (1936) 55 CLR 499; [1936] HCA 40

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36

Macquarie Pathology Services Pty Limited v Sullivan (Court of Appeal (NSW), 28 March 1995, unrep)

Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529

Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320

Voli v Inglewood Shire Council (1963) 110 CLR 74; [1963] HCA 15

Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19

Texts Cited:

Australia, Department of the Treasury, Review of the Law of Negligence – Final Report, (September 2002)

Breach of Duty: A Disappearing Element of the Action in Negligence?” (2017) 76(3) Cambridge Law Journal 480

Category:

Principal judgment

Parties:

Black Head Bowling Club Ltd (Appellant)
Tamica Harrower (First Respondent/First Cross-Appellant)
Robert Bishop (Second Respondent/Second Cross-Appellant)
Bradley Bishop (Third Respondent/Third Cross-Appellant)
Junior Henderson by his tutor Tamica Harrower (Fourth Respondent/Fourth Cross-Appellant)
Keira Henderson by her tutor Tamica Harrower (Fifth Respondent/Fifth Cross-Appellant)
Shiralee Walker (Sixth Respondent/Sixth Cross-Appellant)
Nathan Walker (Seventh Respondent/Seventh Cross-Appellant)
John Thomas Edstein (Eighth Respondent/Cross Respondent)
Insurance Australia Limited t/as CGU Insurance Limited (ACN 000 016 722) (Ninth Respondent)

Representation:

Counsel:
D Lloyd SC / C Coventry (Appellant)
J M Morris SC / M A Gerace SC / A T Green (First to Seventh Respondents/First to Seventh Cross-Appellants)
P A Collins / J Chen (Eighth Respondent/Cross Respondent)

Solicitors:
McInnes Wilson Lawyers (Appellant)
Marsdens Law Group (First to Seventh Respondents/First to Seventh Cross-Appellants)
LMI Legal (Eighth Respondent/Cross Respondent)

File Number(s):

2022/328002

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

27 October 2022; 3 February 2023

Before:

Curtis ADCJ

File Number(s):

2019/368016

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 26 November 2016, a 3-year-old girl was killed when an ANZAC memorial headstone in the grounds of the Black Head Bowling 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 the monument had been poorly constructed in 1997.

The deceased’s family members (the plaintiffs) claimed damages against the Club, John Edstein, the stonemason who had constructed and installed the monument, and CGU, the insurer of the stonemason’s company. The Club cross-claimed against Mr Edstein and CGU.

The primary judge found that the Club was liable in negligence and ordered judgment against it in favour of the plaintiffs. 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 to 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 that Mr 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 was ordered to pay the costs of the plaintiff, Mr Edstein and CGU.

The Club appealed against the judgment entered against it and the costs order. The plaintiffs challenged, by cross-appeal, the judgment in favour of Mr Edstein in order to also hold him liable. All matters involving CGU were resolved and the proceedings against it were discontinued.

The Court held (Payne JA and Simpson AJA, Adamson JA in dissent regarding the liability of the Club):

Liability of the Club (the appeal)

The certification precaution

1. The primary judge’s finding that the Club had a duty to engage an engineer to assess and certify the stability and integrity of the proposed method of installation should be understood as a finding that the Club breached its duty of care in 1997 to engage an engineer for the stated purpose and was correct: [40] (Payne JA and Simpson AJA).

Per Adamson JA (in dissent):

1. None of the preconditions of liability in s 5B of the Civil Liability Act 2002 (NSW) has been fulfilled in respect of the Club. The risk of harm, being the risk of injury from the latent stability of the monument, was not foreseeable in that it was not a risk of which the Club knew or ought to have known. The risk was not significant since, had the monument been properly constructed, it would have retained its structural integrity for at least as long as there was no visible defect. A reasonable person in the Club’s position would not have taken the precautions for which the plaintiffs contended: [125].

The push test precaution

1. A push test was not a reasonable precaution that 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”: [43]-[44], [46] (Payne JA and Simpson AJA).

2. The primary judge’s finding that a duty to perform a push test was owed was based on an erroneous application of the effect of the evidence of the plaintiffs’ expert witness. His Honour’s finding that conducting a push test would have avoided the harm was erroneous having regard to the terms of the evidence, the means by which it was elicited and its failure to take account of the other forces to which the monument was subjected: [115] (Adamson JA).

Liability of Mr Edstein (the cross-appeal)

1. The primary judge’s finding of scope of liability was erroneous and there was no reason (including Mr Edstein’s insurance status or because the primary judge found the Club liable) why responsibility for the harm should not have been imposed on the negligent party. A designer and installer of a structure is liable for injuries sustained by persons as a result of defects in its design or construction. Mr Edstein was a qualified and experienced stonemason who should be found liable because the monument, if constructed properly, could be expected to remain in place for many years and last without maintenance for over a century: [159] (Adamson JA, Payne JA and Simpson AJA agreeing at [2]-[4]).

Voli v Inglewood Shire Council (1963) 110 CLR 74; [1963] HCA 15, applied.

Contribution between tortfeasors

1. Mr Edstein’s culpability is equivalent to the culpability of the Club: [54] (Payne JA and Simpson AJA).

JUDGMENT

1. PAYNE JA AND SIMPSON AJA: This appeal concerns a monument, erected by a bowling club, which fell and killed a three-year-old girl playing near it. We have read the decision of Adamson JA in draft and gratefully adopt her Honour’s summary of the facts and relevant issues. For convenience, we will use defined terms as they appear in Adamson JA’s judgment.

Appeal and cross-appeal regarding Mr Edstein

2. We agree with Adamson JA that the decision of the primary judge concerning the effect of s 5D(4) of the Civil Liability Act2002 (NSW) on Mr Edstein’s liability must be set aside. We agree with her Honour that none of the matters raised by either notice of contention (which are in any event identical) should be accepted, for the reasons her Honour gives.

3. Section 5D(1)(b) of the Civil Liability Act poses a normative question that is properly answered through the application of precedent: Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [22]. In a novel case, s 5D(4) requires the court to consider, amongst other relevant things, whether or not and why responsibility for the harm should be imposed on the negligent party: Wallace v Kam at [23]. The case against Mr Edstein was not novel. As the primary judge found, he was clearly negligent. Mr Edstein’s insurance status provided no reason why responsibility for the harm should not be imposed on the negligent party. Nor did the fact that another defendant was held liable.

4. It follows that the appeal by the Club and cross-appeal by the first to seventh respondents concerning Mr Edstein must be allowed.

Appeal regarding Black Head Bowling Club Ltd

5. We have reached a different conclusion to Adamson JA about the liability of Black Head Bowling Club Ltd (the Club).

Duty of care

6. It has long been established that an occupier of commercial premises has a duty to take reasonable care for the safety of persons invited on to the premises: Voli v Inglewood Shire Council (1963) 110 CLR 74 at 96-97; [1963] HCA 15 (Windeyer J, Dixon CJ and Owen J agreeing); Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7. Voli was a case where a war memorial hall had been built and operated by Inglewood Shire Council in Texas, Queensland. The High Court concluded that the architect who designed the hall and a stage within the hall was negligent, and that as a result of that negligence the stage collapsed some years later, injuring members of a tobacco growing committee who had booked the hall from the council. There was no defect in the stage which was apparent to external observation. The council, which had employed the apparently competent architect and an apparently competent builder to construct the hall, were also found to owe a duty of care which was breached in the circumstances of that case.

7. It was common ground in this case that the Club owed a duty to take reasonable care to prevent foreseeable harm to those who it invited onto its premises, including the families of children who might be harmed while playing there. In the pleadings below, the plaintiffs (the first to seventh respondents in this Court) pleaded that the Club “owed a duty of care to Club Members and members of the public attending the premises including invitees to take reasonable care to maintain structures on the premises”. In its written submissions below, the Club admitted that “as the occupier of the Club, it owed a general duty of care to visitors to the premises to take reasonable steps to avoid foreseeable risks of injury”.

Breach of duty

8. Care must be taken separately to consider the duty of care and the alleged breach of that duty by the Club. As explained by Professor Goudkamp in his note “Breach of Duty: A Disappearing Element of the Action in Negligence?” (2017) 76(3) Cambridge Law Journal 480 at 482:

“Judges, by over-specifying the content of the duty of care element, routinely treat breach cases as though they were duty cases … Judges who proceed in this way typically utter formulae such as: ‘no duty of care was owed by the defendant in the present case to do φ because the reasonable person in the defendant’s position would not have done φ.’ However, the structure of that phrase reveals immediately that the duty of care element is not in play at all. The very fact that the court is discussing what the reasonable person in the defendant’s position would have done indicates that the dispute is actually about the breach element, that being the only element of the action in negligence that is concerned with the satisfactoriness of the defendant’s conduct.”

9. In addressing the critical issue in this case, rather than asking whether the Club was under a duty to obtain a pre-construction engineering assessment or a duty to test the stability of the structure at regular intervals, we would frame the question as being whether the Club breached the duty of care it accepts it owed to Club members and members of the public attending the premises including invitees by failing to take particular precautions in response to the identified risk of harm.

10. The question of breach and whether the Club was negligent is determined by applying s 5B of the Civil Liability Act, which provides:

5B   General principles

(1)   A person is not negligent in failing to take precautions against a risk of harm unless—

(a)   the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)   the risk was not insignificant, and

(c)   in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)   In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—

(a)   the probability that the harm would occur if care were not taken,

(b)   the likely seriousness of the harm,

(c)   the burden of taking precautions to avoid the risk of harm,

(d)   the social utility of the activity that creates the risk of harm.

As explained by Leeming JA in Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 at [106] “[e]ach paragraph within s 5B in terms presupposes a ‘risk of harm’ against which, so it is alleged, precautions should have been taken”.

11. The risk of harm identified by the primary judge in the present case was:

“17   … the risk that the headstone of the monument may detach from its base thereby causing injury to children in the vicinity.”

12. That description of the risk of harm was not challenged in this Court. Mr Lloyd SC, who appeared for the Club said:

“It's one of the rare cases where there may be not any real controversy about the identification of the risk, although the plaintiffs I think put it at a greater level of generality in their submissions in this Court. I'm not sure that in this particular case it matters.”

13. The reasonable precautions which the Club negligently failed to take were found by the primary judge at [22] and [27] to be:

1. to retain an engineer “to assess and certify the stability and integrity of the proposed method of installation” of the monument”; and

2. to perform a “simple push test immediately after construction, and again 10 years later” which would have revealed the need for “measures … to rectify” the “instability of the headstone”.

14. We will address these two precautions in turn.

The certification precaution

15. The primary judge found at [17]-[25] that the Club was negligent in failing to take this precaution against the identified risk of harm as:

1. the risk was foreseeable and the Club knew or ought to have known of the risk;

2. the risk was not insignificant; and

3. in the circumstances, a reasonable person in the Club’s position would have taken that precaution.

Relevant factual background

16. One factual matter requires some additional explanation. In these proceedings, despite the way in which the case was conducted before the primary judge, it was not disputed on appeal that that the Committee which negotiated with the Council about the erection of the monument acted as agent for the Club and the acts and state of mind of the Committee members should be treated as acts and states of mind of the Club. On 5 March 1997, the Council, after assessing the Club’s Development Application, granted Development Consent on the following three conditions:

“1 101    The development of the site being carried out generally in accordance with the drawings marked ‘D59/97 – approved’.

2 102 A building application shall be deposited in accordance with the provisions of the Local Government Act 1993 and the Local Government (Approvals) Regulation 1993. No work is to be commenced prior to the building approval being received by the applicant.

3 502   All adjustments to existing utility services made necessary by the development are to be undertaken by the developer at his/her expense.”

17. The drawings as approved by the Council were silent about the stability and integrity of the method of installation of the headstone on its base proposed by the Club. It was common ground that condition 2 of the Development Consent would at the relevant time have required the Club to obtain, for the purposes of a building application:

1. a structural engineer’s drawings or other engineering details prepared by a structural engineer: cl 31 of the Local Government (Approvals) Regulation 1993 (NSW); and

2. documents which addressed matters including the stability of the monument: cl 12(1)(b) of the Local Government (Approvals) Regulation 1993 (NSW).

18. Rather than comply with condition 2, the Club, via its agent Mr Partridge, negotiated with the Council to have the condition removed. That negotiation was recorded in a letter sent by Graham Gardner, director of planning and building at the Council, to Mr Partridge on 19 March 1997:

“Reference is made to our telephone conversation of 13 March 1997 requesting an amendment of the above mentioned consent.

You are advised that, pursuant to section 102 of the Environmental Planning and Assessment Act 1979, Development Consent No. 59/97 dated 5 March 1997 is hereby amended by deleting Condition 2.”

19. Precisely what the Club said or did to have this condition removed by the Council is not clear on the evidence. It may be, as the Club’s original plan showed a headstone of 1.150m in height and the plan accompanying the final application showed a headstone of 1m, that the drop in height led to the removal of condition 2. It is unnecessary to reach a conclusion about this issue.

20. What is clear is that, from the outset, the Club knew that a 400kg monument, 1m high apparently attached to its base by a 150mm wide edge was to be constructed on its land and that no structural engineer’s drawings would be obtained, and no documents addressing or assuring the Club about the stability of the monument would be created. On the evidence, no oral or written assurance was ever given to the Club, by anybody, that the monument when constructed would be stable and suitable to be placed in an area where members of the public, including children, had access.

Consideration

21. The first question is whether the risk of harm was foreseeable within the meaning of s 5B(1)(a) of the Civil Liability Act. At common law, the authoritative test for foreseeability of risk was identified by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 at 47: a risk is foreseeable if it is not far-fetched or fanciful. That test is to be applied when determining foreseeability under s 5B(1)(a): State of New South Wales v Mikhael [2012] NSWCA 338 at [76] per Beazley JA. The test is undemanding and largely unconnected from probabilities: Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 641E per Glass JA, South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 at [85] per Basten JA (with whom Macfarlan and Simpson JJA agreed).

22. In this case, we have concluded that it was foreseeable that the headstone might detach from its base and cause injury to any children allowed to play in the vicinity. The monument was over 1m tall, weighing 400kg, and apparently affixed to its base by a thin portion of the headstone only 150mm wide. It is readily foreseeable, in ordinary human experience, that a structure of those dimensions may detach from its base and fall. Further, from the beginning, the Club planned to and did allow access to the monument to its invited customers. Those invited customers included families with children. The Club planned to and did allow children to play on and near the monument. The primary judge’s findings that children were likely to have played on the monument at times and that it was foreseeable that they might do so were not challenged.

23. It was neither far-fetched nor fanciful, in these circumstances, that the headstone might detach and fall on a child playing near it.

24. We have further concluded that the risk of harm was not insignificant. The meaning of “not insignificant” is only slightly more onerous than the common law test that the risk of harm be real and not far-fetched or fanciful, although it is not satisfied merely by the fact that an injury occurred: Russell v Carpenter [2022] NSWCA 252 at [20] per Kirk JA (with whom Meagher and Gleeson JJA agreed). The analysis of a risk for the purposes of s 5B(1)(b) is at a lower level of generality than the analysis of foreseeability under s 5B(1)(a), and depends upon a variety of factors including obviousness, likelihood of occurrence and seriousness of consequences: Gazis at [89] per Basten JA (with whom Macfarlan and Simpson JJA agreed). Here, the risk the headstone of the monument would detach from its base thereby causing injury to children in the vicinity was real and not far-fetched or fanciful. Objectively, the risk was obvious, because of the dimensions of the monument, and while the likelihood of occurrence may have been small, the seriousness of the consequences of the risk coming to pass was grave.

25. The critical question in this case is whether a reasonable person in the Club’s position would have taken the precaution against the identified risk of harm of retaining an engineer at the outset “to assess and certify the stability and integrity of the proposed method of installation” of the monument”. The suggested precaution was sufficiently pleaded but even if it were not, we agree with Adamson JA that it was litigated at the trial.

26. The question of whether, within the meaning of s 5B(1)(c), “in the circumstances, a reasonable person in the person’s position would have taken those precautions” is a question for the Court. As Ipp JA explained in a relatively early case in this Court considering the provision in Waverley Council v Ferreira [2005] NSWCA 418:

“52 In my opinion, the probability as to whether a reasonable person would have taken precautions against a risk of harm (referred to in s 5B(2)(b)) must be considered objectively by reference to the particular circumstances of the case (and the state of mind of the defendant is not relevant to this inquiry).”

27. The opinion of a stonemason or an engineer about whether a reasonable person, in the position of the Club, would have taken this identified precaution against a risk of harm was irrelevant. Experts may give evidence, within their relevant field of expertise, which might throw light on the relevant circumstances in which the objective determination required by s 5B(1)(c) by the Court occurs. The question here, whether a reasonable person, in the position of the Club, would have taken this identified precaution against a risk of harm, however, was one that neither the stonemasons nor the engineer threw any relevant light on.

28. Two stonemasons, Mr Jasper Swann and Mr Robert Steedman, gave evidence in a conclave that the usual practice of stonemasons in erecting a monument was not to obtain assistance or verification from an engineer. So much may readily be accepted. It does not follow that, accordingly, the Court is bound to conclude that the Club, an occupier inviting children on to its premises to play on and around the monument, is absolved from taking the relatively inexpensive step of retaining an engineer to “assess and certify the stability and integrity of the proposed method of installation” of the monument.

29. There is an even more significant problem with the evidence of the engineer, Mr Gohil, who was permitted to give evidence in answer to the following question:

“Would the landlord or the occupier acting reasonably before granting permission for the monument to be constructed on its land, have obtained or required the stone mason to obtain the opinion of a structural engineer to certify the structural integrity and safety of the design and method of the monument.”

30. Mr Gohil’s evidence in answer to that question was inadmissible. No part of Mr Gohil’s study, training or experience permitted him to opine about the reasonable precautions that the occupier of the Club’s land should have taken. The evidence should have been excluded under s 79 of the Evidence Act 1995 (NSW). Although the notice of appeal did not address this issue, Mr Lloyd SC correctly objected to this evidence at the trial and Mr Gohil’s evidence on this topic was inadmissible. This matter should be reflected in the costs of the appeal.

31. Mr Gohil’s evidence in chief on this subject should be given no weight. Equally, the cross-examination and the concessions made by Mr Gohil in cross-examination on the same topic are of no weight. The contrary views, similar to his initial views, expressed by Mr Gohil in further cross-examination by senior counsel for the insurer are also of no weight.

32. Objectively, by reference to the particular circumstances of the case, it should be concluded that the Club consented to the erection of the monument upon its grounds. The 400kg headstone of the monument was potentially unstable, resting on a base only 150mm wide. The Club knew, or as the occupier of the premises, ought to have known, that unless the headstone was firmly fixed to its base to resist lateral forces there was a chance it would fall over. It was clearly foreseeable that children present at the Club would be attracted to and climb upon the monument. If the headstone detached from its base the effect could be – and was – catastrophic.

33. The relevant circumstances in determining whether a reasonable person in the position of the Club would have taken the identified precaution were:

1. The Club was a profit-making venture that offered its services for a fee;

2. The consumers of those services included parents with children and the children themselves. Children were not permitted to enter the Club building and were confined to the grounds, where the monument was to be located;

3. Children were to be permitted to play on or near the monument;

4. The Club controlled those grounds and held the power of refusal of entry to the grounds and the area where the monument was located if it was not satisfied that the structure was safely constructed;

5. The likely seriousness of the harm if the identified risk came to pass was severe. If the monument was unstable and fell on a child then death, serious injury and mental harm were highly likely;

6. The headstone was a 400kg piece of yellow sandstone 970mm high, 1150mm long and 150mm thick resting on its thin edge on the base. If that stone was detached from the base and fell, the falling stone could cause potentially catastrophic injuries to consumers of the Club’s services in the vicinity; and

7. Mr Partridge, the person who dealt with the Council on behalf of the Club, knew that the Council required, as a condition of consent, engineering drawings and other documents demonstrating the stability of the monument to be produced. Mr Partridge, on behalf of the Club, took deliberate and successful steps (the precise content of which steps were not clear on the evidence) to have the Council requirement that engineering drawings and other documents demonstrating the stability of the monument removed.

34. The factors tending against the finding that reasonable care required the precaution that the Club obtain engineering drawings were that:

1. the Club retained an apparently qualified stonemason to build the monument; and

2. the Council did not require, as a condition of its Development Consent, the provision of engineering drawings.

35. As to the first of these two matters, there was no evidence of inquiry by the Club about the competence of JJ Edstein & Sons Pty Ltd or Mr Edstein. Although submissions were made by Mr Edstein that he was highly experienced, evidence of his competence as a stonemason was not led at the trial. Critically, the evidence showed no enquiry by the Club or on its behalf about the method or standard of affixation of the monument to its base and there was no evidence of any assurance sought by the Club or given by Mr Edstein or anybody else about the stability of the monument once constructed. Given the nature of the project and the obvious risk to patrons the safety and stability of the headstone on the monument was not a matter that a reasonable person in the position of the Club could simply assume. The absence of evidence that the Club took any step to seek or obtain assurance about the stability of the monument tends in favour of the conclusion that reasonable care required the precaution that the Club obtain engineering drawings. Put another way, the retention of an “apparently qualified stonemason”, in all the circumstances of this case, does not lead us to conclude that the respondents failed to prove that reasonable care required the precaution that the Club obtain engineering drawings.

36. As to the second matter, whilst the conditions of the Development Consent are relevant, the Council’s requirements cannot be determinative. The Club was a commercial enterprise which invited customers to attend the premises and their children to play near or on the monument. As Leeming JA said in Coffs Harbour City Council v Polglase [2020] NSWCA 265 at [108] in a not dissimilar context (a case where a rail on a public wharf was said to have complied with the relevant Australian standard):

“… it is no answer to point to the representation from the State that the railing complied with Australian standards. … the standard may inform but cannot dictate the standard of reasonable care in any particular case: Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 at [110].”

37. The burden of taking this precaution to avoid the risk of harm was small. The engagement of an engineer to “assess and certify the stability and integrity of the proposed method of installation” of the monument would have cost approximately $300.

38. The social utility of the activity is not relevant here. That factor simply gives expression to the idea that some activities are more worth taking risks for than others. As is pointed out on page 103 (footnote 1) of Australia, Department of the Treasury, Review of the Law of Negligence – Final Report, (September 2002):

“… a plaintiff may be required to submit to a risk for the sake of some greater good that they would not be expected to accept if some lesser interest were at stake. A common situation in which precautions that would normally be thought reasonable need not be taken is where an emergency vehicle is speeding an injured or sick person to hospital. As Denning LJ said in Watt v Hertfordshire County Council [1954] 2 All ER 368, 371 it is one thing to take risks when driving for some commercial purpose with no emergency, but quite another to take risks for life and limb.”

39. In this case, there was no reason why erecting an ANZAC monument, accepting the social worth of the monument, would reasonably require users of the Club’s premises to submit to greater than ordinary risks. An ANZAC monument could easily have been constructed without presenting risks to customers of the Club. The activity at the heart of this case was therefore unlike, say, the operation of an emergency vehicle, where greater than normal risk cannot be excluded from the nature of the activity.

40. The primary judge’s finding that the Club “had a duty” in 1997 to engage an engineer "to assess and certify the stability and integrity of the proposed method of installation" should be understood as a finding that the Club breached its duty of care by failing in 1997 to engage an engineer for the stated purpose. Weighing all the matters above, we have concluded that that finding was correct.

The “push test” precaution

41. As to the second precaution, it will be recalled that the primary judge found that the Club was negligent because it failed to conduct a “simple push test” immediately after construction and again 10 years later. As to a “push test” being conducted immediately after construction, we have concluded that the push test was not a precaution a reasonable person would have taken in the circumstances. The informality of the test, on the evidence, highlights the uncertainty about its content and operation. The suggested test is apparently a spot assessment conducted by a lay person.

42. A reasonable person in the position of the Club would understand such a test was necessarily inexact and would not necessarily reveal defects in construction of the monument. A reasonable person in the position of the Club would understand that conducting such an inexact test may give a false sense of assurance. The way in which the test would be conducted and the force to be applied (and on which part of the monument) was unclear on the evidence and the primary judge’s findings. It is not clear how, if at all, it could be concluded that the monument “passed” the test.

43. The informality of the “push test” disguises a bigger problem. There was no evidence that the physics of pushing the monument would have been more likely than not to reveal the defect in a way that would have allowed its cure. We have concluded that it was not a reasonable precaution that the Club should take, via an unidentified and non-expert person, to conduct a “push test” at the outset.

44. The suggested reasonable precaution of a “push test” being conducted after 10 years suffers from the same defects. We also agree with Adamson JA that on the facts of this case which her Honour describes at [92]-[96], [118] the Club was not put on notice by any observable sign that the monument was structurally unsound.

45. Mr Steedman, one of the stonemasons, gave unchallenged evidence that if properly constructed, the monument “should have lasted for 100+ years without the need for any kind of maintenance”.

46. The exercise of reasonable care by the Club did not require the application of the “push test”.

47. Before leaving this topic, we should record that we do not think the extracts of the City of Greater Taree Monuments/Memorial Register dated December 2001, including the statement that the monument had been “[m]aintained in pristine condition”, takes the matter any further. The admission or rejection of the document does not affect our conclusion that the Club was not put on notice by any observable sign that the monument was structurally unsound. If it matters, we would not infer under s 183 of the Evidence Act that the statement that the monument had been “[m]aintained in pristine condition” was based on the observations of any person with knowledge of the maintenance practices of the Club. We are not satisfied that the statement, in context, was any more than an assumption about the Club’s maintenance practices made by a Council employee. We would reject ground 3 of the appeal.

Conclusion on the appeal regarding the Club

48. Had the Club engaged an engineer at the outset, the evidence is clear that the fatal defect in the construction of the monument would have been discovered. Section 5D causation is thus established. Damages were agreed between the parties and are not in issue.

49. Accordingly, we would dismiss the appeal by the Club, save in respect of ground 6, which dealt with the Club’s claim for statutory contribution from Mr Edstein, on the basis that Mr Edstein is a concurrent tortfeasor and also liable to the first and seventh respondents.

Contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW)

50. As both the Club and Mr Edstein are liable, contribution pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) must be assessed. By s 5(2) of that Act, the contribution recoverable by one joint tortfeasor from another is the amount that the Court finds to be “just and equitable having regard to the extent of that person’s responsibility for the damage”. What is “just and equitable”, in the circumstances, is a matter for the Court’s discretion: Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200; [1955] HCA 1 at 212–13; Macquarie Pathology Services Pty Limited v Sullivan (Court of Appeal (NSW), 28 March 1995, unrep) at 8–9 per Clarke JA. However, in exercising that discretion, the Court must give weight to the joint tortfeasors’ relative responsibility as “a fundamental element”: James Hardie & Co Pty Ltd v Roberts (1999) 47 NSWLR 425; [1999] NSWCA 314 at [89] per Sheller JA (Spigelman CJ, Meagher, Stein and Giles JJA agreeing).

51. Section 9(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) empowers the Court to apportion damages for the plaintiff’s contributory negligence in an amount that is “just and equitable having regard to the claimant’s share in the responsibility for the damage”. That test requires the Court to compare the different degrees of departure from the standard of care of the reasonable person and the relative importance of the acts of the parties in causing the damage: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529 at 532. This Court has followed the approach in Podrebersek to the question of contributory negligence, when applying the similar test imposed by s 5(2) of the 1946 Act: Roberts at [90] per Sheller JA (Spigelman CJ, Meagher, Stein and Giles JJA agreeing).

50. In this case, damages should be apportioned under s 5(2) by comparing the relative responsibility of the Club and Mr Edstein for the harm caused, and in particular by comparing their respective departures from the relevant standard of care and the relative importance of their actions in causing the harm.

51. It is correct, as the Club submitted, that Mr Edstein did not warn the Club of the dangers posed by the deficiencies in his method of construction. On the other hand, the Club was the owner of the land and responsible for inviting members of the public, including children, on to its premises, without taking the reasonable precaution of obtaining engineering drawings which would have identified the structural issues.

52. Comparing the degree of departure from the standard of care of the reasonable person and the relative importance of the acts of the parties in causing the damage, Mr Edstein’s culpability is equivalent to the culpability of the Club. Mr Edstein’s acts were a significant cause of the damage and the Club’s breach of duty was also significant in that it failed to take reasonable steps that would have uncovered at the outset Mr Edstein’s negligent construction of the monument.

53. Liability should be apportioned 50% to Mr Edstein and 50% to the Club.

Conclusion and proposed orders

56. The orders made by the primary judge on 27 October 2022 were:

(1)    Judgement for the plaintiffs against Blackhead Bowling Club Ltd. Damages to be agreed or assessed.

(2)    Judgement for John Edstein against the plaintiffs.

(3)    Judgement for John Edstein in the cross claim by Blackhead Bowling Club Ltd.

(4)    Judgement for CGU on the cross claim by Blackhead Bowling Club Ltd.

(5)   I will hear the parties on costs.

57. The costs orders, made on 3 February 2023, were:

(1)    Black Head Bowling Club Limited pay the costs of the plaintiffs on a party/party basis.

(2)    Black Head Bowling Club Limited pay the costs of John Edstein on a party/party basis.

(3)    Black Head Bowling Club Limited pay the costs of Insurance Australia Limited t/as CGU Insurance on a party/party basis until 22 March 2021, and thereafter on an indemnity basis.

(4)    The payment of costs be stayed pending the determination of the appeal.

58. For the foregoing reasons we would make the following orders:

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:

1. Judgment be entered in favour of the plaintiffs against the second defendant, Mr Edstein.

2. Mr Edstein to pay the plaintiffs damages in the agreed amount.

3. 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.

59. The effect of these orders is the Club remains liable to the plaintiffs. Mr Edstein is also now liable to the plaintiffs. As between the Club and Mr Edstein, each is liable to the other for 50% of the agreed sum of damages. In relation to the costs of the trial, we have determined to set aside only order 2 of the costs orders made below. The effect of this is that the Club remains liable for the costs of the plaintiffs of the trial but is not liable for Mr Edstein’s costs. There is no order for costs as between the Club and Mr Edstein of the trial with the intention that they each bear their own costs of that part of the case.

60. ADAMSON JA: This appeal concerns liability for the death of a 3-year old girl (the deceased) who was killed on 26 November 2016 when an ANZAC memorial headstone (the monument) in the grounds of the Black Head Bowling Club Ltd (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, thereby creating lateral forces which were the immediate cause of the dislodgment. The underlying cause of the collapse was that the monument had been poorly constructed in 1997.

Introduction

61. The deceased’s family members (the plaintiffs) claimed damages against the Club; John Edstein, the stonemason who had constructed and installed the monument; and Insurance Australia Limited trading as CGU Insurance Limited (CGU), which was the insurer of JJ Edstein & Sons Pty Limited (the Edstein company), which had been deregistered. The Club cross-claimed against Mr Edstein and CGU.

62. In a judgment delivered on 27 October 2022, Curtis DCJ (the primary judge) found that the Club was liable in negligence and ordered judgment against it in favour of the plaintiffs accordingly. His Honour found that Mr Edstein was negligent but that the scope of his liability ought not extend to the harm caused and therefore ordered judgment in favour of Mr Edstein on the plaintiffs’ claim and the Club’s cross-claim.

63. The primary judge found that because the date of the death of the deceased was not within the period of insurance, the CGU policy did not cover the liability. Accordingly, the primary judge entered judgment for CGU on the plaintiff’s claim and the Club’s cross-claim against CGU. On 3 February 2023, the primary judge ordered the Club to pay the costs of the plaintiffs, Mr Edstein and CGU.

64. The Club appeals against the judgment entered against it and the costs order. The plaintiffs challenge, by cross-appeal filed on 3 March 2023, the judgment entered against them in favour of Mr Edstein. The plaintiffs have filed a notice of contention in relation to the judgment against the Club. Mr Edstein has filed a notice of contention in the Club’s appeal in respect of the judgment in his favour as well as a notice of contention in the plaintiffs’ cross-appeal. All matters involving CGU have been resolved and the proceedings against it were discontinued on 1 August 2023. Accordingly, it is no longer necessary to address the submissions and grounds which would otherwise concern CGU. There is no issue about damages, which were agreed.

The reasons of the primary judge

65. The primary judge’s findings as to the immediate cause of the death, which were not challenged, are as follows:

“1   On 26 November 2016 Indy Lee Henderson, a child two months short of her fourth birthday, was killed when an Anzac Memorial headstone at the Black Head Bowling Club fell upon her when she was playing at its base.

2    The immediate cause of the headstone falling was the rocking motion of a 10 year old boy who sat astride the headstone riding it like a horse.

3    The headstone was erected in 1997. It was 1150 mm long x 970 mm high and 150 mm wide and weighed approximately 400 kg. There is no dispute that it was insecurely fixed to the base. The dowels joining the headstone to the base were too short, the holes drilled into the base were too large to tightly fix the dowels. Silicon, an inappropriate spongy and compressible material, was used to bind the dowels in place. This product provided no resistance to lateral forces. No cement was used to seal the bottom of the headstone to the base, rather it was laid upon dozen or so circular pads of silicon. Two tiling packers were laid along the centreline to set the bed height. These created pivot points about which the headstone would more easily rotate upon application of lateral forces.”

The claim against the Club

66. The primary judge noted that the plaintiffs alleged that the Club was negligent on two alternative bases:

1. it failed to undertake reasonable enquiries of engineers or builders to ensure that the method of fixation of the monument was sound (the construction duty); and

2. it failed to test the stability of the structure at regular intervals by pushing against it (the testing duty).

67. The primary judge accepted the opinions in the joint report of Jasper Swann and Robert Steedman (the joint experts), both experienced stonemasons (who were not required for cross-examination), that “the ordinary practice of stone masonry required consideration of the likely forces that might be applied to the monument given the place and circumstances where it is installed” and that “the method of installation of this headstone was inconsistent with ordinary stone masonry practice”. His Honour found, on the basis of the evidence of Hari Gohil (the structural engineer called by the plaintiffs to give expert opinion evidence), that the masonry structures should be tested every 10 years by an experienced structural engineer. The primary judge accepted Mr Gohil’s evidence that a simple test for structural integrity could be performed by a layperson by simply pushing against the headstone to detect movement and that this test should be conducted at regular intervals. The primary judge also accepted Mr Gohil’s evidence that “if the headstone had been correctly affixed to the base the structure would have been sufficiently sound to withstand the moments [movements] imparted by the boy riding the headstone”.

68. The primary judge identified the risk of harm as “the risk that the headstone of the monument may detach from its base thereby causing injury to children in the vicinity”. His Honour found that the risk was foreseeable and that it was also foreseeable that “children present at the club would be attracted to and climb upon the monument altering its centre of gravity”.

69. As to the significance of the risk, the primary judge found:

“20   The headstone was approximately 1 m² in section and weighed approximately 400 kg. It constituted a significant risk of substantial harm to children if it fell upon them.

21    If the headstone was not securely affixed to the base it was likely to fall upon application of modest lateral pressure. That likelihood was higher if children sat or played upon it.”

70. The primary judge found the burden of the suggested precautions to be minimal and said:

“An engineer could have been retained to assess and certify the stability and integrity of the proposed method of installation for a cost of approximately $300. The cost of an employee pushing against the completed structure to test its stability was nil.”

71. His Honour found that it was appropriate that the scope of the duty owed by the Club extend to “taking the postulated measures to prevent the headstone toppling upon children”.

72. As to causation, the primary judge found that it was more probable than not that, “had the club engaged [an] engineer to provide directions for the installation to JJ Edstein and Sons Pty Ltd, those directions would have been followed resulting in a safe structure” and “had the club performed a simple push test immediately after construction, and again 10 years later, the instability of the headstone would have been revealed and measures taken to rectify the problem”.

The claim against Mr Edstein

73. The primary judge found that, as Mr Edstein had admitted that he erected and installed the monument on the premises, he was prima facie liable to the plaintiffs in negligence. However, his Honour entered judgment in favour of Mr Edstein on the basis of his finding that the scope of Mr Edstein’s liability ought not extend to that liability for the following five reasons:

“His negligence occurred in the course of his employment for wages. He did not profit from the contract entered into by his employer. The injury occurred remotely in time from his acts of negligence. During the 19 years that elapsed before the injury he had no control over the monument. The club being liable the plaintiffs are not denied relief.”

Costs orders

74. The primary judge ordered that the Club pay Mr Edstein’s costs of the proceedings because the Club had, in its defence, alleged that it was not liable but Mr Edstein was. The Club challenges this order.

75. The proceedings were conducted in a haphazard fashion, in part because of the way in which the primary judge dealt with Mr Edstein’s application to withdraw his admission on the pleadings that he had erected and installed the monument. I propose to address the questions of liability which arise on the appeal and the cross-appeal before addressing, at the conclusion of my reasons, Mr Edstein’s challenge to the primary judge’s refusal to allow the admission to be withdrawn or to admit the transcript of the motion for leave to withdraw as I am not persuaded that Mr Edstein has established error.

The grounds of appeal

76. The Club appeals on the following grounds:

“1    The primary judge erred in finding at J[17]-J[19] that the risk of harm contended for by the first to seventh respondents and/or any risk of harm found by the primary judge was foreseeable to the appellant.

2    The primary judge erred in finding that a reasonable person in the appellant’s position would have taken the following precautions in response to the risk of harm:

2.1    retained an engineer to assess and certify the stability and integrity of the proposed method of installation of the monument: J[22];

2.2    to the extent this was found by the primary judge, engaged an engineer to provide directions for the installation of the monument to JJ Edstein and Sons Pty Ltd: J[26];

2.3    performed a push test on the monument immediately after its construction and thereafter at 10 yearly intervals: J[27];

3    The primary judge erred in rejecting the tender of an extract of the City of Greater Taree Monuments/Memorial Register dated December 2001.

4    The primary judge erred in his findings about the effect of Mr Gohil’s oral evidence at J[13]-J[14]:

4.1    the primary judge erred in finding at J[13] that Mr Gohil, a structural engineer qualified by the first to seventh respondents, did not resile from his evidence that the monument erected at the appellant’s premises should be push tested at regular intervals;

4.2    the primary judge erred in finding at J[13] that Mr Gohil’s concession that the monument erected at the appellant’s premises did not require a push test was made upon assumptions put to Mr Gohil that were not proven;

4.3    the primary judge erred in finding at J[14] that Mr Gohil reaffirmed his opinion that regular inspections of the monument erected at the appellant’s premises were required when cross-examined by the third defendant.

5    The primary judge erred in finding at J[27] that the appellant’s failure to take the reasonable precautions found by him were a necessary occurrence of the harm to the first to seventh respondents.

6    The primary judge erred in finding at J[31]-J[32] that it was not appropriate for the scope of the eighth respondent’s liability to extend to the harm to the first to seventh respondents.

7    Not pressed.

8    The primary judge erred in finding at J[8] of the costs judgment that it was appropriate to order the appellant to pay the costs of the eighth and ninth respondents.

9    Not pressed.”

77. The challenge to many of the grounds requires an analysis of the evidence which I propose to review before turning to the grounds.

The facts

The installation of the monument

The Development Application

The original application

78. In about 1997, the Club constituted a committee known as the Hallidays Point ANZAC Day Committee (the Committee) for the purpose of arranging for an ANZAC memorial monument to be installed on the Club’s land. The Committee was an unincorporated association. Mr Lloyd SC, who appeared with Ms Coventry for the Club, confirmed that no point was taken on appeal about the Committee’s authority to act as agent for the Club. Accordingly, I propose to refer to the acts of the Committee as acts of the Club.

79. In February 1997, the Club lodged a Development Application (DA) for the erection of a monument with Greater Taree City Council (the Council). The DA was accompanied by some basic plans and drawings which depicted the height of the monument as 1150mm; its width as 1m and its proposed location of the monument in the area between the greens and the street.

The original development consent

80. On 5 March 1997, the Council, after assessing the DA, granted development consent on the following three conditions:

““1 101 The development of the site being carried out generally in accordance with the drawings marked ‘D59/97 – approved’.

2 102 A building application shall be deposited in accordance with the provisions of the Local Government Act 1993 and the Local Government (Approvals) Regulation 1993. No work is to be commenced prior to the building approval being received by the applicant.

3 502   All adjustments to existing utility services made necessary by the development are to be undertaken by the developer at his/her expense.”

The modification of the consent

81. A further drawing of the monument dated 10 March 1997 was prepared by the Club and submitted to the Council. A representative of the Club phoned the Council on 13 March 1997 to request an amendment of the development consent. By letter dated 19 March 1997, the Council advised the Club that the consent dated 5 March 1997 had been amended pursuant to s 102 of the Environmental Planning and Assessment Act 1979 (NSW) (which then provided for modification of consents) by the deletion of condition 2.

82. Mr Gohil gave evidence, which was allowed over Mr Lloyd’s objection, that, if the monument had been more than 1m high, building approval would have been required.

83. Had the second condition remained in development consent, the Council would have required the following as part of the Club’s building application:

1. structural engineer’s drawings or other engineering details by a structural engineer: cl 31 of the Local Government (Approvals) Regulation 1993 (NSW) (the Regulation);

2. documents which addressed matters including the stability of the monument: cl 12(1)(c) of the Regulation.

The construction of the monument in 1997

84. The Club approached Mr Edstein to construct the monument. The following passages from Mr Edstein’s statement to police which was prepared for the inquest into the deceased’s death were admitted into evidence to establish the facts contained therein:

“5   In 1959 I was qualified as a Stone Mason. In those days once you were signed off as a tradesman that was it, there was no ongoing licensing requirement or anything like that.

6   Stone Masonry involved building structures out of various stone, including dwellings, commercial buildings, church altars, sanctuaries and memorials. I went on to do further study and training and also specialised in the field of letter cutting and carving into stone.

…

9   In early 1997, before leaving Edstein's Creative Stone I was consulted by the ‘Hallidays Point Anzac Day Committee’ in relation to the erection of a stone Anzac Day Memorial to be put up at the Blackhead Bowling Club. I provided them some advice regarding the appearance of the stone to improve the aesthetics. …

16   Three of us from Edsteins Creative stone worked on constructing the memorial on site. My son Greg EDSTEIN, another staff member Ralf WHYTEBUTLER and I. The process was to set the base stone onto the concrete footing using a cement bedding, then the sub base (2nd level of Sandstone) was fixed to the base in the same manner. The upright pedestal is then fixed to the sub base again using a cement bedding and two metal dowels. These were usually a heavy galvanised steel. ·it was necessary to create a hole in the base plate that was a couple of millimetres larger that the dowel rods to ensure sufficient space for a fixing agent such as cement or silicone to be used. I do not recall specifically what we used in this occasion. On some occasions we would also lay silicone underneath the pedestal as an extra fixing to the sub base.”

85. In his defence to the statement of claim filed on 12 August 2020, Mr Edstein admitted the plaintiffs’ allegation in their statement of claim that “[o]n a date between 5 March and 25 March 1997, [Mr Edstein] erected and installed the monument on the premises”. In his defence to the further amended statement of claim filed on 7 July 2022, Mr Edstein admitted that he, as an employee of the Edstein company, was “involved in the erection and installation of the [monument]”. He also admitted in his amended defence to the Club’s cross-claim against him that at all material times he held himself out as being competent and experienced in the design, construction and erection of stone structures. These admissions were consistent with the extracts from Mr Edstein’s police statement set out above.

86. Mr Edstein confirmed in cross-examination that at the time the monument was installed, he was the only qualified stonemason in the Edstein company.

The latent flaws in the monument caused by its poor construction

87. It was common ground, and the primary judge found, that the monument had been very poorly constructed. The joint experts opined that the monument was connected to its base across the bottom bed joint by two bronze or brass dowels with a diameter of 8mm and a length of approximately 110mm. The dowels were embedded about 60mm into the base and about 44mm into the headstone. The dowels were installed in drilled holes of about 20mm diameter. The balance of the hole was filled with silicone sealant. The bed joint between the headstone and the base was approximately 6mm in thickness and comprised silicone sealant only, with a narrow strip of silicone sealant and pointing around the perimeter. The pointing was a richly cementitious mortar of approximately 6-8mm depth. Two small ceramic tiles of 6mm thickness may have been installed in the bed joint as packers.

88. The joint experts opined that the method of construction was not consistent with the practice of a competent stonemason in 1997 in several respects, including that the dowels were too short and too narrow in diameter; an epoxy or cementitious grout ought to have been used in the holes to secure the dowels rather than silicone sealant; a continuous bedding mortar should have been applied to the base; and the packers should not have been used in the absence of bedding mortar. The joint experts opined that, if the monument had been installed in accordance with ordinary stonemason practice, it would have been able to resist the ordinary forces (including lateral forces) applied by children playing on the monument.

89. The unchallenged evidence of the joint experts as to the longevity of the monument had it been properly constructed was as follows:

“In this case, the proximity to the ocean would have been a significant potential contributor to accelerated surface decay of the sandstone, owing to the harmful effects of crystallization associated with wind- and rain-borne soluble salts. However, the effects of this would be limited to the outer 2-3mm of the sandstone, over a long term, and even within a period of 100 years or more, would be expected to have no bearing on the structural integrity of the monument.

There is no evidence of any significant surface erosion or decay on the headstone, base or sub-base and in our opinion there is no evidence to suggest that the owner of the monument would have had cause to consider maintenance of the monument on the basis of any surface erosion or decay.

…

In historic monuments, the corrosion and failure of embedded ferrous dowels and fixings can be a contributor to the development of structural instability. Instability associated with this mechanism would typically occur progressively over a long period (>100 years). In modern (post-1920s) structures, corrosion of embedded dowels and fixings is generally not seen, as ferrous fixings were replaced with non-ferrous fixings that are not susceptible to corrosion.

Thus, as a maintenance consideration, structural instability becomes an issue only in limited and generally exceptional circumstances and is something that is generally visually apparent to a lay observer.”

90. When asked whether, in their experience, periodic inspection of monuments by an engineer is undertaken, the joint experts’ agreed response was:

“No. Generally, inspection of monuments is triggered only by visual observation of the monument's owner that the monument may need maintenance or remedial structural works and subsequent request of a suitably experienced stonemason, stonemasonry consultant or conservation architect to inspect the structure and provide advice. Only in circumstances where the stonemason, stonemasonry consultant or architect might feel that the input of a structural engineer is required, for example; to provide certification following implementation of remedial structural works or to specify new footings or remedial fixing details, would a structural engineer be involved. This occurs infrequently and generally only in response to significant structural issues affecting large and complex monuments, and even then generally only monuments of heritage significance. The ANZAC monument is considered a small and simple monument and is of no heritage significance.”

91. It was common ground and accepted by Mr Gohil that the defects in construction set out above were internal and not visible once the monument was erected.

The Club’s inspection and maintenance of the monument and the forces to which it was subject

92. The monument was exposed to weather, including heavy winds and rain.

93. Jason Aurisch, a greenkeeper at the Club between 2009 and 2018, gave unchallenged evidence that the monument was generally cleaned and well maintained by the Club, including by him. He said that he saw Geoff Stockman, a member of the Committee, use a Gerni high pressure washer on the monument.

94. Mr Aurisch’s evidence was corroborated by contemporaneous planning checklists for the period from 2010 to 2016 which contained an item, “Memorial & Steps – Cleaning” which was to be done “prior to ANZAC Day”.

95. David O’Hara, who had an engineering background, was a member of the Club’s board between 2007 and 2011 and a Committee member thereafter up to and including 2016. In 2015 or 2016, Mr O’Hara helped Mr Stockman clean the monument. Mr O’Hara said that cleaning the monument was “like cleaning a car” and that they would wash it down with a bucket of water and some cloths. Mr O’Hara’s denial that he ever observed anything on the monument that suggested that there was a structural problem was not challenged. He also gave evidence that it did not occur to him that there was a risk that the monument might topple. Nor was there any discussion about any such risk by the board of the Club.

96. There was some evidence of children playing around the monument and on the monument on the day of its collapse. For example, Sandra Woods, who went to the Club two or three times a month, saw children climbing in the area of the monument (on the steps) but could not recall an occasion prior to 26 November 2016 when she had seen anyone actually up on the monument itself although she said that she saw children climbing over it. The primary judge’s findings that children were likely to have played on the monument at times and that it was foreseeable that they might do so were not challenged.

The expert evidence of Mr Gohil

97. The effect of Mr Gohil’s evidence is the subject of ground 4. It is convenient to address the evidence here while addressing the facts.

98. Mr Gohil’s experience included that he had “worked on most of the sandstone buildings in Sydney”. He prepared three reports dated 25 March 2017, 19 September 2018 and 22 April 2020. In his third report, he gave the following opinions in answer to the questions posed by the plaintiffs’ solicitors:

“Before Construction of the Anzac Monument (the monument) at the Blackhead Bowling Club:

1. In relation to plans for the construction of the monument:

Would the landlord or the occupier acting reasonably before granting permission for the monument to be constructed on its land, have obtained or required the stone mason to obtain the opinion of a structural engineer to certify the structural integrity and safety of the design and method of the monument.

RESPONSE:

Yes. All new and alterations to existing buildings and structures are to comply with Building Code of Australia. It is the duty of the Builder to provide a structure, or alterations that comply with the Code. The landlord or the owner should ensure that this is complied with. The builder should seek the help of an engineer to provide the certificate.

FEES:

The structural engineers fees would have been in the order of $300.00 for assessing and certifying the monument.

After construction of the monument:

2.    Ought a landowner or occupier acting reasonably to maintain the monument, the premises on which the monument was erected and to protect the safety of members of the public attending the Bowling Club have a schedule for ongoing maintenance of the monument to periodically inspect or arrange for inspection and testing of the ongoing structural integrity and safety of the monument?

RESPONSE:

Yes. All structures require inspection and maintenance.

The inspection and testing to be undertaken by an experienced structural engineer.

Normally masonry structures should be inspected at every ten years for weathering and distress, or earlier if a distress is observed .

The masonry structure to be inspected at close hand for signs of weathering, defects in the stone and weathering of the mortar. The structure should be load tested for the type of loads it is to resist. The monument is designed to stay up vertically, this would be tested by imparting a blow to it by hand and trying to topple it.

The cost of this inspection would be travel time and time on site for an engineer and issue a certificate/report. The hourly rates vary from $100 to $150.

3 .    Having regard to your knowledge of the method of construction of this monument, the evidence available to you and your investigations after the accident, if a structural engineer had undertaken maintenance or inspection of the monument 10 years after construction, would testing have identified that the monument was unstable and had been improperly constructed and installed?

RESPONSE:

Yes. The monument vertical element was secured by dowels installed in silicon mastic. The mastic is flexible. Any lateral load applied to the top of the vertical element on the long side would induce a pull out force on the dowel. The pull out force is equal to the applied lateral load multiplied by the height and divided by half the thickness of the vertical element. The pull out force is an amplification of the applied lateral force. Testing in this way would have revealed a shift of the monument top to one side and indicated the weakness in the structural stability.”

99. Mr Lloyd objected to the answer to question 2 on the basis that Mr Gohil’s expertise as a structural engineer was not relevant to determining the reasonableness of precautions that an occupier of land should take when consenting to a structure being erected on its land. The answer to question 2 was admitted over his objection.

Whether the Club owed a construction duty to the plaintiffs

100. Mr Lloyd cross-examined Mr Gohil about his answer to question 1. Mr Gohil confirmed his opinion that the stonemason ought to have obtained the opinion of a structural engineer as “[the stonemason] was contracted to [build it]”. Mr Gohil also agreed in cross-examination that the load testing referred to in his answers to questions 2 and 3 could be conducted by someone with less experience than a structural engineer.

101. However, Mr Gohil changed his opinion as to the answer to question 1, as revealed by the following passages from Mr Lloyd’s cross-examination of him:

“Q. You’ve said that they should have done that. The club – the occupier of the land – should have made sure the stonemason got an opinion from a structural engineer. That’s what you’ve said.

A. Simple structures – when stonemasons erect any simple structures, which they consider simple – they wouldn’t engage a structural engineer because they would rely on their past experience.

Q. And this was a simple structure?

A. Yes.

…

Q. I want you to also assume - you may know this - but that there was no practice as at 1997 by stonemasons in erecting a monument of this kind to retain a structural engineer to give an opinion about structural adequacy.

A. An experienced stonemason would know what to do.

Q. Coming to your opinion about the obligations on a land occupier in the position of the club as expressed in your third report - just reminding you – in effect that the club should have required the stonemason to get the opinion of a structural engineer - you remember that's what you've said?

A. Yes.

Q. Don't you think it's significant in terms of whether that was a reasonable requirement on the part of the club, that first - I think you've agreed – the consent authority ultimately did not require that to be done?

A. Correct.

Q. That'd be significant, wouldn't it?

A. Yes.

Q. Wouldn't it also be significant that the apparently qualified stonemason who did the work didn't require it to be done?

A. Correct.

Q. And it wouldn't be necessary in your opinion for the dealing with the applicant, being the person who wants to erect the monument, to form any different view about the requirement for a structural engineering opinion than the council or the stonemason--

A. Correct.”

102. As I will explain later in these reasons, I regard these concessions (in particular that a stonemason would have sufficient knowledge and expertise to construct such a simple structure without needing engineering supervision or advice) as putting to an end the plaintiffs’ case against the Club that it owed a construction duty.

Whether the Club owed a testing duty to the plaintiffs

103. Mr Lloyd asked Mr Gohil to make the following assumptions:

1. the stonemason did not recommend any maintenance of the monument;

2. between 1997 and 2001, the monument was observed to be aesthetically maintained in an apparently pristine condition by the Committee;

3. after 2001, the monument was cleaned annually for about 30 minutes, using a cloth rag or sponge, by someone who had an engineering background (Mr O’Hara); and

4. on no occasion between 1997 and November 2016 was there any report of any sign of distress, deterioration or instability in the monument.

104. The following exchange occurred on the basis of those assumptions:

“Q. The things that I have put to you were consistent with the exercise of a reasonable program of inspection and maintenance by the club. Do you agree?

A. Yes. All these are visual.

…

HIS HONOUR

Q. Can I pause and ask, do you resile from your evidence that maintenance would require pushing it from time to time to see if it was stable?

A. Okay. If there were no distress, no … If there was no distress, then it wouldn’t require pushing.

Q. What do mean, ‘distress’?

A. Normally you see signs of cracking or spoiling of the sandstone – then it would require.”

105. After Mr Lloyd had completed his cross-examination of Mr Gohil, Mr Watson SC, who appeared with Ms Tang for CGU, cross-examined Mr Gohil about the in the following exchange:

““Q. … you don't design a war memorial with the thought that it'll be used for children to ride it like a rocking horse, do you?

A. You do, because-- … as an engineer, you got to look at structures which are outside in a public area, they could be susceptible to several loads or actions.

Q. So, this is what an engineer would do?

A. Yes. And even a[n] experienced stonemason would know. That this is in an open public area, and it could be subject to not just wind or somebody pushing it or sitting on it.

…

Q. … Your point is this, that as far as a prudent person was concerned, they should take into account that this memorial might have somebody sitting on them?

A. Yes.

Q. Not just a child, but a drunken adult, perhaps.

A. Yes.

Q. So, it required periodic inspection to make sure that it was safe?

A. Yes.

Q. When I talk about periodic inspection, we're not talking about some sort of formal regime of six months, five years, ten years or something. We're just saying that it must be a reasonable period during which a careful occupier of premises would have the structures on the premises examined for their safety.

A. There are - there are documents, which is Heritage Council has issued, which says there should be looked at every five years. Okay? There's a - Victorian Heritage as well says that structures should be looked at every five years.

Q. This is where I think there was an agreement with one of the barristers. You're not talking about an inspection or a test conducted by a structural engineer. It could be done by a careful layperson?

A. Yes.

Q. And of course, if you've got a bowling club where you know people are going to come; they're going to come and sometimes drink too much or they're going get jostling with their mates or whatever, you'd have to look at the structures around the place to make sure that they were safe.

A. Yes.

Q. Including the headstone.

A. Yes.

Q. In terms of examining the headstone, I think you are saying that there are publications which suggest it should be tested every five years?

A. Inspected. It didn’t - inspected, yes. Every five years.

Q. When we talk about inspection, of course, you can have a look at it, but there's the simplest test in the world that you've described in your report, where a person could actually come and lay their hands on the monument, the headstone, and gently push it.

A. Yes.

Q. You don't need to be a structural engineer to do that. You could be a layperson.

A. Yes.

Q. If you thought that the club was being careful, they might have, from time to time, either a builder or a handyman come to the premises and do just this kind of thing.

A. Yes.

Q. When I talk about pushing, I'm talking about somebody standing on their own two feet adjacent to the monument, perhaps from each side, and moving it with their hands to see whether it does move under that kind of pressure.

A. Yes.”

Q. If that had been done by the club at any time in the 20 years that this monument had been in place, it would've produced a result suggesting that the monument headstone was less than adequately stable. Correct?

A. Correct.

Q. That means that with the simplest and pretty cheap test, somebody could have detected-- … --that this headstone was likely or liable to collapse at some time.

A. Yes.

Q. And if the club had done that, got somebody, a builder, a handyman or even just one of the greenkeepers, to try that test at any time in the 20 years this monument was in place, it would've demonstrated that it was unsafe. Correct?

A. Correct.

Q. If they’d done that and responded to it appropriately, this terrible accident would never have happened. Correct?

A. Correct.”

[Emphasis added.]

106. Mr Gohil’s evidence in answer to Mr Watson’s questions in the passage above was accepted by the primary judge and formed the basis for his Honour’s finding that the Club owed a testing duty to the plaintiffs which it had breached, that the breach had caused the harm and that the Club was liable to the plaintiffs in negligence because it had failed to perform the push test.

Causation: what would have occurred had the monument been properly constructed

107. Mr Gohil said that “if the memorial was anchored properly with properly [sic] dowels and proper embankment depth and grout in there, it wouldn't have collapsed.”

Analysis of Mr Gohil’s evidence

108. Mr Lloyd submitted that, properly analysed, Mr Gohil accepted that:

1. involvement from a structural engineer was not required for the installation of a simple structure such as the monument because such installation would have been within the competence of a stonemason (and thus that the construction duty was not owed); and

2. testing of the monument was not required as there was no visual sign of deterioration or flaw in the monument.

“I grant the motion on terms that the parties be permitted to amend their pleadings.”

181. Mr Watson and Mr Collins objected to leave to amend being granted before any application had been made and before draft amended pleadings had been served. The primary judge then said that “the order ought to be that the parties have leave to seek amendment of their pleadings, in terms which are set out in an amended document”. After the luncheon adjournment, Mr Morris handed up a proposed second further amended statement of claim, to which both Mr Collins and Mr Watson objected. Further, Mr Watson complained that the basis for the amendment was material that Mr Morris had elicited from Mr Edstein in the course of the latter’s application for leave to amend. He also complained that he had not been heard on the withdrawal application.

182. Mr Lloyd indicated to the primary judge that neither he nor Mr Watson had been heard on the withdrawal application and that it would be preferable for leave to be revoked for the purposes of hearing from him and Mr Watson. Mr Lloyd then addressed the primary judge on why the withdrawal application ought be refused as well as the forensic consequences of granting it. Mr Watson then addressed the primary judge. Mr Collins was given an opportunity to respond.

The primary judge’s first refusal of the withdrawal application

183. After hearing the submissions, the primary judge gave an ex tempore judgment and made orders as follows:

“I had earlier ruled in favour of a motion by [Mr Edstein] to withdraw admissions, and I believe at the time of making that order I had not heard from Mr Watson. The issue that I assumed was material to my determination was whether prejudice occasioned by a withdrawal could be remedied by amended pleadings.

It is now made clear to me that the CGU has further prejudice in that Mr Edstein has given evidence that the work was carried out by unqualified workers, being his son, Greg Edstein, and Ralph Whytebutler. Had this application been made earlier, then those persons could have been interviewed. We are in the second day of a two week trial and in the trial is not appropriate that CGU respond to allegations made by Mr Edstein in evidence this morning without the opportunity to speak to those person. In the circumstances, I think that the prejudice occasioned to CGU and to the principles that justice should be speedy weigh against the grant of leave.

Any further reasons required by the parties? Therefore I revoke my earlier order and refuse leave to withdraw the admission.”

184. The trial resumed after these orders were made and Mr Morris called further witnesses in the plaintiffs’ case. At the end of the third day, 13 October 2022, Mr Morris closed the plaintiffs’ case. Mr Lloyd informed the Court that there would be no case for the first defendant and Mr Collins indicated that he was proposing to call Mr Edstein. The primary judge adjourned the proceedings until the following day.

The continuation of the withdrawal application

185. When the hearing resumed on 14 October 2022, Mr Lloyd reminded the primary judge that Mr Collins had not been permitted an opportunity to re-examine Mr Edstein before the primary judge decided to refuse leave to withdraw the admissions. He suggested that this might be important since, if there was an appeal, it would be necessary for this Court to have all the evidence germane to the exercise of the discretion (to grant or refuse the withdrawal application) so that it could exercise it afresh, if it found that the primary judge’s exercise of the discretion had miscarried. Mr Morris also pointed out that he had not completed his cross-examination of Mr Edstein on the withdrawal application. The primary judge then invited Mr Morris to complete his cross-examination of Mr Edstein.

186. Before resuming his cross-examination of Mr Edstein, Mr Morris tendered the paragraphs from Mr Edstein’s police statement (extracted above), which were admitted into evidence in the trial. Mr Morris cross-examined Mr Edstein about the inconsistency between the admissions in the pleadings and his police statement on the one hand, and his evidence on the withdrawal application on the other. There was further cross-examination by Mr Lloyd of Mr Edstein on the withdrawal application. Mr Watson did not cross-examine Mr Edstein on the withdrawal application. Mr Collins re-examined Mr Edstein on the withdrawal application, following which he asked the primary judge to revoke the last order refusing the withdrawal application and, instead, grant it. However, after the primary judge raised a potential Jones v Dunkel inference which could be drawn against Mr Edstein, Mr Collins also sought to call one further witness on the withdrawal application, Mr Edstein’s son, Greg. Greg Edstein gave evidence on the application and was cross-examined by Mr Morris (but not by Mr Lloyd or Mr Watson). There was no re-examination of Greg Edstein.

187. Mr Collins then addressed the primary judge on why the order refusing the withdrawal application ought be revoked. He submitted that Mr Edstein ought be permitted to present his case without being burdened by an admission made on his behalf by a solicitor “without full understanding as to what the reality was”. Mr Morris submitted that the case now sought to be made by Mr Edstein (that he was directed by his employer not to do anything with the monument except help with the delivery) ought to have been pleaded and was a completely different case from the one which the plaintiffs had come to meet. He also submitted that Mr Edstein had waived client legal privilege but had not tendered any documents from his solicitor’s file which recorded his instructions.

188. Mr Lloyd submitted that the primary judge should infer that there was a deliberate forensic choice to make the admissions in the pleadings because they were consistent with the stance Mr Edstein had taken at the inquest, as reflected in his police statement. Mr Lloyd urged the primary judge not to give reasons for his ruling, lest he create an apprehension of bias, having heard Mr Edstein give evidence on the withdrawal application, in circumstances where Mr Edstein might be called as a witness at the trial. Mr Watson also made submissions opposing the withdrawal application.

The determination of the withdrawal application on 14 October 2022

189. On that day, 14 October 2022, the primary judge gave the following ex tempore reasons and made a ruling:

“Mr Collins makes application that I withdraw my order denying leave to withdraw an admission. He has called evidence on this issue from Mr Edstein which I find inherently implausible. He has failed to explain the lack of the production of material from the file of his initial solicitors which may throw light upon the defendant’s present claim.

The withdrawal would be inconsistent with the statement made to the police and inconsistent with Mr Edstein's conduct at the coronial inquiry. I find that his son's evidence is impugned by the lapse of time between the event and his being asked to recall exactly what happened, he being asked to recall it only two days ago.

I may add to these reasons in the course of giving my judgment, but I refuse the application to withdraw the admission.”

The tender in the trial of the transcript of Mr Edstein’s evidence on the withdrawal application

190. Following the luncheon adjournment, Mr Collins tendered the transcript of Mr Edstein’s evidence on the withdrawal application as evidence in the trial. Mr Watson submitted that it was imperative that the specific passages of evidence which was tendered be identified so that objections to relevance could be made. After hearing from Mr Watson (but not the other parties), the primary judge indicated that he proposed to order that Mr Edstein’s evidence on the withdrawal application be evidence in the trial. The primary judge then apologised to Mr Morris for not hearing from him and proceeded to hear from Mr Morris. Mr Morris objected to the evidence on the application on the basis that it was not relevant to the issues at trial. Mr Lloyd submitted that it would be necessary for Mr Edstein to file an amended pleading which reflected the refusal of the withdrawal application and that he would not be in a position to indicate whether he objected to Mr Edstein’s evidence on the application being evidence in the trial until that was done. The Court adjourned until Monday 17 October 2022 to permit Mr Collins to prepare an amended pleading and for other purposes.

The filing of amended pleadings to give effect to the refusal of the withdrawal application

191. On Tuesday 18 October 2022, Mr Collins sought leave to file an amended defence to the further amended statement of claim in which paragraph 12 was deleted and substituted with the following:

“12.    [Mr Edstein] admits the allegations in paragraphs 30 and 31.

13.    [Mr Edstein] denies that he was at any time engaged in or undertook any activity associated with the memorial in his own right and admits that as an employee of [the Edstein company] he was involved in the erection and installation of the memorial.”

192. He also sought leave to file an amended defence to the amended first cross-claim in which Mr Edstein deleted what had been paragraph 9 and added the following:

“9.    [Mr Edstein] admits the allegations in paragraph 12 to 15.

10.    As to paragraph 12, [Mr Edstein] says that his involvement in the construction and erection of the monument on the premises was as an employee of [the Edstein company].”

The continuation of the debate as to the admissibility of the transcript of Mr Edstein’s evidence on the withdrawal application

193. The primary judge expressed a preliminary view that the transcript of Mr Edstein’s evidence on the withdrawal application ought be admitted. However, after hearing from the other parties (Mr Watson did not object to the tender but Mr Lloyd and Mr Morris did), the primary judge ruled that the transcript on the withdrawal application was not relevant and therefore not admissible. Mr Collins then indicated that he would call Mr Edstein to give evidence at the trial and did so.

Mr Edstein’s evidence in the trial

194. Mr Edstein gave evidence of the three people, including himself, who were present at the site when the monument was constructed and that, at the time, he was employed by the Edstein company. Mr Morris cross-examined Mr Edstein who admitted that, at the time of the construction of the monument, he was the only qualified stonemason in the Edstein company. Mr Collins was granted leave to ask further questions and elicited from Mr Edstein the evidence that he was not present when the monument was installed, notwithstanding what was in his police statement.

Mr Collins’ further attempt to tender the transcript of Mr Edstein’s evidence in the withdrawal application in the trial

195. During closing address, Mr Collins sought to re-open Mr Edstein’s case to tender parts of the transcript of Mr Edstein’s evidence on the withdrawal application, which related to the use of silicon sealant in circumstances where a structure is intended to be temporary. The portion he sought to tender derived from the cross-examination by Ms Coventry (junior counsel for the plaintiffs) as follows:

“Q. Is it the case that you would not use silicone bonding compounds as a stonemason?

A. There are some applications where you can use it and some places where you wouldn't use it.

Q. Right. Could you just tell his Honour about that?

A. If you erect a granite headstone on a base and it has to be removed for another inscription, then it's quite common, right throughout the trade, to use silicone, so that it can be removed. And that's - that's when silicone is – is used.”

196. Mr Collins contended that this evidence supported the hypothesis that the Club wanted the monument to be erected in a temporary fashion to enable it to be moved, which explained why silicon was used to fix the dowels in place rather than concrete. He submitted that, in the absence of evidence about the terms of the retainer between the Club and the Edstein company, it could not be assumed that the Edstein company did other than what it had been retained to do.

197. Mr Morris objected to the tender. He also inquired of Mr Collins whether the case theory he had just outlined had been put on instructions (to which Mr Collins answered in the negative). Mr Morris also noted that no such case had been pleaded or addressed by Mr Edstein in his evidence. Mr Lloyd also objected and indicated that he might have conducted his case on a different basis had he apprehended that the case theory was to be raised. The matter concluded with the following exchange:

“COLLINS: Your Honour, just to correct - when I opened on this topic, I said it only dawned on me out of the evidence that has been adduced in these proceedings, really, yesterday afternoon.

HIS HONOUR: I appreciate that.

COLLINS: But our assumption that this was a permanent structure just was fundamentally wrong.

HIS HONOUR: Yes.

COLLINS: And Mr Edstein hasn’t given me any instructions on it, it’s not something put to me, it’s not something that any thought existed until yesterday afternoon.

HIS HONOUR: Yes. However, Mr Edstein hasn’t helped himself because he was in a position, if he so choose, to say, ‘Yes, I was there and I understood it to be temporary and this is what I did’.

COLLINS: Your Honour, he attempted to do that, with respect.

HIS HONOUR: No, he didn’t. Anyway, I think it’s too late because forensic elections have been, no doubt, made in circumstances where this had not been raised. Quite ingenious of you, but at this stage, it’s too late.

COLLINS: I’m sorry, the evidence is rejected, your Honour?

HIS HONOUR: Yes.

COLLINS: I still make the submission, your Honour.”

Mr Edstein’s notice of contention on the cross-appeal

198. Although there are five separate grounds in the notice of contention, Mr Collins submitted that they were related. I understood him, in effect, to submit that he would address them together because of the consequential effect of the revocation of the original grant of the withdrawal application. I understood Mr Collins to have submitted, in substance, as follows:

1. it was unfair to hold Mr Edstein to admissions in the pleadings when the solicitor who drafted the pleadings had since died and, accordingly, was incapable of explaining why the admissions had been made, or what instructions had been given (as no file notes were said to be available);

2. the basis of the primary judge’s decision to revoke the original grant of the withdrawal application (that to grant it would prejudice CGU, which had not, given its reliance on the admissions, had an opportunity to interview the other two men who were present when the monument was delivered to the Club’s property to be installed) was erroneous because those inquiries could not have changed CGU’s position as CGU would, in any event, have been obliged to provide indemnity to the Edstein company and to any of its employees who were involved in constructing the monument;

3. the Club failed to discharge its onus of proving the terms of its retainer of the Edstein company to construct and install the monument;

4. because of (3), it could not be assumed that the monument was intended to be permanent rather than temporary;

5. the inference that the Club intended the monument to be temporary was supported by the following:

1. the original drawing prepared by the Club for the monument depicted the monument in a different location and facing in a different direction from the drawing which was submitted in support of the amended DA, from which it could be inferred that the Club was having difficult in obtaining liability insurance for the monument in its original position (because it would require attendees to congregate on the road, which would require additional insurance) and wanted it to be in a different position and, accordingly, wanted it to be portable;

2. the Edstein company was a “highly regarded, respectable stonemasonry company” and one would not lightly infer that it would do something as negligent as to use silicon sealant on a structure, such as the monument, if it was intended to be a permanent structure, or that the Edstein company did other than that which it was contracted to do;

6. by rejecting the tender of the whole of the evidence of Mr Edstein on the withdrawal application in the trial or, in the alternative, his evidence about the use of silicon for temporary structures, the primary judge erred in depriving Mr Edstein of the opportunity of the case set out in (3), (4) and (5) above;

7. had the primary judge admitted the evidence referred to in (6), his Honour could not have found that Mr Edstein was negligent and was wrong to make that finding; and

8. the primary judge’s finding that the scope of Mr Edstein’s liability did not extend to the plaintiffs’ harm was, thus, moot, since Mr Edstein was not negligent.

Ground 1 of the notice of contention: alleged error in revoking the grant of the withdrawal application

199. Mr Collins accepted that it was necessary for him to show a House v The King (1936) 55 CLR 499; [1936] HCA 40 error at least with respect to the primary judge’s decision to revoke the original grant of the withdrawal application.

200. As is evident from the transcript summarised above, the primary judge originally granted the withdrawal application without hearing from the other parties. In these circumstances, it was appropriate, and necessary in order to accord procedural fairness, that the grant be revoked to permit the other parties to address the primary judge on why the withdrawal application ought not be granted. This course was sufficient to remedy the denial of procedural fairness occasioned by the original grant. The primary judge then proceeded to consider the withdrawal application afresh, in light of the submissions and evidence of all of the parties.

201. The evidence which was before the primary judge on the withdrawal application was, principally, Mr Edstein’s evidence that he had been directed by the Edstein company not to do anything of substance with respect to the monument apart from showing the way to the Club’s property. The primary judge did not accept that evidence, which was inconsistent with Mr Edstein’s admissions made not only in the pleadings but also in the police statement he had given prior to the inquest when he had had the benefit of legal advice. Further, the matters raised by Mr Collins – that Mr Edstein was not involved at all in the installation of the monument – amounted to a completely new case which the other parties had not had a chance to meet. As was evident from the transcript which I have summarised above, had the withdrawal application been granted, it would have been necessary, in order to accord procedural fairness to the other parties, to entertain applications for leave to amend. This would, inevitably, have added to the cost and time of the proceedings and required an adjournment of the hearing to permit the additional issues to be explored.

202. Further, it was open to the primary judge to take into account that no evidence was adduced by Mr Edstein of the instructions he had given the solicitors who had acted for him in the inquest and that the inference could be drawn that such evidence would not have assisted his case.

203. In all the circumstances, it was open to the primary judge to revoke the grant of the withdrawal application and, indeed, to refuse it. Mr Collins has not established that the primary judge’s discretion either to grant or refuse the withdrawal application miscarried or identified any matter which was taken into account which ought not to have been taken into account or which was not taken into account but ought to have been. Nor has Mr Collins identified any error of principle.

Grounds 2 and 3 of the notice of contention: alleged error in rejecting Mr Edstein’s evidence on the withdrawal application, in whole or in part, in the trial

204. Mr Collins’s submission that the primary judge ought to have admitted in the trial the whole of Mr Edstein’s evidence in the withdrawal application amounts to an attempt to cavil with the primary judge’s refusal of the withdrawal application. Much of Mr Edstein’s evidence on the withdrawal application was inconsistent with the admissions, in respect of which leave to withdraw was refused. As the narrative set out above indicates, Mr Collins was given an opportunity to adduce oral evidence from Mr Edstein in the trial. In so far as the evidence sought to be adduced was inconsistent with the admissions, it was (correctly) rejected. However, Mr Collins did not seek to adduce evidence from Mr Edstein which was not inconsistent with the admissions made. Therefore, there was no procedural unfairness to Mr Edstein in the rejection of the evidence. Further, Mr Edstein’s evidence was largely irrelevant to the case pleaded by him and was therefore inadmissible.

205. Ground 3 concerns the rejection of that portion of Mr Edstein’s evidence extracted above about the circumstances in which silicon sealant can properly be used on monuments. The “reasoning” employed by Mr Collins to persuade this Court that the evidence ought to have been admitted must be rejected. It was no part of Mr Edstein’s pleaded case that he was not negligent because the Club had only wanted the monument to be a temporary one. Further, as Mr Collins confirmed, Mr Edstein had not even instructed Mr Collins that that was the case.

206. Mr Collins has failed to demonstrate any basis on which that portion of Mr Edstein’s evidence was admissible. It was irrelevant to the pleaded case. Grounds 2 and 3 of the notice of contention have not been made out.

Ground 4: alleged error in not finding that the monument was constructed in accordance with the Club’s retainer of the Edstein company

207. Mr Collins’ submission in support of ground 4 was that the starting point must be that a reputable company would not act in an apparently negligent fashion unless its retainer required it to do so. Although he did not expressly refer to the presumption of innocence, his submissions implicitly resorted to it. In a criminal trial, the accused is presumed to be innocent and the prosecution is required to rebut that presumption beyond reasonable doubt before the accused can be found to be guilty. Unless the prosecution has excluded all non-fanciful hypotheses which are consistent with innocence (which need be raised, but not proved, by the accused), the presumption of innocence continues to apply and the accused must be acquitted. The presumption has no application in civil proceedings.

208. The plaintiffs bore the onus of proving that Mr Edstein had constructed the monument negligently. They discharged this onus by proving that Mr Edstein had constructed the monument (by reference to his admissions in the pleadings and in his statement to police). They proved that it had been constructed negligently through the joint experts.

209. In his final submissions in the Court below and in this Court, Mr Collins raised a hypothesis consistent with non-negligence: that the Club required the Edstein company to construct the monument in a way which would enable it to be portable, by affixing the headstone with silicon sealant. However, unlike in a criminal trial, if such a case was to be made, it needed to be pleaded and proved by evidence. There was no hint in the pleading that this case was sought to be made (and nor could it have been since it only occurred to Mr Collins in the course of final submissions). The evidence for such a case could not merely be that silicon is sometimes used where monuments are intended to be temporary (such as when one of two spouses dies in circumstances where it can be expected that the other will die soon and the headstone will have to be removed to permit the second spouse’s name to be engraved on it). The evidence would, at least, need to rise to the level of establishing that the Club actually instructed the Edstein company to install the monument in a way that would permit it to be moved. That the Club submitted drawings to the Council that depicted the monument in slightly different proposed locations did not indicate that it was intended to be temporary: it was installed once and for all in the location in which it remained until it collapsed, 19 years later.

210. For these reasons, ground 4 has not been made out.

Ground 5: alleged error in finding Mr Edstein negligent

211. The finding of negligence against Mr Edstein was, in effect, mandated by the joint experts. Nor did Mr Collins seek to persuade that primary judge that, if the monument was intended to be a permanent structure, it was other than negligent to construct it in the way in which it had been constructed. Indeed, his submission suggesting that it must have been temporary because, in effect, no reputable stonemason would otherwise have constructed it in the way it was constructed, implicitly accepted negligence. Further, Mr Edstein’s own attempts to distance himself from its construction were consistent with an acceptance on his part that it had been negligently constructed. Ground 5 has not been made out.

Other matters

Apportionment and costs

212. Because of the conclusion to which I have come that the Club was not negligent and is, accordingly, not liable to the plaintiffs, there is no need to consider the question of apportionment. As the Club did not seek an order that Mr Edstein pay its costs of the plaintiffs’ claim against it, it is not necessary to address that question. Otherwise, the Club seeks orders that costs follow the event, both on the main claim and on the cross-claim. I see no reason to depart from the general rule that costs ought follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.

Proposed orders

213. I propose the following orders:

In respect of the appeal:

1. Allow the appeal.

2. Set aside orders 1, 2 and 3 of the Court below entered on 27 October 2022 and 1, 2 and 3 of the Court below entered on 3 February 2023.

3. In lieu of the orders in (2) above, make the following orders:

1. Judgment for the first defendant against the plaintiffs.

2. Order the plaintiffs to pay the first defendant’s cost of the proceedings.

4. Order the respondents, other than the ninth respondent, to pay the appellant’s costs of the appeal.

In respect of the cross-appeal:

1. Allow the cross-appeal.

2. Set aside order 2 of the Court below entered on 27 October 2022 and, in lieu thereof, make the following orders:

   1. Judgment for the plaintiffs against the second defendant.

   2. Order the second defendant to pay the plaintiffs’ costs of the proceedings.

3. Order the respondent to the cross-appeal to pay the cross-appellants costs of the cross-appeal and the appeal.

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Decision last updated: 09 November 2023