A false saving

Black Head Bowling Club Ltd v Harrower[1]

On the grounds of the Black Head Bowling Club Ltd (Club) in New South Wales was an ANZAC monument weighing about 400 kg erected in 1997.

A Club committee lodged a development application with the Greater Taree City Council (Council) to erect the monument, which was approved with conditions. However, by reducing the height of the memorial and some negotiations with the Council, the committee, through its agents, was able to dispense with engaging a structural engineer and addressing issues of the stability of the monument.

In the end, no building approval was required as the monument was not over 1 metre high, but if it had been, a structural engineer’s drawings would have been required by the Council. This was a saving of about $300.

In November 2016, a 3-year-old girl was killed when the monument became dislodged from its base and fell on her. At the time, a 10-year-old boy was riding the memorial as if it were a horse.  The underlying cause of the collapse was that the monument had been poorly constructed in 1997.

In an action by the family of the deceased against the Club and the Club’s countersuit against the stonemason who erected the monument, the Club argued that a reasonable person would not have taken precautions in response to the risk of harm such as retaining an engineer to certify stability and integrity of the monument.

The Appeal Court found that the Club owed a duty to take reasonable care to prevent foreseeable harm to those whom it invited onto its premises, including the children of families who might be harmed while playing there.

The Club was found to have breached its duty of care in 1997 by not engaging an engineer to assess and certify the stability and integrity of the proposed installation method.

It was no answer that the Council had dropped the condition that an engineer was required to be engaged nor that the Club’s retention of a qualified stonemason to erect the monument.

The Appeal Court found that liability should be apportioned 50% to the stonemason and 50% to the Club.

An occupier of commercial premises has a duty to take reasonable care for the safety of persons invited onto the premises. Organisations need to take adequate precautions to ensure the safety of their premises, even as to latent defects.

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