Turjman v Stonewall Hotel Pty Ltd - [2011] NSWCA 392

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Turjman v Stonewall Hotel Pty Ltd [2011] NSWCA 392
Hearing dates: 26 September 2011
Decision date: 21 December 2011
Before: Bathurst CJ & Allsop P at [1], Beazley JA at [13], Giles JA at [14], Sackville AJA at [112]
Decision:
In each appeal, appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: NEGLIGENCE - ceiling collapse in hotel - plaintiffs injured - ceiling not properly installed in 1993 - licence as place of public entertainment renewed in 2002 - structural engineer's certificate that premises structurally sound and capable of withstanding loadings arising from its use - owner of hotel failed to inform structural engineer of activities (dancing) at hotel - owner of hotel breached duty of care requiring that it take reasonable care to avoid foreseeable risk of injury to plaintiffs - but found at trial that factual causation not established between breach and injury to plaintiffs - whether leave to argue on appeal for breach of implied warranty that premises as safe for their purpose as reasonable care and skill could make them - facts not fully found - otherwise not in interests of justice - leave refused - whether finding as to factual causation erroneous - what structural engineer would have done if informed of the dancing - analysis of experts' evidence - (by majority) finding not erroneous.
Legislation Cited: Civil Liability Act 2002 (NSW)
Cases Cited: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479;
Calvert v Stolznow (1982) 1 NSWLR 175;
Commercial Union Assurance Co ofAustralia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389; (1991) 6 ANZ Ins Cas 61-042;
Elayoubi v Zipser [2008] NSWCA 335;
Fox v Buffalo Park 47 NYS 788 (1897);
Maclenan v Segar (1917) 2 KB 325;
Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631;
Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1;
Voli v Inglewood Shire Council (1963) 110 CLR 74;
Water Board v Moustakas (1988) 180 CLR 491.
Category: Principal judgment
Parties: Mark Turjman -Appellant (CA 176922/04)
Corey Butler Appellant (CA 176923)
Steven McKenzie - Appellant (CA 176924/04
Antonino Tati - Appellant (CA 269424/05)
Representation: S Campbell SC & G Wilson - Appellants
M Windsor SC & J Chapman - Respondent
Keddies Lawyers, Redfern - First, Second and Third Appellants
Pryor Tzannes & Wallis, Mascot - Fourth Appellant
Yeldham Price O'Brien Lusk - Respondent

File Number(s): 2004/176922 2004/176923 2004/176924 2005/269424
Decision under appeal

Citation:

Al Mousawy v Howitt-Stevens Constructions Pty Ltd & Ors [2010] NSWSC 122

Before:

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2011] NSWCA 392
Decision Date: 21 December 2011

CaseChat Overview and Summary

In *Turjman v Stonewall Hotel Pty Ltd*, the plaintiffs, who were injured when a hotel ceiling collapsed, appealed to the Court of Appeal of New South Wales against a finding at trial that factual causation had not been established between the hotel owner's breach of duty and their injuries. The hotel owner, Stonewall Hotel Pty Ltd, had renewed its licence as a place of public entertainment in 2002, after the ceiling had been installed in 1993. A structural engineer had provided a certificate stating the premises were structurally sound, but the hotel owner had failed to inform the engineer of activities such as dancing that took place at the hotel.

The primary legal issues before the Court of Appeal were whether the finding of no factual causation was erroneous, and whether leave should be granted to argue on appeal a breach of an implied warranty that the premises were as safe for their purpose as reasonable care and skill could make them. The court considered the evidence of the structural engineers regarding what the engineer would have done had they been informed of the dancing activities.

By majority, the Court of Appeal held that the finding of no factual causation was not erroneous. The court analysed the experts' evidence and concluded that it was not in the interests of justice to grant leave to argue the implied warranty claim, particularly as the facts had not been fully found in relation to that issue.

Consequently, in each appeal, the Court of Appeal dismissed the appeals with costs.

Orders

Orders of the court

In each appeal, appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BATHURST CJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: BATHURST CJ

Full text does not contain this section.

Medium Neutral Citation:	Turjman v Stonewall Hotel Pty Ltd [2011] NSWCA 392
Hearing dates:	26 September 2011
Decision date:	21 December 2011
Before:	Bathurst CJ & Allsop P at [1], Beazley JA at [13], Giles JA at [14], Sackville AJA at [112]
Decision:	In each appeal, appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	NEGLIGENCE - ceiling collapse in hotel - plaintiffs injured - ceiling not properly installed in 1993 - licence as place of public entertainment renewed in 2002 - structural engineer's certificate that premises structurally sound and capable of withstanding loadings arising from its use - owner of hotel failed to inform structural engineer of activities (dancing) at hotel - owner of hotel breached duty of care requiring that it take reasonable care to avoid foreseeable risk of injury to plaintiffs - but found at trial that factual causation not established between breach and injury to plaintiffs - whether leave to argue on appeal for breach of implied warranty that premises as safe for their purpose as reasonable care and skill could make them - facts not fully found - otherwise not in interests of justice - leave refused - whether finding as to factual causation erroneous - what structural engineer would have done if informed of the dancing - analysis of experts' evidence - (by majority) finding not erroneous.
Legislation Cited:	Civil Liability Act 2002 (NSW)
Cases Cited:	Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Calvert v Stolznow (1982) 1 NSWLR 175; Commercial Union Assurance Co ofAustralia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389; (1991) 6 ANZ Ins Cas 61-042; Elayoubi v Zipser [2008] NSWCA 335; Fox v Buffalo Park 47 NYS 788 (1897); Maclenan v Segar (1917) 2 KB 325; Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631; Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1; Voli v Inglewood Shire Council (1963) 110 CLR 74; Water Board v Moustakas (1988) 180 CLR 491.
Category:	Principal judgment
Parties:	Mark Turjman -Appellant (CA 176922/04) Corey Butler Appellant (CA 176923) Steven McKenzie - Appellant (CA 176924/04 Antonino Tati - Appellant (CA 269424/05)
Representation:	S Campbell SC & G Wilson - Appellants M Windsor SC & J Chapman - Respondent Keddies Lawyers, Redfern - First, Second and Third Appellants Pryor Tzannes & Wallis, Mascot - Fourth Appellant Yeldham Price O'Brien Lusk - Respondent
File Number(s):	2004/176922 2004/176923 2004/176924 2005/269424
Decision under appeal	Citation: Al Mousawy v Howitt-Stevens Constructions Pty Ltd & Ors [2010] NSWSC 122 Before: