Dunmall v O'Sullivan [No 6] - [2014] WADC 61

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DUNMALL -v- O'SULLIVAN [No 6] [2014] WADC 61

CORAM: O'NEAL DCJ

HEARD: 2-6 DECEMBER 2013 & 20 FEBRUARY 2014

DELIVERED : 9 MAY 2014

FILE NO/S: CIV 232 of 2006

BETWEEN: GEOFFREY DUNMALL
Plaintiff
AND
MARIE O'SULLIVAN
First Defendant
TERRENCE ALLDEN WALSH
Second Defendant
SHIRE OF MURRAY
Third Defendant

Catchwords:

Torts - Negligence - Balcony collapse - Scope of duty of care of home owner

Torts - Negligence - Balcony collapse - Causation - Role of ungalvanized bolts in collapse - Duty of care of builder

Torts - Negligence - Balcony collapse - Faulty design approved for building licence - Role of local authority in granting building licence - Duty of care - Causation - Turns on own facts

Legislation:

Builders' Registration Act 1939 s 374, s 401 s 401A
Civil Liability Act 2002
Law Reform (Contributory Negligence & Tortfeasors Contribution) Act 1947 (WA) s 7
Local Government Act 1939 s 374
Occupiers Liability Act 1985 s 5
Uniform Building By-Laws 1974 pt 41

Result:

Plaintiff's claim against first defendant dismissed
Judgment for the plaintiff against the second and third defendants
Second defendant's claim for contribution and indemnity against the first defendant dismissed
Second defendant's claim for contribution and indemnity against the third defendant allowed
Third defendant's claim for contribution and indemnity against the first defendant dismissed

Representation:

Counsel:

Plaintiff:     Mr B P Wheatley
First Defendant            :     Mr D R Clyne
Second Defendant        :     Ms K J Levy (2 - 6 December 2013)
Third Defendant           :     Mr J Eller

Solicitors:

Plaintiff:     Mossensons
First Defendant            :     DLA Piper Australia
Second Defendant        :     Kitto & Kitto & Danaghers (20 February 2014)
Third Defendant           :     John Eller

Case(s) referred to in judgment(s):

Bryan v Maloney [1995] HCA 17; (1995) 182 CLR 609
Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181
Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182
Voli v Inglewood Shire Council (1963) 110 CLR 74

O'NEAL DCJ:

Introduction

The plaintiff, Geoffrey Dunmall and his wife have been friends of the first defendant Marie O'Sullivan for about 38 years. In 2004 they all lived in South Yunderup. Both houses were in sight of the canal, near to Peel Inlet, and fairly close to the sea. The first defendant lived in a two storey house constructed in 1983 that featured a balcony,10 m long and 2.4 m wide (or deep), attached to the upper storey. The balcony overlooked the canal.
On New Year's Eve, 31 December 2004, Mrs O'Sullivan entertained a number of her friends, including the plaintiff and his wife, at her home at 12 Kiap Road, South Yunderup.
Shortly before midnight the plaintiff followed two other guests out onto the balcony. The balcony should have had the capacity to accommodate the weight of about 50 people or perhaps more. However, as soon as the plaintiff stepped onto the balcony it collapsed, carrying the three guests 3 m to the ground. Subsequent examination showed a catastrophic failure of the bolts and timber in the connections supporting the joists on one side of the balcony.
There is no doubt that the design of the balcony failed to meet the structural standards in place at the time. Despite that, the third defendant approved the Plans and Specifications and granted a building licence. As bad as the design was, the safety of the balcony was further compromised when it was constructed by a company connected with the second defendant with bolts that were smaller than those stipulated. Still worse, the bolts used lacked the corrosion resistance required by the approved design.
The plaintiff suffered some significant physical injuries during the collapse. He now sues for damages for personal injury allegedly arising from the negligence of each of the defendants. The second defendant claims contribution and indemnity against the first and third defendants. The third defendant claims contribution and indemnity against the first defendant.
On 28 November 2012 Deputy Registrar Hewitt ordered that the issue of liability be tried as a preliminary issue. These are my reasons on the questions relating to liability.

Background

In early 1983, a Mr Alexander MacNaghten owned the property described as Town Lot 320, in the District of South Yunderup, in the Shire of Murray. From the documents tendered at trial it would appear that until 1983 Town Lot 320 was bare land. This property was later to become No 12 Kiap Road.
It also appears that in 1982 Mr MacNaghten and someone described as 'V Pay' engaged Smithin & Nicholson Architects of Dalkeith Western Australia. Smithin & Nicholson prepared a set of plans (the Plans) and a set of specifications (the Specifications) for a 'proposed residence at lot 320 Kiap Road, South Yunderup'.
On 2 February 1983 Mr MacNaghten applied for a building licence to construct a new two storey brick and tile dwelling on lot 320. The estimated value was $50,000. In the line of the application where the builder's name should have been disclosed someone has hand printed in, 'Subject to results of tender'.
At some point in the process prior to 2 March 1983, the third defendant, The Shire of Murray, received a set of the Plans and Specifications in connection with the proposed development prepared by Smithin & Nicholson.
The Plans show a two storey, three-bedroom-house. There is a brick paved verandah facing the canal at ground level. Above that on the level of the first floor is the balcony, running 10 m along the width of the back of the house. The elevations appear to show that the deck of the balcony is slightly less than 3 m above the ground below.
The document containing the Specifications is also labelled 'Proposed Residence at Lot 320 Kiap Road, South Yunderup, for V Pay and A MacNaghten'. The cover sheet and the contents of a page entitled 'Information to Tenderers' suggests that the architect intended that these Plans and Specifications would form part of a request for tenders and in due course a contract for the construction of the house.
Section 'G' of the Specifications is entitled 'Carpentry'. Under the subheading 'General' the document advises, 'Timber and workmanship shall conform to AS 1684 Light Timber framing code, unless otherwise specifically stated. All roofing timbers are based upon F14 or better and shall be selected from WA hardwoods. All external timbers and stud walls shall be Jarrah F11 or better'.
Under the subheading 'Fastening', the Specification says, 'all fastenings throughout shall be galvanized. All bolts, unless otherwise shown shall be 10 mm cup heads with washers and nuts housed in (with a wood bit of washer size) where visible. Trip L grip fastenings shall be used in preference to nailing where practicable. All wall plates shall be bolted to walls at 900 centres using a 10 mm diameter tiger bolt or similar expansive fixing'.
Section D of the Specification deals with 'Structural Steelwork'. The subsection 'Rustproofing' allows the use of 'cadmium plated' bolts in circumstances where the completed steelwork will be protected from 'outside weather conditions'.
According to one of the expert witnesses who gave evidence, Mr Trevor Saleeba, an architect, section G provides the relevant specifications for the carpentry work and fixings, including the balcony, not section D. That opinion, given without objection, in fact coincides with what appears to me to be the proper construction on a plain reading of the two sections.
Then as now, no one could construct a building within the boundaries of a local government unless they had received a building licence from the relevant local government authority: Local Government Act1960 s 374. That required the submission of an application in the prescribed form, together with, 'a copy of the specifications of, and a plan showing clearly, the building or the buildings proposed to be built'. So long as the plans and specifications submitted in support of an application for building licence conformed to the bylaws and policies of the particular local government then the building surveyor did not have the power to refuse to approve the plan and specifications without first obtaining the consent of the council: Local Government Act s 374(1)(b).

Building approval

Applications for building approval by the Shire were governed at the time by the Uniform Building By-Laws 1974. Timber structures like the balcony came under Group VI, pt 41 of the By‑Laws. In 1982 By‑Law 41 was amended and those amended provisions were in effect at the time that approval was being sought for the Kiap Road residence. In 1983, the By‑Law as amended provided as follows:
GROUP VI – STRUCTURAL PROVISIONS
PART 41 – TIMBER CONSTRUCTION
Buildings to Comply with this Part
41.1      Where the construction of a timber or timber framed building is authorised within the meaning of section 399 of the Act that building shall comply with the provisions of this Part.
Design and Construction
Structures of Timber
41.2(1)        All structures and members of timber shall be —
(a)designed and constructed in accordance with the principles of structural mechanics;
(b)capable of sustaining the most adverse combination of loads to which they will be subjected in accordance with the provisions of these by‑laws.
Australian Standards or Table 41.2
Deemed to Satisfy
(2)        The requirements of sub‑bylaw (1) shall be deemed to be satisfied when structures and members of timber comply with the relevant provisions of —
(a)Australian Standard 1684 being item 40 of the First Schedule;
(b)Australian Standard 1720 being item 41 of the First Schedule; or
(c)in the case of a structure or member other than a wall exceeding one storey in height, Table 41.2.
Certificates of Engineers and
Others
(3)        In the case of any proposal to build under the provisions of this Part, where the council is not able to satisfy itself beyond doubt that the whole or any part is acceptable, it may require the submission of a certificate from a practising structural engineer, or other person or body, approved by the council-
(a)certifying that when completed the construction will be structurally sound; and
(b)setting forth in detail the bases on which it is given and the extent to which the engineer, person or body has relied on relevant specifications, rules, codes of practice or publications in respect of the construction.
The unchallenged evidence before me is that the plans and specifications with respect to the construction of the balcony did not meet the 'deemed to be satisfied' provisions of s 41.2 (2) or the principles of structural mechanics referred to in s 41.1 (1) . The evidence is in fact, for reasons I will explain later, that the balcony as designed represented a gross departure from the principles of structural mechanics and the provisions of the Australian Standards imposed by the Uniform Building By‑Law.
The Shire did not however refuse to approve the plans and specifications or refuse to grant the building licence. Nor did it exercise its power pursuant to By‑Law 41.2 (3) to require the submission of a certificate from a practicing structural engineer, or indeed from anyone. Instead, on 2 March 1983, the Shire approved the plans for the proposed residence at Lot 320 Kiap Road, South Yunderup. Approval was granted, 'subject to building licence being obtained and subject to all current by‑laws'. The approval was signed under number 1840 by a building surveyor for the Shire.
On 3 March 1983 a building licence was granted. Mr MacNaghten signed the licence on a line on the form next to the printed word 'OWNER' and immediately above the words, 'LICENCE TAKEN BY BUILDER' (space appears in original document). This fact formed the basis for repeated assertions by counsel for the second defendant that Mr MacNaghten was an 'owner/builder' for the purposes of provisions of the Builders' Registration Act 1939 that I will refer to later. In the space provided on the licence for 'name and address of registered builder' however, the words 'subject to results of tender' were typed in. The licence was granted, 'in accordance with the plans and specifications approved by the Building Surveyor and Subject to the provisions of the Building By-Laws made under the Local Government Act 1960'. The licence is signed by a Building Surveyor for the Shire.
There are conditions of approval that are attached to the building licence. They are provided for in a form with many optional standard conditions, with a box to be ticked for the particular conditions that apply to that licence.
One condition noted to apply here is number 6(ii), 'satisfactory penetrometer test of compacted fill to be submitted to Building Surveyor prior to pouring of concrete'.
Another condition that applied was number 7, 'Signed engineering details required for retaining walls. Freestanding asbestos and similar types of boundary fences are prohibited for use as a retaining wall'. Condition number 10 applied, 'Inspection of Excavations.' This condition required 24 hours' notice to be given to the Surveyor of the Shire of any intention to place footings. An inspection of 'Slab reinforcement' was also required.
Condition 18 was applied. That required the roof framing to be inspected and passed by a building inspector prior to roof cladding commencing.
The standard form provides space for further conditions to be written in, and several were. Other Shire documents show that a footing inspection certificate was granted on 21 March 1983, certifying that the footing trenches had been inspected and appeared to be in accordance with the requirements of the building licence. There was also a subsequent slab inspection on 24 March 1983.
Notably, while 'signed engineering details' were thought necessary for 'any' retaining walls, no such requirement was imposed in respect of the large elevated balcony of this canal side, two storey house.
On the face of the building licence there is a box in the upper left‑hand corner with this typed in in relatively bold letters, 'NOTE: DEPARTURE FROM APPROVED PLANS: No variation from or alteration of approved plans and specifications shall be made by any builder without the written consent of the Building Surveyor'.

The builder

In 1983 the second defendant, Terrence Walsh, was the director of a company called Terrence Construction Pty Ltd. Terrence Construction was incorporated in 1979. Although Terrence Construction carried on business as a builder in Western Australia in 1983, it did not itself hold registration as a builder under the Builders' Registration Act until 21 November 1985. The second defendant however became a registered builder on 25 September 1980 and remained one until at least November 2013.
The plaintiff's case (as it emerged from the pleadings and the conduct of the trial) is that Terrence Construction built the house at 12 Kiap Road after contracting with Mr MacNaghten. Further, the plaintiff says the work was either carried out under the supervision of the second defendant or that pursuant to s 10C of the Builders' Registration Act it should have been managed and supervised by him as the only registered builder then apparently connected to Terrence Construction.
No witness connected with the original construction of 12 Kiap Road was called by the plaintiff. No executed copy of a construction contract was produced. Given the passage of time that is not surprising.
The submission on behalf of the second defendant is that while there is evidence that shows that Terrence Construction played some role in the construction of 12 Kiap Road, the evidence is not sufficient to establish that Terrence Construction was engaged to do anything more than limited or discrete parts of the building work and is not sufficient to show that the second defendant supervised the construction of the balcony or had, or should have had, any overall responsibility for managing and supervising the building work. The argument was expressed at one point as 'insufficient evidence to infer that the supervisor role within the meaning of the Builders' Registration Act fell to the second defendant'.
Some evidence about the role of Terrence Construction was found in the records of the third defendant. The third defendant discovered its file relating to documents that it had prepared or used in the course of receiving the application for building licence and the building licence itself. That included the Application and Building Licence and the Plans and Specifications already referred to. There was a document that showed compliance with one of the conditions of the building licence. There were some other later documents that the Shire received and used in considering an issue that had arisen as to whether the builder was seeking to depart from the approved plans in one particular.
Ultimately, all of these documents were tendered without objection, properly in my view, in accordance with s 79C of the Evidence Act 1906.
With respect to the documents kept by the Shire, first, it seems obvious that it was the intention of Mr MacNaghten and his architect to engage a builder for the whole of the work. So much is apparent from the form of the specifications which include 'Information for Tenderers' and provisions for execution of that document by 'the Proprietor' and 'the Builder'. Both the application for a Building Licence and the licence itself anticipate the appointment of a builder.
Subsequently, on 24 March 1983, compaction tests were carried out by Waroona Contracting at lot 320 Kiap Road. Waroona Contracting was engaged and completed their penetrometer tests within three weeks of the grant of the building licence. A compaction certificate was provided in accordance with one of the conditions of approval. The client identified by Waroona Contracting in the certificate is 'Terrence Constructions'.
The next document in the Shire's file is a letter from Smithin & Nicholson Architects to Mr MacNaghten on 1 June 1983 that relates to an allegation that the builder was proposing to depart from the approved plans. The letter refers to a request that had been made by Mr MacNaghten to the architects '… to explain the construction of a gable wall under the carport roof; and your Builder's refusal to construct a wall …'. The architects offer several comments about this including the following:
It is implied in the intent of the Specification and the Conditions of Contract that the Building be completely finished. For the Builder
to contemplate a major omission of work from the Contract is untenable.
… In addition to the above and following your telephone discussion I wish to state that absolutely NO inquiry regarding the gable detail has been made to me by the builder, either before or since the close of tenders.
The architects offer their comments about what they had been told as to the builder's interpretation of certain specifications and drawings relating to this particular aspect of construction. The architects concluded:
It would seem that the Builder has made an error at the tender stage in allowing for ceiling lining and hence no provision for gable framing and lining …, that error has persisted and the gable has not subsequently been framed.
I would suggest that the Builder has no option but to immediately make good this defect.
The musings of the architect as to how it is the builder had gone wrong are of course not to the point. Rather it is the revealed fact, from someone who should know, that there was a tender process resulting in the selection of a builder, fulfilling what was represented to the Shire when building approval was being sought.
On 4 June 1983 the architects' letter was copied to 'The manager, Terrence Constructions Pty Ltd-Attention Mr T Walsh' (emphasis in original) by Mr MacNaghten. Mr MacNaghten's covering letter as well as the architects' advice was copied to the Shire of Murray. In essence the dispute was as to how or whether the eaves of the carport attached to the house were to be completed, and whether a gable was required. Mr MacNaghten's letter refers to a conversation that he had, '... with Mr Peter Walker on 30^th March 1983 concerning the lining of the eaves and the carport'. Mr MacNaghten continues:
Among other things, Peter said – 'We're having trouble working out how to effectively line the eaves to the east side and the carport'. Peter was advised that the query would be referred to the architects and that we would phone back as soon as possible with further information. This was done approximately 20 minutes later and the advice was that neither the eaves or the carport were to be lined.

Whether Peter Walker actually held that view is of no consequence. It is the fact that he was present at site and had a discussion with the owner of the property.
After further arguing the point about the need for a gable end to the carport as opposed to linings to the eaves, Mr MacNaghten asks that the eastern gable end be completed, 'without further delay'. He goes on to say:
We note that a full timber door has been fitted to the laundry area. This would not appear to be in accordance with the plans, (Drawing 1, bath\laundry, elevation 2), which shows a door with two glass panels. We ask that this be rectified.
In a further letter to the Shire of Murray by Mr MacNaghten, and received by the Shire on 10 June 1983, Mr MacNaghten refers to the dispute that has arisen:
Further to our recent telephone conversation with your office, we confirm our query concerning the construction of the above residence. The builder is Terrence Construction Pty Ltd and up to this point the contract has proceeded reasonably well. However, we have now encountered a problem which is causing us considerable concern. It relates to a gable end to the eastern elevation over the second bedroom. The builder is refusing to construct the gable end on the grounds that it is insufficiently defined on the plans. We argue that such a refusal goes against the basic intent of the contract and will mean that the house will not be secure or weather proof. We believe that the gable end forms an integral part of the building as per the plans and specifications approved by your office. We enclose herewith copies of the following relevant correspondence ….
Mr MacNaghten asks for the advice of the Shire, 'as the approving authority' as to whether the house without the enclosed gable would conform either with the Uniform Building By‑Laws or the plans and specifications approved by the Shire.
On 4 July 1983 the Shire clerk responded to Mr MacNaghten, advising him that no occupation of the building would be allowed until the gable end was constructed. The retention of the earlier correspondence by the Shire is understandable in the context of the fulfilment of their obligations as the local authority.
It would seem that the builder relented because ultimately the house was occupied.
I have referred to the position of the second defendant on the issue of who was responsible for the construction of 12 Kiap Road, and the management and supervision of the construction work. The submission ultimately was that it was open for me to conclude that multiple builders might have been engaged, and (relying on the content of the letters that I have referred to) that beyond an inference that Terrence Construction was engaged to build the gable end, it could not be inferred that Terrence Construction had undertaken the construction of the entire house, and of course, the balcony. According to counsel, 'there's no evidence to support it'.
I reject that submission. Quite apart from evidence that I will refer to in a moment about the position of the second defendant, the evidence here shows that Mr MacNaghten and the architect were always anticipating that a builder would be engaged, they advised the Shire of that, the Building Licence was seemingly obtained on that basis, and in subsequent correspondence the Shire was advised that that had occurred, naming the builder. Other documents show that Terrence Construction was involved from the foundations of the house (the Compaction certificate), to the interior fit‑out (the timber door in the laundry area) to the external details (the lining of the eaves of the house and carport and the gable end). The tone of the correspondence is not that of an owner builder directing a contractor engaged in some discrete piece of the building work: it is that of an owner and his architect insisting on compliance with the terms of an agreement represented by the plans and specifications approved by the Shire.
Far from there being 'no evidence' to prove that Terrence Construction was 'the builder' engaged to construct the house, there is abundant evidence. I am easily satisfied on the balance of probabilities that that was the case.
The further submission made by counsel for the second defendant is that in any event I could not be satisfied that the second defendant had or should have had 'the supervisor role within the meaning of the Act', that is, the Builders' Registration Act (reprinted 10 February 1981), and responsibility therefore for the management and supervision of the construction of the house at 12 Kiap Road.
The argument for the second defendant is somewhat confusing in that regard. At least in part the submission seemed to be that the building licence was granted to Mr MacNaghten as an 'owner/builder' (disregarding the evidence of his repeated advice to the Shire that a registered builder was to be appointed), therefore the ultimate responsibility for ensuring that the house was completed in accordance with the plans and specifications was Mr MacNaghten's, and therefore the second defendant could not be found to owe any duty of care to occupiers of or visitors to the house.
In my view this submission is the result of a misunderstanding of the provisions of the Builders' Registration Act.
Section 4 of the Act provides at subsection (1):
Subject to this section a person who is not registered under this Act shall not –
(A) (a)construct either for himself or any other person, any building for the purpose of the immediate sale thereof;
(aa)construct for himself any building other than a dwelling house or a building comprising two dwellings on ground level, each being complete and self‑contained, whether or not the building is so designed as to give an external appearance of a single dwelling;
(b)enter into any contract or engagement to construct any building, or build any building for another in pursuance of any contract or engagement;
…
Section 4A of that Act prohibited any local authority from issuing a building licence to any person not registered under the Builders' Registration Act, with certain exceptions. One exception was where the total fee involved for carrying out the building did not exceed $6,000. The application for a building licence here shows that the anticipated cost of the work was eight times that amount. Another exception is as follows:
(c)Unless the person to whom such a building licence is issued is proposing to construct the building to which the building licence relates for himself and not for the purpose of the immediate sale therefore; and –
(i)the building to which the building licence relates is a dwelling house or a building comprising two dwellings on ground level, each being complete and self‑contained, whether or not the building is so designed as to give an external appearance of one dwelling … ; and
(ii)the person to whom the building licence is issued has furnished the local authority with a statutory declaration verifying the fact that he has not, within the last preceding two years, obtained from that or any other local authority the issue of any other building licence pursuant to this paragraph.
The second defendant's written trial submissions refer to the opening words of s 4A(1) but omit any reference to the two provisos (i) and (ii) that follow. No submission was made by counsel for the plaintiff as to the proper construction of s 4(c) or its application to the facts here. Based on my observations with respect to the conduct of the trial, that was not the result of any considered forensic decision.
An argument might be made that the exception created by s 4(c) did not apply to the construction by an owner/builder of anything more than a one storey house containing up to two dwellings. There is in any event no evidence here that Mr MacNaghten really did seek approval to be allowed to construct 12 Kiap Road as an 'owner/builder'. The Shire has provided the documents that it received. There is no statutory declaration of the kind required by s 4(c)(ii). There is of course Mr MacNaghten's repeated advice to the Shire that the designation of a builder or a registered builder was 'subject to results of tender'.
In any event, I am satisfied that it was not Mr MacNaghten who 'constructed' or managed or supervised the construction of 12 Kiap Road but Terrence Construction and its representatives, and that it did so pursuant to a contract to construct within the meaning of s 4(1)(A)(b) of the Builders' Registration Act. There is a question as to whether it was entitled to do so when the company itself did not hold registration under the Builders' Registration Act. The company having agreed to do so however, a further provision of the Builders' Registration Act is engaged.
Section 10C of the Builders' Registration Act provides as follows:
Where any building work is carried out by a company or body corporate, the company or body corporate shall cause the building work to be managed and supervised by a director of the company or member of the board of management of the body corporate, as the case may be, who is registered under this Act, or by an employee who is also registered … .
Section 10CA of the Act provided as follows:
The requirement for the management and supervision of any building work prescribed by section … 10C of this Act shall not have been complied with unless it can be shown that the management and supervision was sufficient to ensure that the whole of the building work was carried out in a proficient and workmanlike manner.
Pursuant to the provisions of Builders' Registration Act s 10C, Terrence Construction and its directors were required to ensure that the construction of 12 Kiap Road was 'managed and supervised by a director of the company … who is registered under this Act or by an employee who is also registered …'.
The overall scheme of the Builders' Registration Act is to ensure that substantial buildings are only constructed by those who have satisfied the Builder's Registration Board of Western Australia of their competence to do so, and that the construction of buildings of any consequence is managed and supervised by persons so qualified. The underlying legislative objective of public safety is plain.
Earlier in these reasons I referred to Mr MacNaghten's letter to Mr T Walsh of 4 June 1983. It is apparent from the content of that letter that Mr MacNaghten was dealing with a Mr Peter Walker on site on 30 March 1983 and that Peter Walker was seemingly a point of contact on site for Mr MacNaghten. When Mr MacNaghten wanted to ensure compliance with the terms of the plans and specifications however, he wrote to 'The Manager – Mr T Walsh'.
In February 2010 there was a hearing before the principal registrar. The second defendant was examined on oath about some matters relating to this action, in particular whether Terrence Construction built the house at 12 Kiap Road and who the insurer for that company was at the time.
A portion of the transcript of that hearing was the subject of some interrogatories administered to the second defendant by order of her Honour Judge Davis in December 2011. In the answers to the interrogatories that were tendered at the trial, the second defendant admitted that the contents of the transcript annexed to the interrogatories, 'are consistent with my recollection of the answers that I gave before Principal Registrar Gething …'. At that examination the second defendant was asked these questions and gave these answers:
Mr Walsh, you have seen that document there in front of you. Were you involved or does that trigger your memory as to whether you were involved in the construction of that house?---What date was it constructed?
1983?---I think I built two homes out in that particular South Yunderup area in my whole experience as a builder in Mandurah. So that may have been one of them, I really can't remember. It is a long time …
One for Mr MacNaghten, remember him?---That name rings a bell, yes.
Alright. Then that's the property that letter shows correspondence to you from Mr MacNaghten in relation to the particular property?---Yes. That may be the case.
…
Alright. I have a company extract here that shows you being a director of Terrence Construction. You are aware of Terrence Construction, aren't you?---Correct.
Alright. And that was your building company?---Yes. But there was Terrence Constructions or Terrence Construction, so you are getting me confused.
Well, let's just pause there. Terrence Construction, without an 'S', was the building entity you used in Mandurah for a number of years, was it not?---I think so, yes.
You think so,---Yes.
Alright. You are sure of that?---Yes.
…
Alright. Thank you. And Terrence Construction, without an 'S', was the company which you used to build the property for Mr MacNaghten at Lot 320, 12 Kiap Road in South Yunderup?---That may be the case.
Right. And you were the supervisor for Terrence Construction Pty Ltd in the building of that house?---Probably was, yes. Back at that stage, I had other workers working for me as well though.
THE PRINCIPAL REGISTRAR: Did you have any other supervisors working for you?---Yes, I did. My father and – I honestly can't remember that far back. I have employed a considerable amount of different supervisors.
WHEATLEY, MR: Except as at that – or for that particular construction, you were the person involved, as you can see that letter is addressed to you?---Well, being the person that signed the contracts up and all that, everything was always addressed to me.
Alright?---And I probably did supervise that job, but I honestly really can't remember.
Evidence at the trial in the form of a letter dated 20 November 2013 from the Building Commissioner showed that Peter Walker held registration as a builder in Western Australia between April 1984 and June 2009, after the construction of 12 Kiap Road. However, he was never recorded as a nominated supervisor for Terrence Construction Pty Ltd.
The second defendant did not give evidence before me. No evidence in any form was offered by the second defendant that any person employed by Terrence Construction in 1983 or that any other director at that time held registration under the Builders' RegistrationAct.
The second defendant was the director of the building company that bore his name that built 12 Kiap Road. On the evidence available to me, he was not merely the only person known to be associated with the construction of 12 Kiap Road but the only person connected with Terrence Construction shown to be a registered builder at the relevant time. The second defendant has said on his oath that he probably supervised the work, notwithstanding the claimed issues with respect to his memory.
Based on the evidence from the Building Commission about the registration status of the persons that I have referred to, the correspondence between Mr MacNaghten and the second defendant, and the second defendant's evidence before the principal registrar, I am satisfied on the balance of probabilities that as a matter of fact the second defendant did manage and supervise construction of 12 Kiap Road. I am also satisfied that he was, pursuant to the provisions of the Builders' Registration Act that I have referred to, the registered builder who was and who should have been responsible in accordance with the provisions of the Builders' Registration Act for the management and supervision of the construction of 12 Kiap Road, South Yunderup.

The balcony as designed and as built

The copies of the Plans submitted for the Building Licence might be easily understood by architects and builders but they are much less helpful to lay people. This is the kind of case where an understanding of the issues would have been greatly facilitated by simplified drawings showing the architectural details of the balcony both as designed and as ultimately constructed. None were provided. Had they been I would have incorporated them into these reasons. That leaves me to explain what was intended and what resulted as best as words can do.
Both as designed and as built, the decking of the balcony was supported by joists that were 2.4 m long. They were notched at each end so as to rest on seating or bearing plates. As designed, the joists were timber, 150 mm by 50 mm and they were spaced at 600 mm centres down the 10 m length of the balcony. As built, the joists were larger: 240 mm by 50 mm. As designed and built the bearing plates were timber, 75 mm by 50 mm.
On the house side the bearing plate was bolted to the masonry wall. On the outer side the opposite bearing plate was attached to a supporting beam that ran in four sections between five supporting posts. This supporting edge beam was 200 mm x 50 mm timber. As designed and as built, the bearing plate was attached to the supporting edge beam by bolts, at 1200 mm centres in each section. That is, there was a horizontal distance of 1.2 m between the centre point of each bolt in the section of edge beam. Three bolts connected the plate to each of the four sections of edge beam.
According to the design shown on the Plans, the five supporting posts were supposed to be rolled hollow section steel. Quite apart from the detail in the drawings, the specification at D1.11 obliges the builder 'to supply and install five No 102 x 102 RHS columns as detailed on drawings to support the verandah'. As built, they were timber. Nothing turns on this, whoever decided to make this substitution because, as will be seen, the posts were not involved in the balcony collapse.
I have previously referred to the section of the Specifications that required that all fastenings in external woodwork were to be galvanized and all bolts unless otherwise shown were to be 10 mm cup heads.
As Mr Peter Bruechle, one of the expert engineering witnesses, observed, for some unknown reason the architect determined that 900 mm centres were appropriate for the attachment of the bearing plate to the masonry of the house, but 1200 mm centres were thought adequate for the attachment of the bearing plate to the supporting edge beam on the outside.
Both as designed and as built, a floor over the joists was provided by 100 mm x 25 mm chamfered batons as decking.
The notched joists then, at 600 mm centres, rested on the bearing plates. At the outside of the balcony the bearing plate was bolted to the supporting edge beam, with 12 bolts at 1200 mm centres. It was the complete failure of these connections between the edge beam and its bearing plate along the 10 m length of the balcony which resulted in the balcony's catastrophic collapse.
With a few significant differences, one of them more relevant to this case than the others, the balcony as built corresponded to the design. I have already referred to the discrepancy between the designed rectangular hollow section steel posts as against the wooden ones ultimately provided, and the increased size of the joists. As built however, the outer bearing plate was not attached to the supporting edge beam by 10 mm galvanized bolts. Instead it was connected using 8 mm electroplated bolts.
Whether as designed, or as built, the balcony did not come close to meeting the applicable design standards at the time or the more relaxed current standards. The engineers and architects who gave evidence before me were in agreement that the design of the balcony did not meet the 'deemed to be satisfied' provisions of By‑Law 41.2(2) or satisfy the principles of structural mechanics provided in By‑Law 41.2(1). As constructed it was still more deficient.
According to the evidence of Peter Bruechle, based on the design standards that then applied – AS1170.1, part 1, 1981, Appendix B – a balcony of this kind should have been built with the capacity to bear a live load, that is, a load in addition to the weight of the structure itself, of 4 kilopascals (kPa).
A pascal is a measurement or unit of pressure equivalent to the force exerted on an area of 1 sqm by a force of one newton. A newton is a unit or measurement of force equivalent to a mass of 1 kg accelerating at 1 m per second per second. A kiloNewton (kN) is 1,000 Newtons. Measured at the earth's surface it equates to about 101kg. A kiloPascal (kPa) is 1,000 Pascals. As a rough rule of thumb then, one kPa equates to about 100kg per sqm.

Mr Bruechle's evidence was that when regard is had to the constant dead load of the balcony structure itself and the required live load capacity, with bolts attaching the bearing plate to the edge beam on the outside of the balcony at 1200 mm centres, each bolt connection should have to be able to bear approximately 6 kN.
I accept that evidence.
In answer to a question from me, without notice or time to properly do the calculation, Mr Bruechle said that the 'live load' requirement of 4 kPa equated to roughly 40 – 50 people evenly distributed about this balcony.
There is reason to believe that Mr Bruechle's quick calculation significantly understates what the practical capacity should have been. Mr Maxwell Naismith, a consulting engineer called on behalf of the second defendant, prepared a series of calculations with respect to the balcony based not on the standard that applied in 1983, but on the current and less onerous standard. The current standard requires a working load capacity of just 2 kPa, equivalent to 200kg per sqm. According to Mr Naismith, over the 20 sqm of the balcony, that translated into about 50 people at 80kg each. According to Mr Naismith, as designed the 10 mm bolt connections for the balcony are structurally inadequate, even using the reduced modern standard. I accept that evidence.
Mr Naismith's calculation of 50 people as representing the current design working load appears to me to be correct. It emphasises the degree of structural redundancy required by the 1983 standards and the extent to which both the design and construction of the balcony fell below that standard.
Mr Bruechle's evidence, which I accept, is that the characteristic shear strength of a 10 mm bolt in the timber as situated was just 1.57 kN. For an 8 mm bolt it is 1.12 kN. In designing for a structure such as this, then as now, there are other factors that have to be taken into account, such as whether the anticipated live load will be long term or short term, and the environment in which the structure is to be placed. When regard is had to those factors here however they offset each other. According to Mr Bruechle, an engineer designing the connection between the edge beam and the plate should have used 10 mm bolts at 400 mm centres, as opposed to the 1200 mm centres provided by the architects. I accept that evidence.
As I have observed, although 10 mm bolts were stipulated in the specification, 8 mm bolts were used. There is a further issue however. When bolts are used as a fixing through timber, the design standard also requires that the bearing dimension of the wood have a particular minimum size in relation to the size of the bolt that is used. This factor is called 'edge clearance' or 'edge distance'. There must be a minimum of four times the diameter of the bolt from the centre of the bolt to the outer bearing edge of the timber. In this case the bearing plate was 75 mm in the relevant dimension. An edge clearance of 40 mm was required. The maximum edge clearance that would have been available using 10 mm bolts was 37.5 mm. The concern here is that an inadequate edge clearance increases the risk of splitting of the timber. Here the lack of 2 ½ mm represented a reduction of just over 6% of the edge clearance that was required.
No evidence was offered by any party as to the relative risks and benefits that might arise from the use of the 40% stronger (1.57 kN v 1.12 kN) 10 mm bolt as against the marginally inadequate edge clearance. Despite that, the marginal compromise of edge clearance if the correct size bolts had been used took on a considerable if elusive importance in the case of the second defendant. I will refer to this later in these reasons when I come to deal with the issue of breach of duty of care by the second defendant.

Purchase by the first defendant

In June 1991 Marie O'Sullivan and her husband purchased the property at 12 Kiap Road as joint tenants. 12 Kiap Road was originally used by them as a holiday home. Later, the house became their home. In 1993 Mrs O'Sullivan's husband died and she became the sole owner. In May 1994 she sold the property to a Mr and Mrs Nairn. In March 2000 she repurchased the property and moved there to live. However, she sold the house again in January 2010.
When she repurchased the house she observed that the previous owners had done quite a bit of renovation work, particularly to the upstairs of the house. That included an extra bedroom and a bathroom. She did not have any property inspection conducted other than a white ant inspection and treatment. She did have some painting done. It was not clear from her evidence what exactly was painted, and whether that included the balcony.
It seemed to me that this uncertainty about what painting was done arose in both her evidence‑in‑chief and in cross‑examination because Mrs O'Sullivan was anxious and somewhat confused. I will return to this issue later in these reasons.

Plaintiff's relationship with the first defendant

The plaintiff first met the first defendant in about 1975. The plaintiff and his wife were friends with Mrs O'Sullivan and her late husband. The families used to socialise and their sons played sport together.
When Mrs O'Sullivan returned to South Yunderup in 2000 she continued her friendship with the plaintiff and his wife. It was apparent from her evidence that Mrs O'Sullivan was not 'handy' in the sense of trade skills or knowledge. Understandably, given their friendship and his abilities, the plaintiff would help Mrs O'Sullivan with jobs around her house. That included some work on her kitchen as well as work on a sliding door and, as he said, 'general stuff'. The work was done out of friendship and no fee was involved.
The plaintiff said that Mrs O'Sullivan would sometimes ask his advice about matters related to her house. He said that in around 2001 she asked him about an issue with respect to the wooden posts supporting the balcony. According to the plaintiff, some deterioration in the posts or in part of the posts prompted Mrs O'Sullivan to engage a carpenter to repair them. This was done at that time, according to the plaintiff, by having new sections of wood 'scarfed' into the remaining part of the posts. The plaintiff says that after the work was done Mrs O'Sullivan asked him what he thought of the completed repair work, to which he said he told her that, 'it was okay'. I will return to this issue of the repair to the posts of the balcony later in these reasons.
In 2002 or 2003 the first defendant wanted to re-finish the wooden floors in the upper storey of her house. She asked the plaintiff whether it would be safe to put all of the furniture from the upstairs out on the balcony. In cross‑examination the plaintiff agreed that if he had thought that the balcony was dilapidated or in a state of disrepair, he would have told the first defendant that. He said however that when he was asked about the safety of placing the furniture out on the balcony he told Mrs O'Sullivan that he 'thought it would be okay'.
The plaintiff and his wife were regular visitors to 12 Kiap Road after the first defendant repurchased it. They and the first defendant's other guests regularly went onto the balcony. As the plaintiff's wife said, 'This happened lots of times'.
They would often have barbecues down on the ground floor and the plaintiff walked beneath the balcony on a number of occasions. He never saw anything that suggested that anything was wrong with the balcony. He said that the only thing that he had ever seen that caused him any concern was the dry rot that the first defendant had pointed out on two posts of the balcony, which she subsequently had repaired. The plaintiff said that he had observed that two of the posts had dry rot but he later saw that the first defendant had had all five posts repaired.

The collapse of the balcony

On 31 December 2004 the plaintiff and his wife went to 12 Kiap Road. Mrs O'Sullivan was having a New Year's Eve party. There were several other guests besides Mr and Mrs Dunmall. Several minutes before midnight, as the plaintiff said:
I was on the karaoke machine from memory and Marie mentioned the fact – Mrs O'Sullivan, that she was going to get some champagne or whatever and we turned the karaoke machine off … I went to step out on the balcony and said 'Elvis is just leaving the building'.
As he stepped out onto the balcony Mr Dunmall said that he '… heard this creak and looked down and it was starting to come down and I braced myself, crouched down and the rest was sort of – we had the ambulance and police and people there propping us up'. As best the plaintiff could recall, assisted by one of the many leading questions asked by his counsel about matters in issue, within seconds of the creaking noise the balcony came down like a big trapdoor. Immediately following the creak the plaintiff said there was 'a loud bang'. The outside edge of the balcony fell down, hinged in effect where it was attached to the house.
One of the witnesses called in the plaintiff's case was a Mr Robert Johnson. Mr Johnson is a structural engineer who, in 2005, was asked by solicitors for GIO Australia to inspect the site of the balcony collapse and report on it. He took a number of photographs and prepared a report. The photographs show the aftermath of the balcony collapse. The five posts that held the outside end of the balcony remain intact, as does the balustrade that previously surrounded the balcony, the roof over the balcony and an adjacent lower roof covering a patio area on the ground floor. All of the joists and decking that previously formed the balcony are gone.
The supporting edge beam that ran between the posts appears to be largely intact. The plate that was previously attached to the edge beam that supported the joists is gone. The former location of the plate and joists can be seen on the remaining structure as areas of the edge beam that are unpainted. One close up photograph of one end, of one section of the edge beam, shows that where it was not painted it has been subject to fungal attack in the form of rot, and that part of it has pulled away in the collapse. A hole can be seen in photograph number 3 of exhibit 11 where a bolthead and washer connecting the plate has pulled right through the wood. Other photographs show that some unpainted portions of the edge beam to which the plate had previously been attached have also deteriorated.
There are some photographs which show a roughly stacked jumble of lumber from the remains of the balcony. There are a number of joists as well as the decking. Photographs 25 and 30 appear to show, among other things, a portion of the plate. In photograph 30 in particular one of the remnants of bolt can be seen protruding through a section of the plate. One could be forgiven for not appreciating that the metal object was in fact a remnant of bolt with its bolthead. The bolt shank has been attacked by rust to the extent that what remains in the hole through the plate has almost the proportions of a pencil in a pickle jar. I emphasise that these things are apparent where the timbers lie, stacked on the ground, following the collapse.
From all of the evidence before me it is apparent that in the course of or as a consequence of the collapse, rusted bolts sheared off, rotted timber split, and in some places remnant boltheads pulled through rotted timber. All the experts agree that following an initial failure of the connection between the edge beam and the plate, all those things occurred or all may have occurred.
There was general agreement between the experts that the failure occurred initially at one of the fixing points, that is, where the plate was connected to the edge beam by a bolt.
The evidence of Mr Johnson was that within each of the four spans of the edge beam, the middle bolt of the three carried the greatest share of the load by virtue of the bolt spacing. There was some evidence, which was not disputed, that the initial failure was likely at one of the 'middle bolt' positions. I find that the collapse was triggered by an initial failure at one of the points of connection and I accept that it was probably one of the 'middle bolt' positions.
A central factual issue raised by the second and third defendants however is the precise cause, or perhaps more correctly the trigger, of the collapse of the balcony when the plaintiff stepped onto it. The submission, in essence, is that it cannot be established that it was the substitution of 8 mm electro plated bolts that 'caused the collapse'. While accepting that a number of corroded bolts sheared off, it was said that the collapse could not be attributed to those failures because the wood of the edge beam and bearing plate contained areas of rot, and because the aftermath of the collapse showed that rotten timbers had in some cases split or allowed the connecting bolts to pull through. In the circumstances it was argued, neither factual nor legal causation for the plaintiff's injuries could be attributed to the second or third defendants, the rot having occurred independently of any alleged breach by those parties in relation to the bolts.

The cause of the balcony collapse on 31 December 2004

The argument of the second and third defendants only has weight if one takes a highly blinkered view of the circumstances leading to the plaintiff's injury. It would have merit if the plaintiff had been injured because just one connection in the balcony failed. The balcony should have had the capacity to support at least 50 people and should have had the capacity to do so for many years after the date of the collapse. The logical flaw in the argument of the second and third defendants is that it focuses on the immediate trigger of the collapse, to the exclusion of any enquiry as to how it came to be that this balcony suddenly, catastrophically, and completely collapsed when it did, under the weight of just three people. To some extent the argument avoids consideration as to how the timber came to be in the condition it was and it ignores entirely the question as to why the failure of one connection, for whatever reason, brought down the entire balcony when it did.
Dr Armand Zurhaar, an expert in the field of material science, gave evidence for the plaintiff. Dr Zurhaar's report dated 29 February 2012 was tendered into evidence. He is highly qualified and experienced in his field.
He was asked to examine the remains of some bolts extracted from the wreckage of the balcony. No party disputed that the bolt remnants he was provided with had come from the connections between the bearing plate and the edge beam.
Dr Zurhaar gave evidence that the bolt remnants that he examined were originally 8 mm electroplated mild steel bolts. That opinion was not challenged. Dr Zurhaar explained the difference between two methods of protecting steel products from corrosion: electroplating and hot dip galvanising. Electroplating, typically with zinc or cadmium, produces a protective layer that is usually only 10 – 20 microns thick. The zinc layer is electrolytically applied to the steel surface. It remains a discrete layer of pure zinc. The zinc is in effect deposited as a surface layer that is mechanically and not chemically bonded. As a consequence of the low coating thickness and the mechanical surface plating, the result is very limited corrosion resistance.
By comparison, the process of hot dip zinc galvanising involves the steel that is to be coated being immersed in a bath of molten zinc. The resulting coating acts as,
An oxidative and sacrificial barrier to corrosive environments. During the galvanising process the steel chemically interacts with the zinc to produce a series of iron zinc alloy zones which all result in a chemically bonded protective layer.
…
The resultant finish consists of at least four zones of alloy with changing ratios of iron to zinc as the zinc finish extends from the steel surface to the outer zinc surface.
…
Zinc applied by hot dip galvanising produces a protective layer that is typically 60 – 80 microns thick and this, combined with the alloying process, produces a product with superior corrosion resistance.
I should note that from the examples of electroplated and galvanized bolts tendered in evidence, the difference in appearance of the two types is obvious, even at some distance, even to a lay person.
Unsurprisingly, Dr Zurhaar described the use of electroplated bolts as a non‑compliance with the construction Specifications. He said it would have had, 'the effect of severely reducing the service life of the fixing when present in a corrosive coastal environment'.
The most helpful description of the consequence of the bolt substitution emerged in the cross‑examination of Dr Zurhaar by counsel for the third defendant. Dr Zurhaar was asked about what he meant by 'severely reducing the service life'. To this he answered:
They're lucky to have got the 20 years they got with an electroplated bolt. An electroplated bolt of that size to have retained its integrity as long as it has, is a function of it having been imbedded in wood and protected somewhat from the environment, and so it is very difficult to say, 'look, an electroplated bolt will last 10 years and a galvanized one will last 30', right, because it's all individual design. But there is a massive difference. The difference is not subtle. The difference is that, as you can see here, if this had been a hot dipped galvanized bolt, the level of reduction of diameter and corrosion of the steel would have been a fraction – would have been, you know, 20% of what it is now, right? It is – it is very common for zinc galvanized bolts of this type, using coastal environments, to still be structurally adequate and functional and have 80% plus of its steel diameter 30 years down the track. It's unheard of for an electroplated zinc one to go beyond 20 years. This really was at the end of its service life. This is why it's so characteristic that it was plated. It's behaved entirely like a plated bolt does.
The 'this' that Dr Zurhaar was referring to was one of the bolt remnants taken from the wreckage of the balcony. The word 'remnant' is used advisedly. Someone who was unfamiliar with the circumstances of this case, seeing one of these remnants, would be forgiven for thinking that it had been taken from an historic shipwreck. The original 8 mm diameter of the bolt shank is reduced to no more than a few millimetres. Six such remnants were tendered into evidence. Each of these appeared to have been sheared off. One of the bolts was intentionally sheared off at the bolt head end for the purposes of the metallurgical examination.
In all of the circumstances it was hardly surprising that Dr Zurhaar's conclusion was that, 'a non‑galvanized bolt was entirely inappropriate for an external structure … '. Regardless of the size of the bolt used, he was of the view that '… the fact that it wasn't galvanized meant that it did not have the durability to last a service life reasonably expected of a balcony, even if its design was adequate'. I accept Dr Zurhaar's evidence.
Mr Robert Johnson, the consulting engineer, provided a series of reports including calculations and photographs that were tendered into evidence. His first report was dated 3 March 2005, close in time to the collapse.
In a further report dated 1 November 2013 Mr Johnson expressed the opinion that the sequence of events leading to the collapse was most likely to be:
1.Over a period of years water entering the joint between the timber edge beam and the attached plate promoted corrosion of the bolts and exacerbated the deterioration of the timber within the interface between the two sections.
2.There were three bolts in each span between the timber posts. The spacing of the bolts meant that the central bolt was the most heavily loaded.
3.Due to the effects of corrosion the central bolt in one span failed in tension and sheer on the much reduced cross section under the additional loading from the people. Failure of this bolt caused the weight of this section of the balcony and the people on the deck to be transferred to the remaining bolts.
4.The additional load exceeded the capacity of the connection and most likely caused the bolts to fracture or to pull through the deteriorated timber.
5.The loss of support in one of the sections of the balcony lead to one load being spread to the adjoining sections and a total collapse ensued.

Mr Johnson in expressing that opinion was responding to a series of written questions asked of a number of the experts who gave evidence. The questions posed to each of them were as follows:
1.Do you agree that the connection failure between the timber plate and the edge beam occurred in one or more of three ways:
1.1A failure of the bolt in either tension or sheer due to the advanced nature of the corrosion which reduced the cross sectional area and hence load capacity of the bolt;
1.2The head of the bolt was pulled through the timber member, which had been weakened by deterioration of the timber through dry rot;
1.3The dilapidated condition of the timber and the force of the bolt, perpendicular to the grain resulting in the splitting of the timber;
and if so which mode of failure occurred first?
Mr Johnson was of the view that the connection failure was a combination of items 1.1 and 1.2.
Mr Bruechle also offered his opinion about the cause of the collapse. In his report of June 2012 he referred to the fact that the bolts used were 8 mm and were not galvanized. He said 'the inadequacies of these bolts were the prime causes of the collapse'.
In his report of January 2013 he said further:
The cause of the failure was not overloading but failure of the 8 mm diameter bolts that were badly corroded. The bolts were both undersized and they were inadequately treated for the saline environment to which there were exposed. There could have been contributory causes such as rotting timber and other connections that were inadequate but there is no doubt that the failure was due to the failure of these bolts.
Acknowledging the possible contribution of other factors in his report of June 2012 Mr Bruechle included:
Timber that deteriorated with age. There is some evidence that the 75 by 50 baton supporting the balcony floor joists had split so deterioration is possible.
Referring to the observations of decay in the form of rot in some of the timbers Mr Bruechle went on:
The likelihood is that the deterioration and splitting was brought about by the products of corrosion of the bolts because the rust swelled to force the baton apart and allowed moisture in. In any event timber decay is, almost certainly, of secondary importance to the corrosion of the inadequate bolts.
In his evidence at trial, referring to photographs of timbers showing the holes that had previously held the 8 mm bolts connecting the edge beam and plate Mr Bruechle said, 'It probably has been increased in size by the corrosion … and that might have caused the split that's there'.
In cross examination Mr Bruechle accepted that given the three kinds of failure of the connection identified above it was not possible to say which specific mode of failure caused the first connection to fail.
Mr Johnson in his evidence described the circumstances that encouraged rot to occur in wood. Essentially it comes about where water penetrates because of the lack of a barrier such as paint, exposing the untreated wood to moisture. Untreated wood surfaces that are allowed to become wet and remain wet for protracted periods become susceptible to deterioration by rot. Mr Johnson pointed to the untreated surfaces of the joint between the edge beam and the plate, where the presence of the decking above did not allow the joint to dry out very quickly. That evidence was not controversial. Of course the same applies with perhaps even greater force to the capillaries or conduits around the connecting bolts. That would particularly have been the case after the initial expansion caused by the process of corrosion and the subsequent loss of the oxidised metal material.
Mr Bruechle's evidence about the relationship between the corrosion of the bolts and the deterioration of the adjoining wood was not challenged in cross‑examination, and I accept it. I do not suggest that rot did not occur independently in other parts of the unpainted wood between the edge beam and the plate, but the corrosion of the bolts I find accelerated the process of rot immediately around the bolts, weakening the wood there and making it easier for the bolts to pull through when they came under increased load.
An assessment of all of the expert opinion of the engineers and architects does not reveal any real controversy. All of them point to the inadequacy both of the design and the method of construction of the connection between the plate and the edge beam. All of them acknowledge the inappropriateness of the use of non-galvanized bolts, some in more fervent terms than others. All of them recognise that there were two or perhaps three ways in which the connections between the edge beam and the plate failed bringing on the complete collapse of the balcony. All of them appear to recognise the impossibility of saying with any degree of certainty, which particular manner of failure was the trigger that led to cascading failure of each of the other connections
As all of the designs standards suggest, and as the evidence of Mr Johnson confirmed, structures like the balcony are not engineered so that they are close to the point of failure in their ordinary use. Rather, a considerable degree of redundancy is engineered in so that the structure will not be tested in its ordinary use and so that it may endure. As Mr Johnson said in his report of 12 September 2013,
Unprotected timber has been used externally for centuries. Jetties and like have been built directly in the ocean and many of these are part of our heritage. A critical aspect of the longevity of a timber structure is that it is properly designed, detailed and constructed … .
Mr Zurhaar described how it was common for galvanized bolts to survive 30 years in a coastal environment with 80% of their steel diameter intact. He contrasted that with the expected performance of electroplated bolts as demonstrated by the bolts used in the balcony here.
In one sense, what is significant about the balcony at 12 Kiap Road is not that it failed when it did, but that it survived as long as it did. Had galvanized bolts been used I have no doubt that it would have lasted much longer. When a failure finally occurred however, it was not limited to one connection between the edge beam and plate. That single failure instantly became a cascading and complete failure of the balcony. I am satisfied as a matter of fact and find that the complete failure was substantially caused by the use of electroplated bolts. The corrosion of those bolts both created a channel for rot to weaken the wood of the structure and caused the connecting bolts to fail, that is, to break or shear. It was the use of 8 mm electroplated bolts I find that brought the balcony to a point on 31 December 2004 where the weight of just three people could bring the whole structure down. To avoid any doubt I am satisfied that, even using 8 mm bolts, the balcony would not have collapsed on 31 December 2004 under the weight of just three people if the bolts had been galvanized.

The first defendant: duty of care and alleged breach

It cannot be doubted that the first defendant owed a duty to take reasonable care for the safety of visitors to 12 Kiap Road. The question is whether she breached that duty. The allegation against her by the plaintiff and by the second and third defendants is that she failed to take adequate precautions for the safety of invitees on the balcony of her house. In testing that allegation I am mindful of the provisions of the Occupiers Liability Act 1985, s 5 and the Civil Liability Act 2004, s B.
Broadly, the first defendant's breaches of duty are said to consist of the failure to have periodic inspections of the structural integrity of the balcony, failing to maintain it in a safe state, and having failed to do those things, allowing people to use the balcony when she should have known that the balcony might be unsafe.
There are in fact 15 particulars of negligence alleged against the first defendant in the statement of claim. They range from the vague '(a) failing to provide a safe balcony for her guests to stand on or traverse' to the not arguable '(o) the plaintiff will further rely upon the doctrine of res ipsa loquitur'. In these reasons I will deal only with allegations of breach that were in fact argued at trial and for which there was at least some foundation in the evidence.
The plaintiff's particulars of negligence also appear to allege actual knowledge by the first defendant of the unsafe condition of the balcony. For example, particular 9(n) alleges that the first defendant breached a duty by 'failing to warn the plaintiff that the balcony was unsafe and may collapse under the weight of the plaintiff and other guests'. Other particulars hint at or imply actual knowledge of the risk of collapse.
The second defendant and third defendant allege that the first defendant should have known that her balcony was not safe and should not have permitted guests to use it, or should not have permitted them to use it without warning them that she had not had the balcony inspected. I will deal first with this question of what the first defendant knew or should have known about the state of her balcony.

Did the plaintiff have or should she have had knowledge of deterioration in the joist connections?

It has been difficult to discern whether the plaintiff's case is that Mrs O'Sullivan actually knew that her balcony was unsafe when she allowed guests to walk out on it, or that she should have known that that was the case. I have referred to the plaintiff's particulars of negligence. In the course of closing submissions I tried to obtain an answer as to what exactly the case was in that respect, given submissions that seemed to suggest that I was being asked to find that Mrs O'Sullivan had lied in her evidence. I was not able to get an answer, nor was I able to get plaintiff's counsel to tell me whether I was being asked to find that aspects of the first defendant's evidence were simply unreliable or actually untruthful.
In my view the proposition that the first defendant knew the balcony was unsafe could not in any event be sustained on the evidence. Quite apart from the fact that it was never put to Mrs O'Sullivan when she was cross examined, the evidence of social activities on or under the balcony, activities that included Mrs O'Sullivan, suggests rather strongly that she was oblivious to any risk from the ordinary use of the balcony.
I will consider then the allegation that Mrs O'Sullivan ought to have known, prior to 31 December 2004 that it might be dangerous to allow her guests to walk on the balcony. First, it is apparent that Mrs O'Sullivan knew that the house and balcony was at least 15 years old in 2004, given her prior ownership of it. Second, it is said on behalf of the plaintiff that Mrs O'Sullivan knew that, '… the premises were in a highly corrosive location subject to the prevailing weather …'.
That 12 Kiap Road was built alongside a canal in South Yunderup, in an area affected by the breeze off the ocean and estuary, cannot be doubted. Although two of the defendants declined in their pleadings to admit the multi-faceted proposition contained at par 3 of the statement of claim, 'the premises were located within 10 km of the Indian Ocean on the South Yunderup canals on the Peel Inlet in the Shire of Murray and were subject to a high corrosion hazard', at the very beginning of the trial all defendants made plain that they admitted the geographic location of the house and its proximity to the canal and the Indian Ocean.
It is apparent that Mrs O'Sullivan knew that she lived adjacent to the South Yunderup canal; it was there when she looked out of her window. It is however another matter to establish that that meant that the house was, 'subject to a high corrosion hazard' and that Mrs O'Sullivan knew that fact.
That close proximity to the ocean and estuarine environments (like those of the Peel and Swan rivers) increases the risk of corrosion is undoubtedly a scientific fact. It is reflected in relevant building standards. Certainly engineers, architects and builders are aware or should be aware of the need to use materials appropriate for a marine or estuarine environment. It is questionable what lay members of the public in fact know, or reasonable persons should know, about the extent to which a given proximity to the ocean can cause accelerated deterioration of some building materials. Whether a reasonable person living within 10 km of the ocean or indeed on a canal should expect that their house has been constructed to take account of that fact was not something explored in any depth in this case. Certainly on the evidence it never occurred to Mrs O'Sullivan that living in South Yunderup meant that she had to be especially vigilant for the condition of her house and balcony.
To the extent that there was other evidence on this issue, paradoxically, it was tendered by counsel for the plaintiff. In his report of January 2013 Mr Saleeba said this,
An examination of the drawings indicates that the underside of the balcony is unlined so all connections, joists and plates are clearly visible and with a height of approximately 2.5 metres from floor level to the balcony underside this means all these members and connections are only approximately 1 metre above eye level.
Others have highlighted that the advanced corrosion of the bolts may not have been visible on cursory examination as the visible head and nut of the bolts remained reasonably intact due to the paint coating whereas the concealed shank of the bolt was where the corrosion had advanced to a drastic state.
This could only be discovered by actually removing the bolts and examining and whilst in hindsight this would have been desirable, I do not believe it is reasonable to expect this level of prudence without other visible evidence.
The owner was not the original builder and consequently had every reason to expect the bolts in this environment would be hot dipped galvanized as it required and would have been done without question by any reasonable builder.
This passage from Mr Saleeba's report leads in to the next matter that it was said should have put Mrs O'Sullivan on enquiry about the condition of the balcony: allegedly visible signs of deterioration. Mr Saleeba's reference to what 'others have highlighted' reflects to some extent something said by Mr Zurhaar, and a Richard Machell, and anticipated the evidence of Mr Johnson. In his report of February 2012 Mr Zurhaar, referring to the bolt that he examined, said,
The nut and exposed thread of the bolt has been largely protected from the coastal environment by the paint coating that is present … .
In his report of 12 September 2013 Mr Johnson said,
I have again reviewed the photographs I took in the course of preparing my previous report with aim [sic] of observing any obvious signs of deterioration that would have alerted an observant person that the condition of the balcony warranted further investigation and possible maintenance. In my opinion there is no obvious signs in those photographs of rust staining from the bolts or splitting of the exposed timber surfaces that would signal that maintenance was needed or collapse was imminent.
In his earlier report of March 2005 Mr Johnson had said,
The level of maintenance on the building generally is considered to be to a standard comparable with other buildings of the same approximate age.
It is apparent that there has been no maintenance on the timber in the area where failure was initiated. However, this is considered to be associated with the specific detail and not necessarily a reflection of the level of maintenance on the building generally.
Mr Bruechle in his first report referred to information that he had had regard to, including a statement from someone named Richard Machell provided to the plaintiff's solicitors. Mr Machell was not called as a witness but this evidence was admitted by consent. Mr Machell had been shown the bolts taken from the wreckage of the balcony. His statement was to the effect, 'the visual inspection of the ends of the bolts would not likely have given any cause for concern, based on the condition of the bolts inspected…'.
These aspects of these reports were not referred to by counsel for the plaintiff in closing submissions.
There was an abundance of evidence tendered in the plaintiff's case that established that the deterioration of the connections between the plate and the edge beam was an internal process, not apparent and not discoverable except by disassembly of the connections of the balcony, and not visible otherwise. I accept that evidence.
Another matter that it is said should have put a reasonable person in Mrs O'Sullivan's position on notice of the risk of collapse was her failure to have her balcony regularly inspected by some professional or trade qualified person. A particular of negligence raised by the second defendant is that the first defendant failed to exercise reasonable care in that 'from on or about 1993' she did not 'cause a licensed builder or structural engineer to every 3 to 5 years, inspect the structural integrity of the balcony'.
In my view even a conscientious, house proud, home owner would be startled to think that, absent some sign of structural deterioration, they were regularly required to engage a structural engineer to advise about risk. While this case is concerned with balconies, there is no reason to think that the duty of inspection should be limited to balconies. The telescope of hindsight will identify numerous potential hazards worthy of regular investigation in the average suburban house.
Mrs O'Sullivan never had the balcony or any other part of her property inspected by an engineer or someone qualified to make some assessment of its structural safety. She gave evidence that in the ordinary course she kept the balcony clean. She would sweep it, brush the cobwebs away, 'and stuff like that…'. For the average reasonable home owner, routine cleaning will be the way in which faults and problems can be and are identified.
Mrs O'Sullivan had her property inspected for termites or white ants. A reasonable home owner in my view would expect that any significant damage to a wooden structure, not apparent on ordinary observation but revealed to a pest inspector, would be brought to the homeowner's attention in the ordinary course. Nothing in the inspection report provided to Mrs O'Sullivan in 2000 would have alerted her to any deterioration in the balcony.
The plaintiff tendered into evidence a copy of a brochure published by the Department of Commerce called, 'Balconies and Decks – A guide to maintenance'. The earliest date of publication I can find in the document appears in a reference on the last page. That suggests the document was created in 2010. As might be expected in such a document, along with advice about maintenance, there is a catalogue of the disasters that can befall balconies and decks. Under the heading, 'What can I do to ensure my structure is safe?' it contains this helpful advice:
Check if your balcony or deck has been designed and built correctly. Request a copy of the building approvals and plans from your local government and compare them to the actual structure. You could also have it inspected by a structural engineer or other suitably qualified building practitioner.
Materials can deteriorate when exposed to the elements. Fixings such as bolts and screws, can loosen or corrode over time. A visual inspection on a yearly basis should identify any potential problems.
The document then goes on to identify, 'Some risk factors to look out for', none of which appear to apply here.
With respect, I have some difficulty taking seriously the idea that a homeowner with an apparently sound balcony, with no obvious sign of deterioration or weakness, would hunt down the original plans and specifications to satisfy themselves about compliance. It seems to me that few homeowners would have the knowledge to do so, even if they were sufficiently fretful to obtain the plans and specifications.

Counsel suggested to Mr Saleeba that a 10 mm bolt would not be used in a 50 mm piece of wood (that being the thickness of the plate in its horizontal dimension) because of the edge clearance issue. Mr Saleeba understood however that the relevant dimension was not the 50 mm thickness of the plate but its 75 mm height. In answer to the proposition he said however, 'it wouldn't strictly meet the code, no you're correct there'.
It was never suggested to any witness that a rational decision here would therefore have been to use the smaller bolt. No doubt that was because the only sensible response would have been to point out that rather than reducing the size of the bolt, a very small increase in the size of the plate would allow larger bolts to be used. In any event there is something at least faintly risible in the idea that whoever decided to use non-galvanized bolts in the construction of the balcony was at the same time maintaining a scrupulous regard to the requirements of edge clearance. Given the conclusion that I have reached about the cause of the collapse resulting in the plaintiff's injuries, the issue of 'edge clearance' effectively goes nowhere.
The failure of the second defendant to properly supervise the construction of the balcony, in particular the element of the connection of the edge beam and the bearing plate resulted in the substitution of 8 mm electroplated bolts. The mere fact that the bolts were electroplated created a substantial foreseeable risk of a catastrophic balcony collapse in circumstances like those which occurred. Any reasonable person in the second defendant's position would have ensured that the correct bolts were used. That should have occurred as a matter of routine oversight. Any consideration of the factors set out in s 5B of the Civil Liability Act leads inevitably to the conclusion that it was a breach of the second defendant's duty of care to not ensure that the correct bolts were used, or at least to ensure that electroplated bolts were not used.

Causation - second defendant

The case for the second defendant is that even if it was a breach of duty on the part of the second defendant to have used or allowed the use of 8 mm ungalvanized bolts in the connections of the balcony, 'regardless of what happened next, it was always going to collapse, because it was just never on those plans going to survive, regardless of the longevity that might be achieved by use of a galvanized bolt'. This submission is based on what is evident from all of the evidence about the Plans and Specifications with respect to the balcony.
As designed and indeed as approved by the Shire, the balcony fell far short of what was required to meet either the principles of structural mechanics or the 'deemed to be satisfied' provisions of pt 41of the Uniform Building By‑Laws.
I accept that, even if constructed in accordance with the Plans and Specifications, the balcony was doomed to a far shorter life than it should have had if properly designed and built in accordance with the requirements of the Uniform Building By-Laws.
The real question is not whether the balcony, 'was always going to collapse' if built in accordance with the Plans and Specifications or indeed in accordance with the Uniform Building By-Laws. The decline into disorder anticipated by the second law of thermo-dynamics is inescapable. The question more properly is why was there a complete and catastrophic collapse of the balcony at the moment when just three people stepped onto it on 31 December 2004? Why did it not survive such a slight load at that time and why did it fail completely? Answering my own rhetorical questions, I am satisfied that it was substantially and predominantly the substitution of electroplated bolts that caused the complete collapse of the balcony at that time and in those circumstances.
I am satisfied that the second defendant's breach of duty was a necessary condition of the harm that occurred to the plaintiff. It is entirely appropriate that the second defendant be liable for the consequences of that harm.

The third defendant – duty of care

The allegation against the third defendant is that it owed a duty of care to the plaintiff or persons 'in the class of the plaintiff':
a duty to exercise reasonable care to not approve the balcony that was unsafe or in contravention of the Local Government Act 1960 and the By‑laws made thereunder so as to prevent the foreseeable risk of injury to persons like the plaintiff in the event of the balcony collapsing.
The defence filed on behalf of the third defendant denies that it owed a duty of care to the plaintiff.
Both the pleadings and the submissions of the plaintiff make it difficult to disentangle issues of duty of care, breach and causation. Similarly the defence of the third defendant which, in its form if not its substance is more akin to legal argument than pleadings, makes it difficult to distil what exactly is in issue. The theme of the defence appears to be that nothing in the provisions of the Local Governments (Miscellaneous Provisions) Act 1960 required the Shire to inspect the house or the balcony attached to it unless it was put on notice of some defect or hazard. Accepting as I do that that was the case, that theme overlooks the obligations of the Shire that preceded the grant of a building licence.
The written submissions filed by the third defendant are to the effect, as best they can be understood, that as a matter of statutory construction the power of the Shire to require a certificate from a practising structural engineer set out in s 41.2(iii) of the Uniform Building By‑Laws 1982 'was entirely discretionary and that the third defendant at no material time was aware of any departure from the approved plans and specifications, apart from the installation of a gable …'.
Next, as pleaded, the third defendant denies any responsibility for any safety‑related inspection as construction progressed. Finally the third defendant argues that as a matter of law it owed no duty of care to the plaintiff. In this respect the third defendant, '… places great reliance on the Court of Appeal decision in the matter of Drexel London (a firm) v Gove(Blackman) [2009] WASCA 181'.
I will refer in a moment to the provisions of the Civil Liability Act that govern the circumstances in which a duty of care may be owed. However, I will first deal with the decision of Gove given the reliance placed on it by the third defendant. With respect, apart from the fact that Gove also involved a balcony collapse (coincidentally also during a New Year's Eve party) it is difficult to see how that decision provides any assistance to the third defendant in resolving the issues in this case.
The submission for the third defendant is, 'that particular case dealt with another statute namely, the Strata Titles Act 1966 which the third defendant says has many similar parallels to the legislation, subject of this particular matter'. That Gove was primarily concerned, so far as the issues raised against the City of Fremantle were concerned, with the Strata Titles Act cannot be doubted. That the issues resolved in that case have any parallel to those in this case cannot be contended.
In Gove a developer converted an old soap factory into a multi‑residential strata title building. It engaged architects to prepare plans which were in due course submitted to the City of Fremantle. A building licence was granted and redevelopment proceeded. In that case, the then owner of the building determined that it would act as builder. At some stage in the construction process someone made a decision to substitute Oregon (or Douglas Fir) timber in the construction of balcony joists for the construction grade jarrah that had previously been specified. Oregon, a species of pine also known as Douglas Fir, while a desirable building timber in many respects is particularly susceptible to fungal attack, that is to say rot, when left untreated. That is in fact what occurred causing the collapse of a balcony when an occupant of one of the strata title residents was entertaining 20 or so guests on the balcony at a New Year's party.
The evidence at trial was that fresh Oregon timber is noticeably different from jarrah. Anyone familiar with timber construction who had been on notice of the stipulation of jarrah should have noticed the substitution if they had been inspecting the varied substantial balconies that were added to the Old Soap Factory.
No complaint was made by any of the plaintiffs in that case that the City of Fremantle had somehow failed in its duties in respect of the granting of a building licence. There was no suggestion that the City of Fremantle should have observed any deficiency with respect to the design or specification of the balconies, based on the plans and specifications that the City approved. Rather, the claim of the plaintiffs was based on a certificate issued by the City, pursuant to the provisions of the Strata Titles Act. In essence, and consistent with s 5(6)(c) of that Act, the City certified that the building shown on the plans that it approved had been inspected and that the building was consistent with the building plans and specifications that had been approved. In the certificate, the City gave its opinion that the building, 'is of sufficient standard and suitable to be divided into lots pursuant to the Strata Titles Act, 1966'.
The plaintiffs in the Gove case alleged that this provision of the Act either created a specific statutory duty to inspect to ensure consistency, or that the granting of such a certificate gave rise to a common law duty of care to carry out the required inspection in such a way as to minimise the risk of harm to visitors to the building. The action was a claim in negligence relying on an alleged breach of s 5(6)(c) as evidence of the breach of duty of care.
The trial judge concluded that in fact the City did owe such a duty of care to the plaintiffs who had been injured by the collapse of the balcony. McClure JA, Le Miere J agreeing, held that the trial judge had erred in so concluding.
McClure JA concluded that the requirement for an inspection under s 5(6)(c) had a very limited purpose. The purpose was simply to determine consistency in a relatively general way between the approved plans and the resulting building. Where it was so satisfied, the local authority was under statutory duty to issue a certificate for the purpose of strata title registration. Referring to the plaintiffs' argument McClure JA said, commencing at [270]:
This level of specificity of duty does not sit comfortably with the common law approach to duty and breach: Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, [191] – [192].
Further, the statutory purpose and object of the City's duty under s 5(6)(c)(1) is solely connected with the registration of a strata plan for the building. If the City had properly performed its duty the strata plan would not, in the absence of a successful appeal, have been registered. It is of particular significance that the registration of a strata plan is not a pre‑condition to the occupancy or use of the building the subject of the application … Furthermore, there is no power in the 1966 Act by which an application for a strata plan can be compelled to bring the building into conformity with the approved plans and specifications.
The ratio of Gove so far as this particular issue is concerned can be found at [274] of the decision:
Having regard to the purpose of the statutory framework, it cannot in my view be concluded that the City's conduct under s 5(6)(c) alone gave rise to a parallel common law duty of care to prevent or minimise the risk of harm to visitors to the building. The City acted under s 5(6)(c) as part of its duties under a regulatory framework for the registration of strata plans in which the safety of the users of the building was not statutory purpose. There is nothing in the circumstances which materially add to the City's conduct under the statute. The City did not create or increase the risk of harm of the kind suffered …'
Her Honour's conclusion with respect to concerns about the safety of the users of the building and the absence of any such statutory purpose in the Strata Titles Act s 5(6)(c) is to be contrasted with what was said in Gove about other functions of local authorities created by the Local Government Act:
As discussed earlier, safety considerations had to be taken into account by a local authority when determining whether to approve plans and specifications under s 374 of the Local Government Act 1960 and in that way, safety is a relevant consideration in the procedure for registration of a strata plan [272].
In my view the acts of a local authority taken in purported performance of s 374 of the Local Government Act give rise to a common law duty of care to users of the building. In approving building plans and specifications and granting approval for the construction of buildings local authorities in my view have a duty to take reasonable care for the safety of those who may occupy or use the building during its anticipated life. I did not understand counsel for the Shire to dispute the existence of that duty in his closing submissions.
Section 374 of the Local Government Act together with the requirements of the Uniform Building By‑Laws in here in particular 'Group VI – Structural Provisions' offer guidance as to the scope of that duty. In my view, the duty requires local authorities to take reasonable care to ensure that any buildings constructed with their approval comply with relevant design standards, in particular with respect to any element of the design of a planned building which has the potential for a dangerous collapse if defective. 'Dangerous collapse' in this context means failure with a consequent risk of foreseeable personal injury, whether because of premature failure or failure under loads materially less than required by relevant design standards.

Breach of duty – third defendant

At the very least then, in my view reasonable care dictated that sufficient attention should be paid to detect any significant departure, and in particular any significant departure with respect to elements of a design that held the potential for collapse and injury if they were defective. The balcony at 12 Kiap Road was in my view obviously such an element.
I have described the extent to which the connections of the balcony failed to comply. The departure from the required standard was not a trivial one. It was substantial and any exercise of reasonable care should have detected that departure.
Mr John Bayly gave evidence for the plaintiff. Mr Bayly is a qualified civil and structural engineer with more than 30 years of experience working as engineer with a number of local governments. His evidence, which was not challenged in cross examination, was that an examination of the Plans and Specifications could not have allowed a local government authority to satisfy itself that the balcony was structurally sound in compliance with pt 41 of the Uniform Building By‑Laws. Indeed, his uncontradicted oral evidence was to the effect that to the extent it was possible to form a judgement it was apparent that the balcony design did not comply. His view was that what was required was for the Shire to insist upon structural certification from an engineer before allowing occupancy. I accept his evidence.
I conclude that either no regard was had by the Shire to the balcony element of the design, or that whoever examined the Plans and Specifications lacked the basic competency to appreciate the extent to which the balcony design fell below what was required. No other explanation presents itself as to why the Shire would allow a balcony design with a design load capacity of just one quarter of what was required to be approved. What is puzzling here is that even if the Shire's building inspector lacked either the time or the ability to review the Plans and Specifications, it was always open to the Shire, at no cost to itself, to require the owner to arrange for certification by a qualified engineer.
The 10 m long, 2 m high balcony was a prominent part of the house shown in the Plans. The risk of dangerous collapse if it was defective was foreseeable, and the risk was not insignificant. All that was required was the competent discharge of the duties of the Shire pursuant to the Local Government Act and the Uniform Building By-Laws. A review by a competent person that was something more than cursory would have revealed the deficiency of the balcony design. It was open to refuse to approve the Plans and refuse building approval. If the Shire lacked the resources to review the Plans and Specifications with reasonable care, or a review left the Shire dubious about compliance, it was open to delegate that task to a qualified engineer, at no cost to the Shire. None of that happened. Instead, approval was granted without any relevant condition.
In my view the failure by the Shire to identify that the Plans and Specifications so significantly failed to meet the necessary design standard was a breach of the duty of care that I have described.

Causation – third defendant

The acts that constitute the third defendant's failure here, while leading to the positive act of the grant of a Building Licence without any relevant condition, were in essence a breach by omission. The Shire should have either exercised its power to decline to grant approval, or it should have only granted approval on the condition of certification by an engineer. It did neither.
The assessment of causation in the case of an omission is necessarily undertaken by considering the probable course of events had the omission not occurred: Strong v WoolworthsLtd t/as Big W [2012] HCA 5; (2012) 246 CLR 182 [32], per French CJ, Gummow, Crennan and Bell JJ. The positive act resulting from the third defendant's failure to properly review the plans and specifications and to detect the extent of their deficiency was the granting of the unconditional Building Licence. Had that not been done, the house at 12 Kiap Road would not have been constructed, or would not have been constructed with the balcony that collapsed injuring the plaintiff. Alternatively, had the deficiencies in the Plans and Specifications been detected the Shire would have been entitled to insist upon the appointment of a building engineer to ensure compliance with the necessary standards. It is probable that had the deficiency been detected this would have occurred. It did not.
Had a qualified engineer been required to review the plans, the probability (indeed, I am satisfied, the certainty) is that he or she would have detected the inadequacy of the connection of the edge beam and the bearing plate. On doing so the probability is that an engineer would not have certified the drawings unless they had been amended to accord with the requirements described by Mr Bruechle in his evidence. That is, if 10 mm bolts were to be used, then they would have been at centres of 400 mm and a bearing plate with sufficient edge clearance would have been specified. In those circumstances even if the builder had been as negligent as the builder here by substituting 8 mm electroplated bolts, there would still have been a level of redundancy three times greater than existed in the balcony as built. That a balcony so constructed would still have failed much sooner than it should have, I do not doubt. I am satisfied however that if constructed in that manner it would probably not have failed on the occasion that the plaintiff walked onto it.
In either case in my view it can be seen that the fault of the third defendant was a necessary condition of the occurrence of the harm to the plaintiff. In my view it is also appropriate for the scope of the third defendant's liability to extend to that harm.

Conclusion

It follows that in my view the second and third defendants are liable for the injury suffered by the plaintiff and I so find.

No submission was made at trial by either the second or third defendant about relative degrees of contribution. That was understandable in the context of then unknown outcome. I will hear from the plaintiff and the second and third defendants with respect to the issue of contribution and from all parties in due course with respect to costs.