Black Head Bowling Club Ltd v Harrower [2023] NSWCA 267

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Black Head Bowling Club Ltd v Harrower [2023] NSWCA 267 Hearing dates: 10–11 October 2023 Decision date: 09 November 2023 Before: Payne JA and Simpson AJA at [1]; Adamson JA at [60] Decision: In respect of the appeal by the Club: (1) Allow the appeal by the Club on ground 6 only. (2) Otherwise dismiss the appeal. (3) Order that Mr Edstein pay the Club's costs of ground 6 of the appeal. (4) Order that the Club pay the costs of the first to seventh respondents to the appeal (the plaintiffs below), other than the costs of grounds 4 and 6. (5) Each party bear their own costs of ground 4 of the appeal. In respect of the cross-appeal by the first to seventh respondents (the plaintiffs below): (6) Allow the cross-appeal by the first to seventh respondents (the plaintiffs below). (7) Dismiss the "Notice of Contention – Cross Appeal" filed by Mr Edstein on 21 March 2023. (8) Order that Mr Edstein pay the first to seventh respondents' (the plaintiffs below) costs of the cross-appeal. In both cases: (9) Set aside orders 2 and 3 made by the primary judge on 27 October 2022 and order 2 made by the primary judge on 3 February 2023 of and in lieu thereof make the following orders: (a) Judgment be entered in favour of the plaintiffs against the second defendant, Mr Edstein. (b) Mr Edstein to pay the plaintiffs damages in the agreed amount. (c) Pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) order that Black Head Bowling Club Ltd contribute 50% and Mr John Thomas Edstein contribute 50% to the agreed sum of damages payable to the plaintiffs. Catchwords: APPEALS — TORTS — Negligence — child killed by memorial headstone falling on her at bowling club — monument poorly constructed — whether club liable in negligence — whether club owed duty to undertake reasonable enquiries to ensure fixation of monument was sound — whether club failed to test stability of structure by pushing against it — whether scope of liability should extend to stonemason who constructed monument APPEAL — PRACTICE AND PROCEDURE — allegations admitted in defences by eighth respondent/cross-defendant — allegations purportedly withdrawn in further defences — application for leave to withdraw the admissions —whether primary judge erred in refusing to allow admissions to be withdrawn or to admit transcript of the motion Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5D Environmental Planning and Assessment Act 1979 (NSW), s 102 Evidence Act 1995 (NSW), ss 42, 69, 79, 128, 183 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9 Local Government (Approvals) Regulation 1993 (NSW), cll 12, 31 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7 Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200; [1955] HCA Coffs Harbour City Council v Polglase [2020] NSWCA 265 Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 Elphick v Westfield Shopping Centre Management Company Pty Limited [2011] NSWCA 356; (2011) 216 IR 41 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 Macquarie Pathology Services Pty Limited v Sullivan (Court of Appeal (NSW), 28 March 1995, unrep) Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529 Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 Voli v Inglewood Shire Council (1963) 110 CLR 74; [1963] HCA 15 Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 Texts Cited: Australia, Department of the Treasury, Review of the Law of Negligence – Final Report, (September 2002) Breach of Duty: A Disappearing Element of the Action in Negligence?" (2017) 76(3) Cambridge Law Journal 480 Category: Principal judgment Parties: Black Head Bowling Club Ltd (Appellant) Tamica Harrower (First Respondent/First Cross-Appellant) Robert Bishop (Second Respondent/Second Cross-Appellant) Bradley Bishop (Third Respondent/Third Cross-Appellant) Junior Henderson by his tutor Tamica Harrower (Fourth Respondent/Fourth Cross-Appellant) Keira Henderson by her tutor Tamica Harrower (Fifth Respondent/Fifth Cross-Appellant) Shiralee Walker (Sixth Respondent/Sixth Cross-Appellant) Nathan Walker (Seventh Respondent/Seventh Cross-Appellant) John Thomas Edstein (Eighth Respondent/Cross Respondent) Insurance Australia Limited t/as CGU Insurance Limited (ACN 000 016 722) (Ninth Respondent) Representation: Counsel: D Lloyd SC / C Coventry (Appellant) J M Morris SC / M A Gerace SC / A T Green (First to Seventh Respondents/First to Seventh Cross-Appellants) P A Collins / J Chen (Eighth Respondent/Cross Respondent)