Black Head Bowling Club Ltd v Harrower

1. [1]

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

Appeal and cross-appeal regarding Mr Edstein

1. [2]

   We agree with Adamson JA that the decision of the primary judge concerning the effect of s 5D(4) of the Civil Liability Act 2002 (NSW) on Mr Edstein’s liability must be set aside. We agree with her Honour that none of the matters raised by either notice of contention (which are in any event identical) should be accepted, for the reasons her Honour gives.

2. [3]

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

3. [4]

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

Appeal regarding Black Head Bowling Club Ltd

1. [5]

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

2. [6]

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

3. [7]

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

4. [8]

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

5. [9]

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

6. [10]

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

7. [11]

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

8. [12]

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

9. [13]

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

   1. (1)

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

   2. (2)

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

10. [14]

    We will address these two precautions in turn.

11. [15]

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

    1. (1)

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

    2. (2)

       the risk was not insignificant; and

    3. (3)

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

12. [16]

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

13. [17]

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

    1. (1)

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

    2. (2)

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

14. [18]

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

15. [19]

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

16. [20]

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

17. [21]

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

18. [22]

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

19. [23]

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

20. [24]

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

21. [25]

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

22. [26]

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

23. [27]

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

24. [28]

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

25. [29]

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

26. [30]

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

27. [31]

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

28. [32]

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

29. [33]

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

    1. (1)

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

    2. (2)

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

    3. (3)

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

    4. (4)

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

    5. (5)

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

    6. (6)

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

    7. (7)

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

30. [34]

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

    1. (1)

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

    2. (2)

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

31. [35]

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

32. [36]

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

33. [37]

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

34. [38]

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

35. [39]

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

36. [40]

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

37. [41]

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

38. [42]

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

39. [43]

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

40. [44]

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

41. [45]

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

42. [46]

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

43. [47]

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

44. [48]

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

45. [49]

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

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

1. [50]

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

2. [51]

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

3. [52]

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

4. [53]

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

5. [54]

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

6. [55]

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

Conclusion and proposed orders

1. [56]

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

2. [57]

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

3. [58]

   For the foregoing reasons we would make the following orders:

   1. (1)

      Allow the appeal by the Club on ground 6 only.

   2. (2)

      Otherwise dismiss the appeal.

   3. (3)

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

   4. (4)

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

   5. (5)

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

   6. (6)

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

   7. (7)

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

   8. (8)

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

   9. (9)

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

4. [59]

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

5. [60]

   ADAMSON JA: This appeal concerns liability for the death of a 3-year old girl (the deceased) who was killed on 26 November 2016 when an ANZAC memorial headstone (the monument) in the grounds of the Black Head Bowling Club Ltd (the Club) became dislodged from its base and fell on her. At the time, a 10-year old boy was riding the monument as if it were a horse, thereby creating lateral forces which were the immediate cause of the dislodgment. The underlying cause of the collapse was that the monument had been poorly constructed in 1997.

Introduction

1. [61]

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

2. [62]

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

3. [63]

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

4. [64]

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

The reasons of the primary judge

1. [65]

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

2. [66]

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

   1. (1)

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

   2. (2)

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

3. [67]

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

4. [68]

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

5. [69]

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

6. [70]

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

7. [71]

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

8. [72]

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

9. [73]

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

10. [74]

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

11. [75]

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

The grounds of appeal

1. [76]

   The Club appeals on the following grounds:

2. [77]

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

The facts

1. [78]

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

2. [79]

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

3. [80]

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

4. [81]

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

5. [82]

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

6. [83]

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

   1. (1)

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

   2. (2)

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

7. [84]

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

8. [85]

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

9. [86]

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

10. [87]

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

11. [88]

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

12. [89]

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

13. [90]

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

14. [91]

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

15. [92]

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

16. [93]

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

17. [94]

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

18. [95]

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

19. [96]

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

20. [97]

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

21. [98]

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

22. [99]

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

23. [100]

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

24. [101]

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

25. [102]

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

26. [103]

    Mr Lloyd asked Mr Gohil to make the following assumptions:

    1. (1)

       the stonemason did not recommend any maintenance of the monument;

    2. (2)

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

    3. (3)

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

    4. (4)

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

27. [104]

    The following exchange occurred on the basis of those assumptions:

28. [105]

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

29. [106]

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

30. [107]

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

31. [108]

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

    1. (1)

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

    2. (2)

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

32. [109]

    Mr Lloyd also submitted that Mr Gohil’s agreement with the propositions put to him by Mr Watson – that if anyone had conducted a push test at any time between the date on which the monument was constructed and 26 November 2016, the instability in the monument which caused it to collapse would have been detected – ought not be accepted. He submitted that, given the monument was exposed to incidental forces from time to time, including when it was cleaned annually prior to ANZAC Day services, the push test would, in order to detect any issue with the structural integrity of the monument, need to impart more force than the incidental forces to which the monument was exposed. Further, he submitted that the imprecise nature of the so-called “push test” and the means by which the evidence was elicited did not provide a sound basis to find that any employee of the Club who performed the “push test”, would have pushed sufficiently hard on the monument to detect the instability inherent in the monument from the time of its construction.

33. [110]

    While Mr Morris SC, who appeared with Ms Gerace and Ms Green for the plaintiffs, sought to support the Club’s liability based on the evidence of Mr Gohil, I do not consider that, properly analysed, it can provide such support. Evidence must be viewed as a whole. Concessions made in cross-examination are relevant to an assessment as to what, if any, of his evidence in chief remains. I accept Mr Lloyd’s submission that Mr Gohil’s evidence did not, ultimately, support the imposition of the construction duty. Indeed, it told against the imposition of any such duty. The joint experts’ evidence also tended against the imposition of a construction duty. Since Mr Gohil’s evidence did not support the imposition of such a duty, I consider that the primary judge’s reliance on Mr Gohil’s evidence to find a construction duty was erroneous for this reason and for the reasons given with respect to grounds 1 and 2 below.

34. [111]

    The testing duty is more problematic because Mr Watson cross-examined Mr Gohil after Mr Lloyd’s cross-examination had concluded. However, Mr Watson’s client (CGU) had the same interest as the plaintiffs in having the Club found liable. Thus, he had the benefit of being able to conduct a “friendly cross-examination” and elicit, through leading questions, answers which appeared to undermine the concessions obtained by Mr Lloyd. Objection might have been, but was not, taken to Mr Watson’s approach and a direction sought under s 42 of the Evidence Act 1995 (NSW) that Mr Gohil was not to answer particular questions: see Elphick v Westfield Shopping Centre Management Company Pty Limited [2011] NSWCA 356; (2011) 216 IR 41 at [88] (Whealy JA, Young JA and Sackville AJA agreeing). However, in my view, the forensic value of Mr Gohil’s answers is, in any event, substantially reduced by the circumstances in which they were elicited. It is also significant that the monument had been in situ for about twenty years without incident and without any visible indication of any structural defect, notwithstanding its exposure to extremes of weather, children using it for their play and the forces involved in cleaning it. I consider it to be telling that Mr Gohil maintained that he had said that the monument had to be “inspected” every five years (for distress, since this might indicate some issue with structural integrity), which is highlighted in the extract from his cross-examination set out above.

35. [112]

    Further, Mr Gohil’s evidence as to the push testing rose no higher than that it could have been done. In addition, the proposition (with which he agreed) that a push test conducted between the date of construction of the monument and the date of the incident would have revealed instability was highly speculative and at odds with the evidence of those associated with the Club who cleaned the monument in preparation for ANZAC Day every year.

36. [113]

    In my view, Mr Gohil’s evidence, when read as a whole, supported neither the imposition of a construction duty nor the imposition of a testing duty in circumstances where there was no visible sign of distress in the monument (as was the case). The primary judge’s findings that both of these duties were owed was based on an erroneous appreciation of the effect of his evidence.

37. [114]

    Nor did the joint experts provide any support for the imposition of such a duty since the effect of their evidence was, as set out above, that:

    1. (1)

       no maintenance of the monument was required;

    2. (2)

       structural instability would occur only in limited and generally exceptional circumstances and, if so, would generally be visually apparent to a lay observer; and

    3. (3)

       periodic inspections of monuments by an engineer were not required.

38. [115]

    Further, for the reasons given in Mr Lloyd’s submissions, which I accept, the primary judge’s finding that conducting a push test would have avoided the harm was, in my view, erroneous, having regard to the terms of the evidence, the means by which it elicited, and its failure to take account of the other forces to which the monument was, from time to time, subjected.

The Club’s appeal against the primary judge’s orders

1. [116]

   In light of the above observations, I turn now to the Club’s grounds of appeal.

2. [117]

   The respondent submitted that an occupier such as the Club would know, as a matter of common sense and ordinary experience, that people, and especially children, interact with structures which may cause harm to them if not securely affixed; that the drawings prepared on its behalf did not specify the method by which the headstone was to be affixed to the base; that an upright headstone on a thin base could topple if not securely fixed; that the Club had permitted the headstone to be installed without knowing or supervising how it was done; and the Club neither sought, nor obtained, express assurances of the stability of the monument. It submitted that the primary judge’s findings regarding the foreseeability of risk of harm were correct in light of these matters.

3. [118]

   The following matters are also relevant to the foreseeability of the risk of harm. First, the Council assessed the application and approved it without requiring engineering plans or specifications or imposing conditions requiring periodic maintenance or inspection of the monument. Secondly, the monument was installed by an ostensibly qualified and experienced stonemason (who ultimately accepted that its construction was defective and did not comply with usual practice for stonemasons), who could be expected to construct the monument competently. Thirdly, although its manner of construction was defective, the defects were latent in that they could not be visually detected after construction. Fourthly, for almost 20 years, the monument withstood forces applied to it, which included human contact (whether from children or adults), wind and rain, and annual cleaning, including with a high pressure cleaner. Fifthly, the monument showed no observable signs of deterioration. Sixthly, had the monument been constructed properly, it would have lasted for at least 100 years during which period its structural integrity would not have been affected by any deterioration in the surface of the sandstone.

4. [119]

   There was no challenge to the primary judge’s finding that it was reasonably foreseeable that a child might mount the monument and thereby impose lateral forces on its structure.

5. [120]

   However, it does not follow that the risk of harm was reasonably foreseeable, given the matters referred to above. I am persuaded that the primary judge’s finding that the risk of harm was foreseeable by the Club was erroneous. Accordingly, ground 1 has been made out.

6. [121]

   As referred to above, the primary judge found that the Club owed the plaintiffs the construction duty (to retain an engineer to assess and certify the stability and integrity of the proposed method of construction of the monument); and the testing duty (to perform a “push test”, which could be conducted by a member of staff, on the monument immediately after its construction and every 10 years thereafter).

7. [122]

   The plaintiffs did not plead the construction duty. Its allegation of the testing duty did not accord with the duty found by the primary judge. At paragraph 53(f) of the further amended statement of claim, the plaintiffs alleged that the Club had a duty which it breached to “periodically check by structural engineering assessment the ongoing structural integrity of the monument and the continuing integrity of the method of affixation of the headstone to the base and that the monument was safe and could not topple”.

8. [123]

   Although the plaintiffs did not plead the construction duty, the matter was sufficiently raised by the evidence (much of which has been referred to above) to warrant departure from the pleaded case: Dare v Pulham (1982) 148 CLR 658 at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ); [1982] HCA 70.

9. [124]

   For the reasons given above, the evidence did not ultimately support the imposition of the construction duty. While the imposition of a duty of care does not require expert evidence and is ultimately a matter for the primary judge, the case which the plaintiffs had to meet was based on Mr Gohil’s evidence. In these circumstances, I am not persuaded that, where the primary judge’s assessment of Mr Gohil’s evidence was, on proper analysis, erroneous, this Court ought nonetheless refrain from disturbing the primary judge’s findings that discharge of the construction duty and the testing duty comprised reasonable precautions which the Council was obliged to take, having regard to the risk of harm. To the contrary, in my view, the plaintiffs have not discharged their onus of proving that the precautions for which they contended were reasonable precautions.

10. [125]

    In my view, the risk of harm, being the risk of injury from latent instability of the monument, was not foreseeable in that it was not a risk of which the Club knew or ought to have known. The risk was not significant since, had the monument been properly constructed (and there was no reason for the Club to suspect that it had not been, given that it had retained a competent and experienced stonemason to perform the work), it would have retained its structural integrity for at least as long as there was no visible defect and could have been expected to retain it for over a hundred years. Further, in the circumstances set out above, a reasonable person in the Club’s position would not have taken the precautions for which the plaintiffs contended (namely, requiring the involvement of a structural engineer in the construction of the monument, or testing it in the absence of any visible indication of a flaw). Thus, none of the pre-conditions for liability in s 5B of the Civil Liability Act 2002 (NSW) has been fulfilled in respect of the Club.

11. [126]

    The Club sought to tender extracts of the City of Greater Taree Monuments/Memorial Register (the Register) dated December 2001 (the extract). The extract included a statement that the monument had been “maintained in pristine condition”. Mr Lloyd submitted that the extract comprised the basis for assumption (2) that Mr Gohil was asked to make during cross-examination as to whether a push test needed to be performed on the monument prior to the incident. The primary judge rejected the tender of the register, on the basis that it had not been shown that the author of the register had personal knowledge of the condition of the monument.

12. [127]

    Section 183 of the Evidence Act entitles a trial judge to draw inferences from a document, if a question arises under the Evidence Act about its admissibility. I consider that a compelling inference arises from the extract: that someone employed or retained by the Council to contribute to, or maintain, the Register observed the monument and formed the judgment that it had been maintained in pristine condition. Thus, the present case is to be distinguished from Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 (Lithgow City Council). In that case, ambulance officers recorded an opinion about the mechanism of a fall (“?Fall from 1.5 metres onto concrete”) which none of them could have witnessed as they had been called to the scene after the fall had occurred. Therefore, in Lithgow City Council, the only reasonable inferences were that the officer who had made the record had neither observed the fall nor heard how it had happened by anyone who had observed the fall (hence the “?” before the surmise as to how the injured person came to be lying on the concrete, namely, that the person had fallen from a height of 1.5m).

13. [128]

    Thus, the “lay opinion” (if it be such) was inadmissible because s 78(a) of the Evidence Act allows evidence of lay opinions to be given, relevantly, only where “the opinion is based on what the person saw, heard or otherwise perceived”. Plainly, the person who made the observation of the monument did not need to be the person who inserted the statement in the extract. A hearsay statement in a business record on the basis of information directly or indirectly supplied by a person who might reasonably be supposed to have personal knowledge of the fact is admissible: s 69(2)(b) of the Evidence Act.

14. [129]

    For these reasons, ground 3 has been made out.

15. [130]

    Because ground 4 concerns the primary judge’s reasons at [13] and [14], it is convenient to set out [12]-[14] below:

16. [131]

    As the sub-grounds to ground 4 are related, it is convenient to address them together.

17. [132]

    The Club alleged that the finding at [13] was erroneous because Mr Gohil had, indeed, resiled from that evidence. Mr Lloyd contended that the assumptions on the basis of which Mr Gohil had conceded that the test would not be required had each been made out either wholly or substantially. The primary judge did not identify which of the assumptions were not proved or how any unproved assumption detracted from Mr Gohil’s concession.

18. [133]

    For the purposes of considering this ground, it is convenient to set out the assumptions again, which were as follows:

    1. (1)

       the stonemason did not recommend any maintenance of the monument;

    2. (2)

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

    3. (3)

       after 2001, the monument was cleaned annually for about 30 minutes, using a cloth rag or sponge, by someone with an engineering background; and

    4. (4)

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

19. [134]

    Assumption (1) might more accurately have been framed as a negative proposition, there being no evidence from Mr Edstein that he had recommended any maintenance, from which it could more easily be inferred that no such recommendation had been given: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 and Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418–19 (Handley JA). Further, the inference was supported by the joint experts that no such maintenance was necessary.

20. [135]

    Assumption (2) would have been established in terms, had the extract not been erroneously excluded. However, the evidence elicited from Mr O’Hara and Mr Aurisch was to similar effect: namely, that the monument was cleaned and showed no signs of deterioration in the period between its construction and the incident. It is not necessary that each assumption put to a witness be made out in full. It is sufficient if the assumption is substantially made out: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 (Paric) at 846 (Mason ACJ, Wilson, Brennan, Deane and Dawson JJ). I regard any difference between assumption (2) and the effect of the evidence of those witnesses as “trifling”, to use the word used by Wigmore in the passage quoted in Paric at 846.

21. [136]

    Assumption (3) was substantially established by the evidence of Mr O’Hara and Mr Aurisch. Although the direct evidence of cleaning did not go back to 2001, it can be inferred that a similar regime was adopted. Further, had there been any visible sign of deterioration, it could have been expected to have been worse in the years closer to the incident than in the earlier years which pre-dated Mr O’Hara’s and Mr Aurisch’s involvement in the cleaning of the monument. In so far as it did not contain a reference to the high pressure cleaning, it might have tended to understate the forces to which the monument was subjected but did not materially affect the assumption.

22. [137]

    Assumption (4) was established by the unchallenged evidence of Mr O’Hara.

23. [138]

    As each of the assumptions put to Mr Gohil was established, there was no reason to reject the concessions he made on the basis of them.

24. [139]

    The balance of the ground concerns the extent to which the concessions made by Mr Gohil during Mr Lloyd’s cross-examination were affected by Mr Watson’s cross-examination. For the reasons given above, I consider that, on proper analysis, the answers given by Mr Gohil to Mr Lloyd ought be accepted and that Mr Gohil’s acceptance of propositions put to him by Mr Watson does not alter this conclusion.

25. [140]

    For the reasons given above, each of the sub-grounds to ground 4 has been made out.

26. [141]

    This ground has been addressed sufficiently in the analysis of Mr Gohil’s evidence set out above. I consider the ground to be made out, for the reasons given above.

27. [142]

    Ground 6 of the Club’s appeal corresponds with the ground of the plaintiffs’ cross-appeal and will, therefore, be addressed with the cross-appeal. Ground 8 (as pressed in its amended form) will be addressed at the conclusion, if necessary.

The plaintiffs’ notice of contention in respect of the judgment in their favour against the Club

1. [143]

   The plaintiffs allege that the judgment in their favour against the Club should be affirmed on the following grounds, which they accept are different from those of the primary judge:

2. [144]

   In paragraph 1 of the plaintiffs’ notice of contention and in their submissions, the plaintiffs attempt to recast the risk of harm differently from the way in which they conducted their case before the primary judge. Although the further amended statement of claim did not, in terms, articulate the risk of harm, it is fairly clear from the pleading when read as a whole that the risk relied upon was that of the headstone of the monument toppling with lateral force applied to it when children were playing near, around or on the monument. This was the basis on which the trial proceeded.

3. [145]

   At the trial, there was little difference between the plaintiffs and the Club as to the formulation of the risk of harm. The plaintiffs in their written submissions identified the risk of harm as the risk that the headstone “could fall with the application of lateral force causing crushing injury or death to persons in the vicinity as it fell”. The Club identified the risk of harm in its written submissions as the risk of the pedestal (headstone) of the monument detaching from the base and causing injury to a person or person in its vicinity. The primary judge accepted these formulations of the risk of harm. The plaintiffs did not submit that the risk of harm arose from the failure to inspect the condition of structures on the Club’s land.

4. [146]

   In these circumstances, ground 1 of the notice of contention ought not be entertained. This Court ought not make findings which were not based on how the case was run at trial and which, accordingly, could not have been made by the primary judge.

5. [147]

   Ground 2.1 identifies a reasonable precaution which was neither pleaded nor relied upon at trial (which would explain the absence of a finding about it). Further, as the Club was only the occupier of the land, it could not reasonably be expected to know whether drawings prepared by, say, the Edstein company, were “proper and adequate”.

6. [148]

   Ground 2.2 is, in substance, a claim that the Club, acting reasonably, ought to have engaged a structural engineer to provide directions to the Edstein company as to the installation of the monument. This submission has been addressed in my reasons with respect to grounds 2.1 and 2.2 of the Club’s appeal. For the same reasons, ground 2.2 ought be rejected since, the evidence, when properly analysed, did not support it.

7. [149]

   Grounds 2.3 and 2.4 would appear to correspond with the reasonable precaution found by the primary judge (conducting a push test) and have been addressed above in connection with grounds 2.3, 4 and 5 of the Club’s appeal.

8. [150]

   The plaintiffs submitted that they had established factual causation with respect to the requirement for a certificate in ground 2.2.

9. [151]

   The Club accepted that if it had a duty to obtain a pre-construction certificate from a structural engineer, factual causation would be established (since the putative engineer would not have certified the method of installation actually adopted by the Edstein company because it was inherently unsafe). However, the Club contended, and I accept, that if all that was required was a certificate from the stonemason (in this case, the Edstein company), then it could not be inferred that there would have been any different result as the fact of the installation carried with it an implied representation that it had been properly done and was fit for purpose.

10. [152]

    This ground overlaps with ground 5 of the Club’s appeal and has been addressed above.

Ground 6 of the Club’s appeal and the sole ground of the plaintiffs’ cross-appeal against the judgment against them in favour of Mr Edstein

1. [153]

   The ground (which is identical in the Club’s appeal and the plaintiffs’ cross-appeal) is as follows:

2. [154]

   As is apparent from the extract from the primary judge’s reasons set out above, his Honour considered there to be several reasons why it was not appropriate for the scope of Mr Edstein’s liability to extend to the harm suffered by the plaintiffs.

3. [155]

   Section 5D(1)(b) of the Civil Liability Act (referred to as the scope of liability limb of causation) required the primary judge, once factual causation (in s 5D(1)(a)) had been established, to determine whether “it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused.” This poses a normative question which, in non-novel cases falling within an established class, is properly answered by the application of precedent: Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [22] (French CJ, Crennan, Kiefel, Gageler and Keane JJ).

4. [156]

   If s 5D(1)(b) is to be relied upon, it ought to be pleaded. In the present case, it was pleaded by the Club in its defence against the plaintiffs’ claim and, although not pleaded by CGU, was relied upon in support of its submission that Mr Edstein would not be found liable. It was not pleaded by Mr Edstein against the plaintiffs. CGU’s written submissions as follows would appear to form the basis for the primary judge’s finding in Mr Edstein’s favour:

5. [157]

   In oral submissions before the primary judge, both Mr Edstein and CGU made submissions about the effect of s 5D(1)(b). Accordingly, although Mr Edstein did not plead reliance on s 5D(1)(b), I consider that it was open to him to rely on it, having regard to the matters referred to above.

6. [158]

   Mr Collins, who appeared with Mr Chen for Mr Edstein, sought, in this Court, to argue that the Club had not excluded the possibility that the monument was only ever intended to be temporary (thereby explaining the use of silicon sealant) and that Mr Edstein ought not to have been found to be liable to the plaintiffs. For the reasons given below regarding Mr Edstein’s notice of contention, this submission was neither available nor capable of affecting whether Mr Edstein was negligent, nor whether the scope of his liability ought extend to the harm caused to the plaintiffs.

7. [159]

   I regard the primary judge’s finding of scope of liability as erroneous. Mr Edstein was a qualified and experienced stonemason, who should be found liable for the following reasons. First, Mr Edstein admitted that he installed the monument, a structure which by its nature, could be expected to remain in place at the Club for many years and which would, if properly constructed, have been expected to last without maintenance for over a century. Secondly, authorities establish that a designer and installer of a structure is liable for injuries sustained by persons as a result of defects in its design or construction: see, for example, Voli v Inglewood Shire Council (1963) 110 CLR 74; [1963] HCA 15 (Voli).

8. [160]

   In Voli, the appellant, Mr Voli, was injured when a stage collapsed in a Council hall in Texas, Queensland, due to the inadequate dimensions of the joists. He sued the builder, the architect and the Council. The trial judge rejected all three claims. Mr Voli appealed to the High Court from the judgments in favour of the architect and the Council. The High Court (Windeyer J, Dixon CJ and Owen J agreeing) found that the architect was negligent on the basis that the plans had been negligently drawn (and had specified the wrong dimensions for the joists) and the Council was negligent, both because it had certified the plans (which specified the weight which the stage would have to bear, which could not be borne by joists of the dimensions depicted in the drawings) and because it occupied the building.

9. [161]

   Where a stonemason designs and installs a structure and does so negligently, it is, in my view, appropriate that the stonemason’s liability extend to the harm caused. This is particularly so in a case such as the present when such structures are likely to last well beyond the memories of those who engaged the stonemason to design and construct the monument and there were no visible defects to put the Club or anyone else on notice of the latent defect in the monument which was engendered by its negligent construction and installation.

10. [162]

    The primary judge’s reasons for finding that the scope of liability ought not extend to Mr Edstein reveal error. That someone does an act as an employee may make the employer vicariously liable for the act but does not determine whether the employee is liable as a tortfeasor. It is also erroneous to take into account in the stonemason’s favour that the structure has been in place for 19 years when it was not suggested that any unforeseen intervening act had weakened it or that the defect in the method of installation was other than a time-bomb which could harm someone at some stage in the future when the lateral forces reach a sufficient level to expose the latent defect and cause the monument to collapse.

11. [163]

    Further, I consider the last reason to be erroneous. That the primary judge found the Club liable could not properly, in the circumstances, provide a warrant for his Honour to refrain from imposing liability on Mr Edstein.

12. [164]

    For these reasons, I consider that ground 6 of the Club’s appeal and the sole ground of the plaintiffs’ cross-appeal have been made out.

Mr Edstein’s amended notice of contention in respect of the cross-appeal

1. [165]

   In these circumstances, it is necessary to address Mr Edstein’s amended notice of contention in respect of the appeal and the cross-appeal, the grounds of which are as follows:

2. [166]

   As referred to above, it is necessary to set out, in summary form, how the issues of the application for leave to withdraw an admission made on the pleadings and the alleged error in rejecting the tender of the transcript of the application arose.

3. [167]

   As referred to above, in his defence, Mr Edstein admitted the allegation in paragraph 30 of the statement of claim that “between 5 March and 25 March 1997, [Mr Edstein] erected and installed the monument on the premises” (his defence to the statement of claim filed on 12 August 2020). An amended statement of claim was filed which added to paragraph 30, “either in his own right or as an employee of [the Edstein company]” before the word “erected”. No defence to the amended statement of claim was filed.

4. [168]

   However, in paragraph 12 of his defence to the further amended statement of claim filed on 7 July 2022, Mr Edstein purported to withdraw the earlier admission and alleged:

5. [169]

   In paragraph 12 of the Club’s cross-claim against Mr Edstein, filed on 8 May 2020, it alleged that “[o]n a date at some time before 25 March 1997, [Mr Edstein] constructed and erected the Monument on the Premises”. In his defence filed on 12 August 2020, Mr Edstein admitted this paragraph.

6. [170]

   However, in his defence to the amended cross-claim filed on 7 July 2022, Mr Edstein purported to withdraw his earlier admission and alleged in paragraph 9:

7. [171]

   At the commencement of the hearing before the primary judge on 10 October 2022, Mr Collins, who also appeared for Mr Edstein before the primary judge, foreshadowed an application for leave to rely on the amended pleadings referred to above, notwithstanding the admissions made in the earlier pleadings. Mr Lloyd objected to the application being dealt with in the absence of a notice of motion.

8. [172]

   On 11 October 2022, at the commencement of the second day of hearing, Mr Collins was granted leave to file in Court a notice of motion seeking leave to withdraw the admissions in paragraph 11 of the defence filed on 12 August 2020 and the admission in paragraph 9 of the defence to the first cross-claim filed on 12 August 2020 in answer to the first cross-claim filed on 8 May 2020 (the withdrawal application). Mr Collins informed the Court that Mr Edstein’s previous solicitor, the former principal of LMI Legal, had died suddenly on 6 September 2020 and that no file notes of relevant discussions regarding the pleadings had been located.

9. [173]

   Mr Collins sought to rely on the affidavit of Mr Edstein sworn on 6 October 2022, in which Mr Edstein relevantly deposed:

10. [174]

    Mr Morris opposed the application and indicated that he wished to cross-examine Mr Edstein. The primary judge confirmed that this evidence would only be evidence on the withdrawal application and that if any party wanted it to be evidence in the trial, that party could apply for an order to that effect.

11. [175]

    In the course of being cross-examined by Mr Morris, Mr Edstein accepted that prior to the coronial inquiry into the death of the deceased (the inquest) which was held in Newcastle, he had retained solicitors to represent him; that it was likely that those solicitors held records regarding his instructions to them; and that he obtained a certificate (under s 128 of the Evidence Act) in respect of his evidence at the inquest, at which he was represented by Mr Priest of counsel. Mr Edstein also accepted that he had been questioned by police, who had typed up a statement which he had read and signed as being true and correct.

12. [176]

    Mr Edstein gave evidence that, on the day the monument was installed, he was with his son, Greg, and Ralph Whytebutler, who was another employee of the Edstein company. Mr Edstein was the only qualified stonemason at the Edstein company at the time. At about this time, the Edstein company was purchased by kitchen manufacturers but Mr Edstein was trying to keep the stonemasonry business alive as a sideline.

13. [177]

    Mr Edstein gave evidence that, for this job, it was no longer his responsibility to involve himself in the “fixing mechanisms of memorial stonework that the company erected”. Mr Edstein said that he had taken no step to determine the diameter of the hole, the size of the dowel, or the depth of the hole in the base, or the fixing compound which was used. He did, however, admit that he was there when the headstone was delivered to the Club’s property and that he knew that he was the only qualified stonemason present. Mr Edstein said that his job at the time was only “lettering and sales” and that other workers, including his son, were doing the installations. He said that his only role with the monument was to go with his son and the other worker to help them locate the site because he lived near there and that he also helped them unload the monument. He said that he was not present when the monument was installed.

14. [178]

    Mr Edstein agreed that silicon sealant was an inappropriate bonding compound to use and that if the dowels were fixed with silicon sealant, the monument would not be securely fixed to the base.

15. [179]

    Ms Tang (junior counsel for CGU) objected to certain questions asked on behalf of the plaintiffs by Mr Morris and his junior, Ms Coventry. The primary judge purported to rule that he would grant the withdrawal application. At this point, Mr Collins sought leave to re-examine Mr Edstein on the application. However, Ms Coventry sought to conclude her cross-examination before that occurred and Mr Lloyd indicated that he, too, wished to cross-examine Mr Edstein on the application.

16. [180]

    Mr Lloyd asked that the primary judge confirm whether, the withdrawal application having been provisionally granted, Mr Morris would be permitted to amend to allege a failure on the part of Mr Edstein to supervise his co-workers. Mr Watson urged the primary judge to defer ruling on any consequential amendment until an application for any such amendment had been made. The primary judge then said:

17. [181]

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

18. [182]

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

19. [183]

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

20. [184]

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

21. [185]

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

22. [186]

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

23. [187]

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

24. [188]

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

25. [189]

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

26. [190]

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

27. [191]

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

28. [192]

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

29. [193]

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

30. [194]

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

31. [195]

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

32. [196]

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

33. [197]

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

34. [198]

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

    1. (1)

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

    2. (2)

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

    3. (3)

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

    4. (4)

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

    5. (5)

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

    6. (6)

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

    7. (7)

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

    8. (8)

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

35. [199]

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

36. [200]

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

37. [201]

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

38. [202]

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

39. [203]

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

40. [204]

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

41. [205]

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

42. [206]

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

43. [207]

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

44. [208]

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

45. [209]

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

46. [210]

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

47. [211]

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

Other matters

1. [212]

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

Proposed orders

1. [213]

   I propose the following orders:

   1. (1)

      Allow the appeal.

   2. (2)

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

   3. (3)

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

   4. (4)

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