Appeal Court apportions liability equally

by Resolve Editor Kate Tilley

The NSW Appeal Court has found a stonemason and a bowls club equally liable after a three-year-old girl was killed by a falling memorial headstone.

The girl died on 26 November 2016 when an Anzac memorial headstone in the grounds of the Black Head Bowling Club (now known as Hallidays Sports Club), about 300km north of Sydney, became dislodged from its base and fell on her. At the time, a 10-year-old boy was riding on the monument as if it were a horse.

The District and Appeal Courts agreed the underlying cause of the collapse was the monument had been poorly constructed in 1997.

Seven members of Indy Lee Henderson’s family sued the bowls club; John Thomas Edstein, the stonemason who had constructed and installed the monument; and CGU, which insured the stonemason’s company, JJ Edstein & Sons Pty Ltd, for damages for nervous shock. The club cross-claimed against Mr Edstein and CGU.

The family was celebrating the girl’s grandmother’s birthday when the incident occurred.

Club liable

The primary judge in the NSW District Court found the club was liable in negligence and ordered judgement against it in favour of the family.

Judge Curtis found the club negligently failed to take reasonable precautions to:

• retain an engineer to assess and certify the stability and integrity of the proposed method of installation of the monument (the certification precaution), and
• to perform a push test immediately after construction and again 10 years later that would have revealed the instability of the headstone (the push test precaution).

He found Mr Edstein was negligent, but the scope of his liability ought not to extend to the harm caused, and the CGU policy did not cover the liability. The club was ordered to pay the costs of the family, Mr Edstein and CGU. Judge Curtis found the CGU policy did not cover the liability because Indy Henderson’s death was not within the period of insurance.

The club appealed against the judgement and the costs order. The family members cross-appealled the judgement in favour of Mr Edstein to also hold him liable. All matters involving CGU were resolved and the proceedings against it were discontinued.

In the Appeal Court, Justices Payne and Simpson found, on the issue of the club’s liability, that Judge Curtis’s finding the club had a duty to engage an engineer to assess and certify the stability and integrity of the proposed method of installation in 1997 was correct.

Risk foreseeable

The majority judgement found it was foreseeable the headstone might detach from its base and injure children playing nearby. The 1m tall monument weighed 400kg and was affixed to its base by “a thin portion of the headstone only 150mm wide”.  “It was neither far-fetched nor fanciful … the headstone might detach and fall on a child playing near it … the risk of harm was not insignificant.”

Justices Payne and Simpson said: “Had the club engaged an engineer at the outset, the evidence is clear that the fatal defect in the construction would have been discovered.”

Justice Adamson dissented, finding none of the preconditions of liability in s5B of the Civil Liability Act 2002 (NSW) had been fulfilled by the club. She found the risk of harm was not foreseeable because it was not a risk of which the club knew or ought to have known.

She said the risk was not significant because, had the monument been properly constructed, it would have retained its structural integrity for at least such time as there was no visible defect.

Push test unreasonable

Justices Payne and Simpson said the push test was not a reasonable precaution the club should take after construction or 10 years later as there was no evidence that pushing the monument would have been more likely than not to reveal the defect.

The club was not put on notice by any observable sign the monument was structurally unsound. The club’s exercise of reasonable care did not require it to apply the push test.

Justice Adamson said the primary judge’s finding a duty to perform a push test was owed was based on an erroneous application of the effect of evidence given by the plaintiffs’ expert witness.

The three judges agreed the primary judge’s finding of scope of liability for Mr Edstein was erroneous and there was no reason (including Mr Edstein’s insurance status or because the primary judge found the club liable) why responsibility for the harm should not have been imposed on a negligent party.

They found Mr Edstein was a qualified, experienced stonemason who should be found liable because the monument, if constructed properly, could be expected to remain in place for many years and last without maintenance for more than a century.

Sealant incorrect

Justice Adamson said: “The joint experts opined that the method of construction was not consistent with the practice of a competent stonemason in 1997 in several respects.”

Dowels connecting the headstone and the base were too short and too narrow; silicone sealant was used to secure the dowels instead of an epoxy or cementitious grout; a continuous bedding mortar should have been applied to the base; and packers should not have been used in the absence of bedding mortar.

“The joint experts opined that, if the monument had been installed in accordance with ordinary stonemason practice, it would have been able to resist the ordinary forces (including lateral forces) applied by children playing on the monument.”

Justices Payne and Simpson found Mr Edstein’s culpability was equivalent to that of the club. The court ordered each to pay 50% of the agreed damages.

Hannah Glover, special counsel at Barry Nilsson, said the case highlighted several factors, including upholding precedent that a structure’s designer and installer is liable for injuries sustained because of defects in its design or construction.

She said: “The duty of care to ensure a structure is free from defects and does not pose a risk of harm … extends to both the designer [and] the entity with oversight of the structure, such as the club in this case, being the property owner.”

Black Head Bowling Club Ltd v Harrower [2023] NSWCA 267 judgement 9/11/23
Barry Nilsson case notes