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[2010] NSWSC 122
defendant. Judgment for Byatt, Stonewall, Presdate and ATPC on the plaintiff’s claims. The cross-claims were dismissed by judgment for the relevant cross-defendants. Costs were reserved for further argument....
A hotel patron was injured when a ceiling collapsed. The Court found that the engineer’s job was limited to checking the suspended floors, not auditing the ceilings. It also found that the hotel should have passed on a patron’s warning about floor movement and provided fuller information about the hotel’s use. But the evidence did not show that better information would probably have led to discovery of the concealed ceiling-fixing defect. As a result, the Court entered judgment for all defendants and dismissed the cross-claims.
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At about 5:20 am on 24 November 2002, the ceiling on the first level of the Stonewall Hotel collapsed and injured several people, including the plaintiff, Thakee Khdeyer Al Mousawy. This was the lead case for seven related claims, and the parties agreed that the liability findings would determine liability in those matters as well. The hearing proceeded on liability separately from damages after the plaintiff’s counsel ceased acting on the damages issue. [1], [5]-[7]
No linked legislation citations have been extracted yet.
The building was an older, three-level premises. The ceiling that collapsed had a directly fixed section and a suspended section. The Court found that the direct cause of failure was the defective way the ceilings had been attached in 1993: the screws were inadequately sized and poorly fixed, with inadequate embedment into the timber joists. The engineers could not determine the precise sequence in which the suspended section failed, but agreed on the possible mechanisms and that properly sized screws would have prevented the collapse. [57]-[62]
In 2002, hotel occupier Stonewall sought to renew its place of public entertainment authorisation. A patron, Mark Harper, emailed the council and Stonewall on 11 June, raising concerns about the “flex” or “bounce” of the second-level floor when people danced and jumped. The Court found that Stonewall received that email and that Ross Creighton, the person dealing with the council and the engineer, knew its contents before retaining Byatt. [20]-[22], [34]
Byatt’s assignment was to investigate the construction and loading capacity of the suspended floors. The Court found that Byatt was not told about the Harper email or the dancing activity on the second level. Byatt inspected the premises, made openings to examine selected structural elements, and reported that the floors had adequate capacity for the anticipated loading. Stonewall sent that report to the council, which renewed the authorisation. [36]-[55]
The plaintiff sued Byatt, Stonewall, the property owner Presdate, and the town-planning consultancy ATPC. The Court found a breach of duty by Stonewall because it failed to provide Byatt with relevant information. But it found that the evidence did not prove that the breach caused the ceiling collapse. Judgment was entered for all defendants on the plaintiff’s claims, and for the cross-defendants on the cross-claims. Costs were reserved. [123]-[149]
For Byatt, the key question was not simply whether an engineer might foresee some risk in an old hotel, or whether it could have done more. The Court examined the relationship and the precise task Byatt undertook. It treated the retainer as the most important salient feature in deciding what duty should be imputed to the engineer. [66]-[75]
The retainer was limited to “an investigation into the nature of the construction of the suspended floors” to evaluate their loading capacities. The Court found that Byatt was not retained to prepare the authorisation application or conduct a safety audit of every element of the building. The ceilings were not structural features within the scope of the investigation. The duty to the plaintiff therefore concerned reasonable care in assessing the floors, not the ceilings. [74]-[88]
The Court also rejected the plaintiff’s breach arguments against Byatt. It found that Byatt had not been told of the Harper email or the dancing activity, and that its assumptions were reasonable in light of the approved plans and its own observations. It did not consider that the presence of some old lath and plaster, as observed through limited openings, required Byatt to investigate or recommend its removal. The evidence was that the old ceiling would not have posed a significant risk if the later ceiling had been properly fixed, and investigating or removing it would have involved substantial work. [93]-[102]
The Court then treated factual causation as a separate obstacle. Section 5D of the Civil Liability Act 2002 (NSW) required the negligence to be a necessary condition of the harm. The Court applied the but-for approach discussed in Adeels Palace. It found that the ceiling defect was concealed and that discovering it would have required substantial invasive examination or demolition. The evidence did not establish that a vibration expert would have undertaken that examination, or that a recommendation to remove the old ceiling would have been acted on. [110]-[115]
Stonewall’s position differed on breach. As hotel occupier, it owed its patron a duty to take reasonable care to provide safe premises. The Court found the Harper email raised a foreseeable, not insignificant risk concerning the second-level floor. Stonewall had retained an engineer but failed to provide the email and adequate information about the activities taking place at the hotel. The Court concluded that proper briefing was a reasonable precaution and that Stonewall breached its duty by failing to provide it. [118], [121]-[124]
But the breach finding did not resolve causation. The evidence indicated that a properly briefed engineer would have recommended a vibration expert. It did not establish that the vibration investigation would have led to inspection of the first-level ceiling, or that Stonewall would have authorised the extensive invasive work required to uncover the defective screws. On that evidentiary record, the necessary causal chain remained unproved. The negligence claim against Stonewall therefore failed. [126]-[137]
The claims against Presdate and ATPC failed for different reasons. The Court found no evidence that Presdate knew of the relevant events and no submissions establishing negligence on its part. It found that ATPC acted as Stonewall’s agent, not as a principal. The TPA claims failed because the necessary misleading or deceptive conduct and causal connection were not established. [138]-[145]
The judgment does not purport to change the law of negligence. It applies existing principles to a particular professional retainer, building defect and causal chain. Its account of the duty inquiry draws on the “salient features” approach described in Caltex Refineries v Stavar: where the circumstances do not fall within an accepted duty category, the court closely analyses the relationship and relevant features rather than relying on foreseeability alone. [66]-[71]
The judgment emphasises that a professional’s contract with a client does not itself define or extinguish a duty owed to a third party. However, the retainer remains relevant because it identifies the work the professional undertook. The Court relied on the principle quoted from Drummond and Rosen v Easey and Voli v Inglewood Shire Council when explaining why the retainer mattered to the character of Byatt’s task. [75]
For breach, the judgment applies ss 5B and 5C of the Civil Liability Act 2002 (NSW), including consideration of foreseeability, whether a risk is insignificant, and the precautions a reasonable person would take. It also notes the need to assess the alleged breach prospectively, according to the information available at the time, rather than with hindsight. [91]-[92]
For causation, the judgment treats factual causation and scope of liability as distinct statutory elements under s 5D. In applying factual causation, it asks whether the harm would have occurred but for the alleged negligent act or omission. The practical significance in this case was that a breach or missed investigative opportunity was not enough: the evidence needed to establish the counterfactual steps that would probably have led to discovery of the concealed defect and prevention of the collapse. [110]-[115], [125]-[137]
The judgment also applies the established occupier-and-entrant duty described in Australian Safeway Stores v Zaluzna. Its contribution lies in applying that duty alongside statutory breach and causation analysis, rather than announcing a new occupiers’ liability rule. [118]
At [73], the Court identified “the nature of the activity undertaken by the defendant” as the major salient feature for defining Byatt’s duty. In plain English, the engineer’s actual assignment mattered greatly: an engineer retained to assess floor loading was not automatically treated as having accepted responsibility for every safety issue in the hotel.
At [88], the Court concluded that Byatt’s duty related to the floors’ structural integrity and did not extend to the ceilings. This did not mean the retainer alone controlled the result. It was the Court’s assessment of the relationship, task and other relevant features that led to the scope it identified. [72]-[88]
At [123]-[124], the Court found Stonewall’s failure to brief Byatt adequately was a breach. In plain English, the hotel had relevant information about concerns over the floor and how the venue was used, and the Court considered that information should have been provided to the engineer it retained.
At [137], the Court held that causation against Stonewall had not been established. In plain English, even though the hotel’s briefing fell short, the plaintiff still had to prove that proper briefing would have made a difference to the collapse. The Court found that the evidence did not establish the steps between disclosure of the email and discovery of the ceiling defect.
At [62], the Court identified defective fixing as the direct cause of the collapse. This distinguishes the physical mechanism of failure from the legal question of whether any defendant’s breach caused the harm in the statutory sense. The Court could identify what physically failed while still finding that the plaintiff had not proved the necessary causal link to the defendants’ conduct.
The judgment is most relevant where a plaintiff alleges that a professional owed a duty beyond the specific task described in a retainer. It directs attention to the task actually undertaken, the professional’s relationship with the client and the third party, the type of harm alleged, and the other salient features relevant to the particular relationship. It does not establish that a retainer always limits a duty to third parties; it treats the retainer as an important, but not exclusive, consideration. [66]-[88]
It is also relevant where an occupier receives a warning about a potential safety issue, retains a specialist, and fails to give that specialist the warning or important operational information. In this case, the Court found breach because Stonewall did not pass on the Harper email and information about the hotel’s activities. The same factual pattern would still require close attention to the risk raised, the steps taken, and what information was available. [118]-[124]
The decision is particularly instructive where the proposed causal explanation depends on a chain of hypothetical professional actions: a warning is passed on, an expert is retained, testing identifies a concern, further investigation follows, a concealed defect is discovered, and remedial work is authorised. The Court required evidence supporting the important links in that sequence, including whether the investigation would have reached the defect and whether the occupier would have approved the work. [126]-[137]
The judgment also highlights the difference between a visible concern and a latent defect. The fixing defect was not apparent on ordinary visual inspection and required substantial invasive investigation. Where liability depends on discovering such a defect, the likely investigation method, its scope, its cost and the client’s response may all matter to causation. [107]-[115], [133]-[136]
The supplied judgment text contains no decisions after 8 March 2010 and no account of how later courts treated Al Mousawy. It is therefore not possible to state from this source whether later courts followed, distinguished, limited or criticised it.
The judgment itself applies or discusses earlier authorities. It applies the salient-features approach from Caltex Refineries v Stavar and Makawe v Randwick City Council in assessing Byatt’s duty. It considers Drummond and Rosen v Easey and the quoted discussion of Voli v Inglewood Shire Council in explaining the relevance of a professional retainer. It applies Adeels Palace on the statutory treatment of causation and Zaluzna on the occupier’s duty to an entrant. [66]-[75], [111]-[118]
For research purposes, the judgment’s reasoning should be separated from any later account of its precedential status. The source supports what Hoeben J decided and the authorities he used; it does not establish the judgment’s subsequent treatment or present-day status.
The judgment leaves open the precise approach that might apply to a structural engineer retained on a broader assignment, or where the engineer has actual knowledge of a serious danger outside the immediate subject of the retainer. Hoeben J’s decision turned on the limited task found on the evidence and the nature of the relationship in this case. [72]-[88]
The Court did not decide how the TPA limitation question concerning Byatt should be resolved, because the claim failed on its merits. It also did not give a full determination of any alternative TPA arguments against Stonewall or Presdate, since the plaintiff made no submissions on those claims. [117], [139]-[140]
The Court did not determine the precise mechanism by which the suspended section of the ceiling began to fail. The engineers identified two feasible explanations and agreed that the available evidence did not permit a firm conclusion. The Court considered the precise mechanism irrelevant to liability in this case. [59]-[62]
Finally, the judgment does not establish a general evidentiary rule for hypothetical expert investigations. Its conclusion followed from the engineering evidence and the absence of proof that vibration testing would lead to intrusive ceiling inspection or that Stonewall would authorise the work. Different evidence on those factual questions could affect the causation analysis in another case. [129]-[137]
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CITATION : Al Mousawy v Howitt-Stevens Constructions Pty Limited & Ors [2010] NSWSC 122
HEARING DATE(S) : 01/02/2010, 02/02/2010, 03/02/2010, 04/02/2010, 05/02/2010, 08/02/2010, 09/02/2010, 10/02/2010, 11/02/2010, 12/02/2010, 15/02/2010, 17/02/2010, 18/02/2010
CATCHWORDS : TORTS - negligence - patron injured when ceiling of hotel collapsed - content of duty owed by structural engineer - significance of his retainer - breach of duty - whether collapse of ceiling reasonably foreseeable - causation - whether factual causation established - liability of owner of hotel - breach of duty - failing to adequately respond to complaints and failing to properly brief structural engineer - causation - section 5D Civil Liability Act 2002 - whether factual causation established - whether breach materially contributed to harm which occurred.
Civil Liability Act 2002 LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1946 Trade Practices Act 1974 Uniform Civil Procedure Rules 2005
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 84 ALJR 19 Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479 Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258 CASES CITED : Drummond and Rosen Pty Limited v Easey [2009] NSWCA 74 Makawe Pty Limited v Randwick City Council [2009] NSWCA 412 Revilla Pty Ltd v Council of the City of Sydney [2003] NSWLEC 343 Sydney Water Corporation v Turano & Ors [2009] HCA 42; (2009) 239 CLR 51
Thakee Khdeyer Al Mousawy - Plaintiff J A Byatt - 3rd Defendant PARTIES : Stonewall Hotel Pty Limited - 4th Defendant Presdate Pty Ltd - 5th Defendant Australian Town Planning Consultants Pty Limited - 6th Defendant
Mr P Webb QC/Mr G Wilson - Plaintiff COUNSEL : Mr J Sexton SC/Mr R Cheney - 3rd Defendant Mr M Windsor SC/Ms Chapman - 4th and 5th Defendants Mr Bernie - 6th Defendant
Keddies - Plaintiff SOLICITORS : Kennedys - 3rd Defendant Yeldham Price O'Brien Lusk - 4th and 5th Defendants Robert Silberberg - 6th Defendant
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
20244/04 - Thakee Khdeyer AL MOUSAWY v J A BYATT PTY LIMITED, STONEWALL HOTEL PTY LIMITED, PRESDATE PTY LIMITED and AUSTRALIAN TOWN PLANNING CONSULTANTS PTY LIMITED
JUDGMENT 1 HIS HONOUR: Nature of proceedings On 24 November 2002 at approximately 5:20am, the ceiling on the first level of the Stonewall Hotel collapsed injuring a number of persons. The plaintiff was one of those persons. The plaintiff has brought proceedings against three sets of defendants relying upon negligence and breaches of the Trade Practices Act 1974 (TPA) . 2 The plaintiff sues a structural engineering company J A Byatt Pty Ltd (the third defendant) in respect of a report by it dated 12 August 2002 on the basis that the report failed to identify defects in the ceiling on the first level and that the report was misleading and deceptive. 3 He sues the lessee and owner of the hotel Stonewall Hotel Pty Ltd and Presdate Pty Ltd (fourth and fifth defendants) on the basis that they did not properly investigate complaints received from patrons concerning the dance floor on the second level, that they failed to properly instruct the third defendant and that in applying to the council of the City of South Sydney (the council) for a renewal of its authorisation to use the premises as a place of public entertainment, they provided information which was false and misleading. 4 He sues a town planning consultancy company Australian Town Planning Consultants Pty Ltd (the sixth defendant) on the same basis as the fourth and fifth defendants. 5 There are currently seven other claims in this Court arising out of the same incident. This matter and those other claims have proceeded together. It was agreed by the parties and the Court so ordered, that this case was to be the lead case and would proceed to judgment both as to liability and damages. The findings and decision as to liability in this matter would determine liability in the other seven matters. 6 During the third week of the hearing, senior counsel for the plaintiff advised the Court that for reasons which he was unable to announce in open court, he could no longer act for the plaintiff in relation to his case on damages. There was no impediment to him continuing to act for the plaintiff on the question of liability. In the circumstances I made an order pursuant to Part 28 rule 28.4 of the Uniform Civil Procedure Rules 2005 that the hearing of the liability issue should proceed as a separate matter. The balance of the hearing as to damages was adjourned with the costs of that part of the hearing reserved. 7 For ease of reference, I will refer to the third defendant as "Byatt", the fourth defendant as "Stonewall", the fifth defendant as "Presdate" and the sixth defendant as "ATPC".
Factual Background 8 Except where otherwise indicated, I find the facts to be as follows. The Stonewall Hotel comprises premises at 173-175 Oxford Street, Darlinghurst. It faces Oxford Street in an approximately north-east direction. The rear of the hotel (to the south-west) backs onto Little Oxford Street. The hotel comprises three levels - the ground, the first and the second levels. It was the ceiling of the first level which collapsed. 9 On 1 July 1993 a lease was entered into between Presdate as lessor and Formsail Pty Limited as lessee whereby Formsail became the occupier of the premises. The premises comprised an old building which had previously been used as a bank. That lease was renewed on 1 July 1999 for a further six years to 30 June 2005. Formsail changed its name to Stonewall Hotel Pty Limited on 10 February 1998. 10 In 1993 Ross Sidney Creighton was the sole director and shareholder in ATPC. He has continued in that position up to the present time. ATPC provided town planning consultancy services. Mr Creighton studied Health and Building Inspection at the Sydney Technical College between 1966 and 1970, was employed as a Trainee Health and Building Inspector by Baulkham Hills Council during that period and then as a Health and Building Inspector until 1972. He worked as a Health and Building Inspector for the Strathfield Council between 1972 and 1975. From 1975 until 1988 he was employed by the Leichhardt Council as a town planner. In order to do that job he completed a certificate course in town planning. From 1988 until the present time he has worked as a consultant town planner and as a property developer. 11 Between 1993 and 1997 Mr Creighton either directly or using ATPC letterhead negotiated with the council to obtain approval for the development of the site at 173 - 175 Oxford Street as a restaurant/social club providing entertainment with 24 hour operation. On 9 December 1996 a further development and building application was lodged with the council by Formsail, seeking a change of use from restaurant/social club to a hotel and authorisation for the hotel to operate as a place of public entertainment. The relevant consents were obtained on 10 September 1997. On that date the council issued a place of public entertainment (POPE) authorisation. The authorised capacity for the second level was 150 persons. 12 As part of that process, Formsail substantially renovated the premises. Included in those renovations was the supply and installation of fire-rated suspended ceilings. The supply and installation was carried out by A B & S Wall Linings Pty Limited in 1993. 13 Mr Creighton became a director of Formsail in 1994 and continues to be a director. A company which he controls is the largest shareholder in Stonewall. During 2002 the shareholding of Stonewall was: "Fohson Investments - 150 Graham Magree - 75 060750816 Pty Limited (Mr Creighton's company) - 175 Planmate Pty Limited - 100."
During 2002 the directors of Stonewall were Mr Creighton, Craig Bell and until 3 July 2002 Khoon Phun Foo. During 2002 the manager of the hotel was Richard Foo. 14 It was the evidence of Mr Creighton that meetings of directors and/or shareholders of Stonewall took place on a weekly basis at 4:30pm on Thursdays. Those meetings would be held on the first level of the hotel. The usual attendees at those meetings during 2002 were Mr Creighton, Mr Richard Foo, Mr Craig Bell and very rarely Mr Magree. Employees of the hotel often attended. The subject matter of those meetings was said to be routine housekeeping matters affecting the hotel. 15 It was the evidence of Mr Creighton that in April 2002 he had a conversation with Richard Foo in which Mr Foo said: "Ross do you know anyone at South Sydney Council who can assist us with getting the POPE Licence renewed?"
Mr Creighton replied: "No I don't know anyone but I can make some inquiries and I can drop them a line on my letterhead …" 16 Mr Creighton gave evidence that he thought sending a letter on the letterhead of ATPC would have more impact with the council than a letter from the hotel itself and that communicating with the council in this way suited him as a matter of convenience. 17 Mr Creighton said that in his dealings with the council in respect of the renewal of the POPE authorisation he was acting solely in his capacity as a director of Stonewall, not as a director of ATPC. He said that ATPC did not provide a letter of retainer to Stonewall, was not given a brief on the matter and was not paid any fees. 18 On 1 May 2002 Mr Creighton had a telephone conversation with an officer of the council in relation to the POPE authorisation. On 2 May 2002 he sent to the council a letter on ATPC letterhead as follows: "Re Entertainment Certificate - 09700296 Premises 173 - 175 Oxford Street, Darlinghurst We refer to our previous communications in this matter, and confirm our discussion with council's officer Mr Hie Luu on 1 May 2002, that we would be grateful if the subject Entertainment Certificate may be renewed for the Ground, First and Second Floors of which the expiry date of the Certificate is 10 September 2002. Should Council require inspection of the premises kindly advise the writer and a mutually convenient inspection time will be arranged for your convenience. Yours sincerely Australian Town Planning Consultants Pty Ltd Per Ross S Creighton" 19 By facsimile dated 18 June 2002 addressed to Mr Creighton the council responded as follows: "Re: Renewal of Place of Public Entertainment Authorisation (POPEA) Further to your letter of May 2 nd of 2002 regarding the above, I wish to advise that in order for Council to assess any POPEA the following matters are to be addressed: Payment of the fee $315 An inspection of the premises has to take place with Council and a suitable representative of the applicant A certificate is to be submitted from a structural engineer which states that the premises is structurally sound and is capable of withstanding the loadings which arise from the use (particularly reference is directed to the floor loading/deterioration from dancing-jumping over the years). The chosen engineer has to be a Council Registered Engineer . The application has to have the owner's consent. Regards, Luke Farrell" 20 Between Mr Creighton's letter of 2 May 2002 and the council's response of 18 June 2002, the Mayor of South Sydney Council, John Fowler, received an email dated 11 June 2002 from a Mark Harper in the following terms: "Dear Stonewall/John, I would like to bring to your attention an ongoing concern which may or may not require further action. My partner and I (architect and landscape architect) having some feeling for structural/engineering related issues have on a number of occasions discussed our unease at the "flex" or bounce movement in the floor boards on the top floor dance level at Stonewall. We guessed 200 plus people were dancing/jumping up and down on Sunday 1-2am. I would say that the centre of the room was moving under weight at a measurable magnitude, and the question would be: 1. Has a structural engineer certified the licence loading for the purpose of a nightclub. 2. If so, should it be regularly reviewed. 3. Has sufficient attention been given to the fact that the building is old and the materials of construction would be deteriorating over time - possibly hastened by its current use. My obvious concern and worry is that the third level of Stonewall is going to collapse one day. Mark" 21 As the form of the email makes clear, not only was it sent to the council, it was also addressed to the Stonewall Hotel. Mr Creighton said that he was not shown a copy of the email from Mr Harper, nor did he become aware of its contents or the fact that it was sent until after the accident of 24 November 2002. No other oral evidence was called on behalf of Stonewall, in particular Mr Richard Foo was not called. Accordingly, it is not known who at the hotel received Mr Harper's email and what if anything was done upon its receipt. In the circumstances I accept that the email was received by Stonewall. This is particularly so since no evidence was called on its behalf nor was a submission made to suggest the contrary. 22 Mr Creighton gave evidence that not long after the receipt of the faxed letter of 18 June 2002 he spoke to Richard Foo about it. Mr Creighton said that Mr Foo asked "Do you know a structural engineer who can help with this?" to which Mr Creighton replied, "In 1988 I used a structural engineer for my own house, John Byatt …". Mr Creighton said that he and Mr Foo agreed that Mr Byatt should be used for the POPE renewal by Stonewall. 23 Mr Creighton's evidence as to his contact with Mr Byatt is set out in his statement as follows: "10. Shortly before 3 July 2002 I telephoned John Byatt. After introducing myself to him I said to him words to the following effect. "John are you still practising as a structural engineer … can you assist Stonewall Hotel with getting a renewal of its POPE licence?" I read to John Byatt the whole of the relevant paragraph of the letter from Council dated 18 June 2002, namely the following words "A certificate is to be submitted from a structural engineer which states that the premises is structurally sound and is capable of withstanding the loadings which arise from the use (particularly references directed to the floor loading/deterioration from dancing-jumping over the years). The chosen engineer has to be a Council registered engineer". Byatt said to me in response words to the effect "Sure I can assist with that … ". I then responded with words to the effect of "Good, would you please contact Richard Foo at the Stonewall Hotel …". I recall giving him Richard Foo's contact details but I have no other particular recollection of that conversation. … 12. I have been shown a letter dated 3 July 2009 to John Byatt, a copy of which is annexed hereto and marked "C". Prompted by that letter I do recall having a telephone conversation with an officer of South Sydney Council about this matter, but do not recall the details of that conversation. The suggestion made by the Council officer that the licence could be renewed in this manner, presumably with less difficulty than the process indicated in Council's fax letter dated 18 June 2002 would have seemed to me to be a desirable development as my concern was simply to assist Stonewall Hotel with obtaining the renewal of its POPE licence as indicated in paragraph (6) above. 13. On 3 July 2002 I sent to John Byatt the letter, a copy of which is annexed and marked "C". I have no recollection of who requested the copy of South Sydney Council's approved Construction Certificate Plan number 296-97 for Entertainment which was enclosed with that letter, but I believe it was probably John Byatt who had requested it. I am quite certain that I had not sent it independently without any prompting. I believe the copy of that Construction Certificate Plan was provided to me by Richard Foo, as I did not have any such document myself. I did not retain a copy of that document after it was forwarded enclosed with that letter. The quote "PS" to that letter is in my handwriting. I recall that John Byatt had previously asked me if there was some sort of floor plan for the Hotel. I also recall saying to Richard Foo words to the effect of "Do we have any floor plan to give John Byatt?" Richard replied with words to the effect of "I'll try to dig something up and send it to him directly"." 24 The document marked "C" referred to in the statement was a letter on ATPC letterhead dated 3 July 2002 addressed to Mr John Byatt, care of J & A Byatt Pty Limited, which read as follows: "Re: 173-175 Oxford Street, Darlinghurst Stonewall Hotel We refer to previous communication in this matter and enclose copy of South Sydney Council's approved Construction Certificate Plan No 296-974 Entertainment. On 2 nd July 2002 we were advised by South Sydney Council's Entertainment Licensing Officer that a Structural Engineer's Confirmation and/or Certificate should be adequate confirming that the floors are generally unchanged from the Council's Consent of 24 April 1997 with any other Structural Engineer's particulars possibly to be included in same. Yours sincerely, Australian Town Planning Consultants Pty Ltd per Ross S Creighton"
The following handwritten notation by Mr Creighton was included on the letter: "P.S. John, further plan of detail from Richard Foo to be furnished to you." 25 It was common ground that there had been no previous certification or report from a structural engineer concerning the premises when the original Development Approvals and POPE authorisation were obtained in 1997. 26 Mr Byatt, in his oral evidence and in his statement, agreed that towards the end of June 2002 he received a telephone call from Mr Creighton. Mr Byatt said that in that call Byatt had been asked to provide advice relating to the structural adequacy of the suspended floors at the Stonewall Hotel and had been provided with Richard Foo's contact details. He denied that he was provided with any further information and specifically denied that Mr Creighton had read out to him any part of the contents of the council's letter of 18 June 2002. 27 Mr Creighton was cross-examined (T.85-87) on that issue as follows: "Q. What I want to put to you is you certainly did not ring Mr Byatt and read out to him what was in the third dot point of that fax? A. That is true. Q. It is true that you didn't read it? A. Not to Mr Byatt. Q. What is - A. Because it went straight to Mr Foo. Q. What is in paragraph 10, your evidentiary statement, is a fabrication to the extent that it records that you read that paragraph out to Mr Byatt isn't it? Why can't you answer the question? HIS HONOUR: Please give him a chance, it is an important question. WITNESS: I'm just reading this out and I am confused: "Shortly before 3 July 2000 I telephoned John Byatt. After introducing myself to him I said to him words to the following effect: "John are you still practising as a structural engineer … Can you assist Stonewall Hotel with getting a renewal of its POPE licence? I read to John Byatt the whole of the relevant paragraph of the letter from Council dated 18 June 2000". Well I apologise to the court I didn't recall that and - COUNSEL: Q. I will put it another way. It is wrong isn't it? HIS HONOUR: He was still trying to answer. Go on please Mr Creighton. A. Having read my statement I must have read this to John Byatt. Having been so long ago, I've got confused and I apologise to the court. COUNSEL: Q. I'm sorry, I'm not clear. Are you saying you read that paragraph out or that you did not recall? A. Well, in accordance with my statement here, yes. Q. I know what your statement says. What I'm asking you is what your evidence on oath is? A. My evidence on oath is yes. HIS HONOUR: Q. This is important. Do you have a recollection today of having - and if you are in any doubt at all read paragraph 10 again. Do you have a recollection today of having done what you say you did in paragraph 10 of that statement? A. Not a clear recollection your Honour. COUNSEL: Q. You don't have any recollection at all do you Mr Creighton? A. I don't have a clear recollection. Maybe I did. Q. You don't have any recollection at all do you Mr Creighton? A. I've answered that question." 28 I do not accept that Mr Creighton provided any information to Mr Byatt when he telephoned him towards the end of June 2002, other than asking him to provide advice relating to the structural adequacy of the suspended floors at the Stonewall Hotel. I do not accept that there was any mention by Mr Creighton of the renewal of a POPE licence, nor do I accept that he read out to Mr Byatt any part of the council's faxed letter dated 18 June 2002. I have reached that conclusion for a number of reasons. 29 It was clear to me when Mr Creighton was cross-examined on this topic, that he had no recollection at that time of having provided such information to Mr Byatt. The pauses in his evidence when he tried to either recollect or explain himself, together with its contradictions, made that clear. That being so, I do not see how Mr Creighton could have had a better recollection four months before on 8 October 2009 when he signed his statement. 30 There were other aspects of Mr Creighton's evidence which I found unsatisfactory. His willingness to say that he had read out part of the council's letter of 18 June 2002 to Mr Byatt when he clearly had no recollection to that effect, is not only an indication of the unreliability of that evidence but of a willingness on the part of Mr Creighton to give evidence which he perceived might assist him regardless of whether that evidence was correct or not. 31 A consistent theme throughout Mr Creighton's evidence was the minimisation of his qualifications and the extent of his contact with the council in relation to the Stonewall Hotel. This was so, both in relation to the earlier development applications in respect of the hotel which took place between 1993 and 1997 and in relation to the 2002 POPE negotiations. It was clear from Mr Creighton's background that he was familiar with how local councils operated and was experienced in negotiating with them. Of the directors and shareholders of the hotel he was the only person with such knowledge and expertise. Moreover, as the biggest shareholder in the hotel he had a clear interest in the hotel obtaining a renewal of its POPE authorisation. 32 I do not accept Mr Creighton's evidence that between the receipt of the council's letter of 18 June 2002 and his letter to Mr Byatt of 3 July 2002, he did not make representations to the council to reduce its requirements as to what the certificate from the structural engineer should cover. There was no doubt that the requirement communicated by him to Mr Byatt on 3 July 2002 is significantly less onerous than the initial requirement advised to him by council in its letter of 18 June. I infer that such a change in requirement was only obtained after some negotiation between Mr Creighton and the council. 33 I do not accept that Mr Creighton was ignorant of substantial dancing activities taking place at the Stonewall Hotel and that he first learned of this upon receipt of the council's letter of 18 June. If Mr Creighton had been unaware that such activities were taking place he would, upon receipt of the letter of 18 June which referred specifically to "floor loading/deterioration from dancing-jumping over the years", have contacted Mr Farrell as author of that letter for an explanation or alternatively (or perhaps as well), he would have contacted Mr Richard Foo, the hotel manager. This is particularly so when he had received the letter in the course of an application to renew the hotel's POPE authorisation. Mr Creighton denied that he spoke to Mr Farrell on these matters. 34 I do not accept that the contents of the email from Mr Harper of 11 June 2002 were not brought to the attention of Mr Creighton. It would have been obvious to the initial recipient of the email on behalf of the hotel that a copy had been sent to the council. The only person in Stonewall's organisation that had any knowledge and experience in dealing with local councils was Mr Creighton. He was at that very time negotiating with the council concerning the renewal of the hotel's POPE authorisation. In those circumstances the likelihood of Mr Foo or anyone else from Stonewall not communicating the contents of the email to Mr Creighton is remote. I find that before he retained the services of Mr Byatt and his company, Mr Creighton was aware of the contents of Mr Harper's email of 11 June 2002. 35 My final reason for accepting Mr Byatt's evidence as to Byatt's retainer in preference to that of Mr Creighton is that I found Mr Byatt to be a more reliable witness. Mr Byatt appeared to me to be doing his best to accurately describe what he saw and what he did, whereas Mr Creighton had a clear agenda in giving his evidence. This was to separate himself, both personally and through ATPC, from any responsibility for the events of 24 November 2002. 36 For the above reasons I find that Byatt's retainer comprised the statement of tasks communicated to Mr Byatt in the telephone conversation with Mr Creighton at the end of June 2002, i.e. to provide advice relating to the structural adequacy of the suspended floors of the Stonewall Hotel and the more detailed instructions set out in the letter from ATPC to Byatt of 3 July 2002. The first paragraph of the report of Byatt of 12 August 2002 confirms that this was its retainer. 37 At the time of its retainer, Mr Byatt was a director of Byatt and was working as a structural engineer and consultant. He obtained his degree as a Bachelor of Engineering from the University of New South Wales in 1972. Thereafter he worked as a consultant in structural engineering in the building industry through his company, Byatt. 38 Mr Byatt attended the hotel for the first time on 28 June 2002. He met with Mr Richard Foo and was provided by him with plans of the hotel (exhibits 3D2 and 3D3): a location plan, a ground level plan, a first level structural framing plan and a second level plan, all dated 6 November 1996. 39 He also met Mr Insall, a carpenter. In the company of those persons Mr Byatt then inspected the two upper levels of the hotel. During the course of that inspection, he pointed out various locations to Mr Insall where he wished openings to be made. Those locations were in the ceilings of the ground level and the first level and in the floors of the first and second levels. 40 Enclosed with the letter of 3 July on ATPC letterhead were the following drawings of the hotel:
(i) Vocation plan dated 6 November 1996 marked "296-97 COUNCIL COPY" and date stamped 7 April 1997.
(ii) Ground level plan dated 31 January 1997 marked "296-97 COUNCIL COPY" and date stamped 7 April 1997.
(iii) First level plan dated 6 November 1996 marked "296-97 COUNCIL COPY" and date stamped 7 April 1997.
(iv) Second level plan dated 6 November 1996 marked "296-97 COUNCIL COPY" and date stamped 7 April 1997. 41 Mr Byatt marked on copies of the first level plan and the second level plan the locations where these openings were made (exhibit 3D4). Some of those openings were made on 28 June and others on later occasions. On each plan the position of the structural beams was marked. Openings in the ceilings were marked in orange and openings in the floors were marked in yellow. Mr Byatt marked these openings on the plans based on his recollection. He had not kept notes of where such openings were made. Mr Byatt visited the hotel on five occasions. It was not suggested to Mr Byatt that his recollection was incorrect. 42 Three openings were made in the ground level ceiling. Through those openings Mr Byatt was able to observe that the ceiling was approximately half a metre below the floor joists. He could also see the underside of the old lath and plaster ceiling (a lath is a piece of sawn timber used to support a plaster ceiling). He noted that much of the plaster had been removed. Mr Byatt was also able to see one of the hangers supporting the suspended ceiling, which appeared to be attached to the side of one of the joists. Mr Byatt was not able to see anything else through those openings, other than the underside of a wide beam. Mr Byatt said that his primary purpose in having those openings made in the ground level ceiling was to enable him to view the beam. 43 Only one opening was made in the ceiling of the first level. Mr Byatt had this opening made so that he could observe a steel beam which ran from one side of the building to the other and to identify how the beam was supported on a column. Because the underside of the beam was lower than the ceiling, he was unable to make any other observations concerning the ceiling of the first level through that opening. 44 Two openings were cut in the floor on the second level. One of those openings was approximately three metres long and showed a water pipe supported by joists which ran length-wise from Oxford Street in a north-south direction. Mr Byatt observed through that opening a couple of furring channels and the top surface of the gyprock ceiling of the first level. (Furring channels are metal bearers which support plasterboard.) The furring channels were located approximately 150 millimetres below the bottom of the joists. The furring channels were roughly parallel with the joists but were not evenly spaced with them. These furring channels were part of the support for the first level ceiling. There were no signs of laths or plaster observable through that opening. 45 The second opening in the floor on the second level was small and was made above the steel beam previously referred to. It revealed framing timbers to create boxing around the beam. No other part of the ceiling of the first level was visible through that opening. Mr Byatt was, however, able to see some laths and plaster from the old ceiling through that opening. 46 In his statement Mr Byatt summarised his findings as follows: "13. The ceiling of the ground floor was removed in two locations. The removal of a section of ground floor ceiling at beam 1B3 revealed a suspended ceiling comprising two layers of 16 mm gyprock suspended from a ceiling grid which had hangers extending up through the original lath and plaster ceiling of which the plaster had been mainly removed and the laths were intact. I assumed that the ceiling hangers were attached to the side of the joists. 14. I observed that the second floor framing comprised timber joists spanning between the front external wall and internal steel bearer which in turn was supported by the side walls of the hotel and a cast iron column located approximately 1.8 m from the western wall. I also observed that the section of flooring had been previously removed and replaced to allow the installation of a water pipe, which was recessed into the top of the joists by notching out a section of the joist. 15. At my direction, inspection openings were cut in the flooring: (a) on the first floor, thereby exposing the boxing around the steel beam bottom flange, so that I could see that none of the original lath and plaster ceiling remained, and (b) on the second floor no lath and plaster ceiling was evident from the test holes." 47 All of Mr Byatt's visits to the hotel occurred during the day. In the course of those visits he was able to observe the general layout of the first and second levels. I accept his evidence that there were tables and chairs covering most of the second level with two sheets of pine board on the floor in front of the bar which constituted either a small dance area or a stage. These observations by Mr Byatt are confirmed by the photographs and video taken by the police following the collapse of the first level ceiling. 48 Based on these observations, Mr Byatt concluded that the floor loading on both the second and first levels was what one would expect of a normal hotel and was essentially static in nature without any significant dynamic component. He explained those terms in his evidence. By 'static' he was referring to a stationary load and by 'dynamic' he was referring to a load which was magnified by movement created in the mobility of the load. 49 In his statement Mr Byatt said: "7. I did not receive any advice or information, nor make any observation, that would suggest that the loading to either floor would be dynamic or that either floor had undergone noticeable deflexion whilst in use. Had I been informed that the loading was dynamic, I would have recommended that a vibration consultant be engaged to check the implications of any potential resonance arising from those dynamic loads."
I accept Mr Byatt's evidence on this issue. I find that Mr Byatt was not informed of the existence or content of Mr Harper's email nor was he told about the dancing activities occurring on the second level of the hotel. 50 Apart from enabling Mr Byatt to make observations concerning the floors, the openings in the ceilings and floors were also intended to expose the existing floor joists so that the species of timber could be identified and the stress grading of the various timber elements quantified. To this end a representative of Forests NSW inspected the timber joists on 11 July 2002 and prepared a report dated 15 July 2002. That report is exhibit "C45". 51 In his statement Mr Byatt set out the steps which he then took as follows: "16. Following my inspections, I made certain calculations to identify the relevant loading capacities of the two floor structures. 17. I used the information provided by State Forests regarding the joists to check their capacity to support a 5kPa loading, which was the AS1170 nominated loading applicable, assessed to be essentially static. I checked the individual floor joists capacities on each level in accordance with the requirements of AS1720. 18. I also used AS/NZS1170:2002. I considered that the need for a more detailed examination of the dynamic behaviour of the floors was unnecessary because the limiting criteria of a defection less than 2mm under a point loading of 1kN was satisfied. 19. I also carried out the following checks: (a) I checked the steel beams, and by reference to AS4100, determined the likely deflection of the various beams using a computer model and further, checked those beams for strength and stiffness and found them to satisfy the requirements contained in Table C1 of AS.NZS1170:O:2002; and (b) I checked the capacity of the cast iron column that supported the steel beam at the second floor - I found this too to be structurally satisfactory. 20. I generally found a consistency in the calculation that both floors had the capacity to support a live loading of 5kPa." 52 On 12 August 2002 Mr Byatt sent his report by fax to ATPC and also sent a copy by post. Although the report was addressed to the Proprietors of the Stonewall Hotel, the postal address to which it was sent was the postal address given on the letterhead of ATPC. 53 Mr Creighton gave evidence that he did not see a copy of Mr Byatt's report until after the accident. I do not accept that evidence. Apart from the fact that the report was sent by mail to the postal address of ATPC, Mr Creighton was the person who was dealing directly with the council in relation to the renewal of the POPE authorisation. In circumstances where Mr Creighton had retained the services of Byatt, I find it most unlikely that he did not read the report when he received it. I find that Mr Creighton did read the report of 12 August 2002, either on that date or shortly thereafter. He made no complaint to Mr Byatt concerning the report nor did he discuss its contents with him. I infer that Mr Creighton was satisfied with the report. 54 The report was in the following terms: "Floor Loading Capacity of the Stonewall Hotel 173-175 Oxford Street Darlinghurst At the request of Mr Ross Creighton acting for the proprietors of the Hotel, the writer has conducted an investigation into the nature of the construction of the suspended floors located at the 1 st & 2 nd levels in an attempt to evaluate their respective loading capacities. The building is a two storey masonry structure built in the 1920-30's period understood to have originally been used as banking premises by the Commonwealth Bank. Over the ensuing years it appears to have been subject to alterations & additions and has been used as a hotel over at least the last 5 years. During the latter period, it is understood that there have been minor alterations carried out to the bar area at ground floor level, however, it is further understood that there have been no structural alterations made to the building. The two suspended floors comprise timber joists supported by masonry walling and structural steel beams. Whereas it was considered neither practical nor essential to check every timber joist or every steel beam, a sample considered representative of the structure has been exposed by saw cutting sections of flooring or ceiling in order to assess the capacities of the various structural elements. Furthermore the timber elements exposed have been visually stress graded by an officer from State Forests and a copy of his report is appended hereto. Within the limitations of the foregoing investigation, of those elements checked, the capacities consistently met the 5kPa live loading criterion adopted for the floor structures. A degree of confidence has been developed that the floor structures of the 1 st & 2 nd suspended floors have an adequate reserve to support the anticipated loading considered to be a reasonable maximum of 5kPa. It is concluded that the results of the investigation confirm the original structural appraisal which certified the use of the building as a hotel and that the floor framing generally is structurally adequate to support the anticipated loading. Summary of Findings (1) Whereas the existing approval for the hotel allows for a maximum of 150 people at both suspended levels, the target design loading adopted for the floors has been taken from AS1170.1 SAA Loading Code Part 1 Dead & Live loads and load combinations for assembly areas without fixed seating such as dance areas, bars, vestibules and public lounges nominated to be 5kPa or 3.6KN. (2) Given the fact that the hotel has been in use for at least 5 years and that the suspended floors are regularly and simultaneously loaded to the maximum and possibly more from time to time and that no signs of distress or excessive deflection have ever been reported or were visible at the time of the inspections, it is suggestive that the floor structures may have an adequate reserve to support the maximum anticipated loading. (3) It is considered likely that the original building was designed for a floor loading of 5kPa given the type of the original use and the time of construction. (4) Test openings were made at 4 locations at 1 st floor level and the floor joists were identified to be 190 x 50 nominal hardwood sections spanning a maximum of 3.6 m and 190 x 63 spanning a maximum of 4.2 m all identified as F17 stress grade. At all locations inspected the timber joists have at least 5kPa live loading capacity. (5) Also at first floor level there are five sets of steel girders. Two of the girders act as bearers supporting floor loading only and span approximately 8.4 m and were identified as rivetted plate girders. Two of the other beams respectively support masonry walling including floor loading from both levels and span approximately 8 m and comprise a pair of fire rated 455 deep RSJ sections sandwiching an unidentifiable concrete beam or an encased steel beam. The remaining beam appears to be of more recent origin and has replaced a wall adjacent to the main stairwell where it appears to be supported by a concrete column. The latter beam is fire-rated by boxing in gyprock and supports the abovementioned bearer girders and a cast iron post which in turn supports a bearer at level 2. (6) One of the floor bearers and the more recently installed beam were exposed and the loading thereto assessed and the bending effects on each beam determined. In both cases the beams were found to be structurally adequate. It is noted that the method of support of the latter beams was not determined and could not be checked. (7) Test openings were made at several locations at the 2 nd floor level and the floor joists were identified to be 240 x 70 nominal hardwood sections at an average spacing of 380 and spanning a maximum of 5.5 m identified as F27 stress grade. The joists were notched at the top surface to allow installation of a sprinkler pipe. Calculations indicate that the joists even with the notch being taken into account are structurally adequate to support the 5kPa live loading. (8) The 2 nd floor joists are supported by a steel plate rivetted girder which spans from an external wall over approximately 8.4 m to a circular cast iron column which extends over approximately 4.2 m to the 1 st floor framing. (9) The floor loading was assessed and the bending effects on the latter girder determined and the results indicate that the girder is structurally adequate. It is noted that the method of support at the masonry wall was not determined and could not be checked. (10) The loading to the cast iron column was also assessed and the column is considered to be structurally adequate. We trust the foregoing satisfies Council requirements, please contact the undersigned should further clarification be required. Yours faithfully, J A BYATT PTY LIMITED per:" 55 Following the delivery of the report there was no further contact between anyone on behalf of Stonewall and Mr Byatt until after the accident. On 21 August 2002 Stonewall sent the Byatt report to the council. On 3 September 2002 an officer of the council carried out an inspection of the hotel including the second level. At that time the only issues between Stonewall and council related to fire safety matters. The council issued the POPE authorisation renewal on 10 September 2002. 56 The first level ceiling collapsed at around 5:20am on 24 November 2002. According to the police report, at 4:50am there were approximately 50 patrons on the second level, 40 on the first level and 150 on the ground level. 57 The ceiling of the first level comprised two parts, one which was directly fixed to the floor above and one which was suspended approximately half a metre below that floor. 58 In the direct fixed section of the ceiling failure occurred because the screws which secured the ceiling to the timber joists above it had not been properly fixed into the timber. The embedment depth of these screws was inadequate, which in turn led to a transfer of load that should have been taken by those screws to adjacent screws which themselves were not properly fixed into the joist. This caused pull-out failure at those locations with the subsequent overloading of properly fixed clips, either by the screws securing them pulling out of the timber joists, or simply through. 59 In the suspended section of ceiling, the collapse occurred either by:
(i) A transfer of additional load to the suspended ceiling, following the failure of the direct fixed section leading to progressive collapse of the suspended ceiling; or
(ii) the pullout failure at one of the suspension brackets, causing transfer of load to adjacent brackets and progressive collapse of the suspended ceiling and the direct fixed section of ceiling. 60 The three structural engineers who gave expert evidence agreed that these two alternatives represent the two available explanations for the initiation of failure in the suspended section of the ceiling. Both alternatives provided a feasible explanation for the mechanism by which failure of this section of the ceiling was initiated. Because of the limited evidence available, the engineers were unable to arrive at a firm conclusion as to which of the above modes of failure actually occurred. The precise mode of failure is irrelevant to the liability issue. 61 The engineers agreed that the first level ceiling would not have collapsed if the connection brackets had been fixed to the floor joists with substantially larger screws in the direct fixed section of the ceiling and in the suspended section of the ceiling. 62 Accordingly, the direct cause of the failure of the first level ceiling was the defective mode of attachment used when it was originally installed in 1993, i.e. inadequately sized and poorly fixed screws. 63 Following the accident Byatt was retained to provide advice to the hotel concerning various aspects of the ceiling collapse. When the ceiling was replaced some bracing was added to the floor of the second level. Vibration engineers were retained and they reported no adverse results from deflection or vibration in terms of the structural adequacy of the suspended floors (exhibit 3D25). The unchallenged evidence of Mr Byatt was that any post-accident bracing was irrelevant to the dynamic performance of the second level floor (T.169.33).
Plaintiff's case against Byatt 64 The duty of care and its content said by the plaintiff to be owed by Byatt to him was never clearly defined. To the extent that a definition was attempted, it sought to define Byatt's duty in terms of breach, i.e. that having observed the remnants of the old lath and plaster ceiling attached to the underside of parts of the floor on the second level, it failed to take appropriate steps to deal with that observation. Put another way, the duty relied upon seems to be a duty owed by Byatt to the plaintiff to carry out its inspection of the hotel premises in a proper way. 65 To state the duty and its content in such a way is unhelpful and closer analysis is required to determine firstly whether a duty did exist and if so, its content. 66 Some guidance in relation to the question of whether there exists in any given circumstance a duty of care and if so its scope is provided by Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258 at [102] where Allsop P said: "[102] This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the "salient features" or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury." 67 I do not regard the circumstances of the plaintiff's claim against Byatt as falling within an accepted category of duty. Accordingly it is necessary "to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor" by references to the factors affecting the appropriateness of imputing a legal duty to take reasonable care. In Stavar Allsop P identified the following salient features and commented on them as follows: "[103] These salient features include:
(c) the degree and nature of control able to be exercised by the defendant to avoid harm;
(d) the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;
(e) the degree of reliance by the plaintiff upon the defendant;
(f) any assumption of responsibility by the defendant;
(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;
(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;
(i) the nature of the activity undertaken by the defendant;
(j) the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct or the activity or substance controlled by the defendant;
(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;
(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;
(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one's own interests;
(o) the existence of conflicting duties arising from other principles of law or statute;
(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and
(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law. [104] There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content. [105] The task of imputation has been expressed as one not involving policy, but a search for principle: see especially Sullivan v Moody at 579 [49]. The assessment of the facts in order to decide whether the law will impute a duty, and if so its extent, involves an evaluative judgment which includes normative considerations as to the appropriateness of the imputation of legal responsibility and the extent of thereof. Some of the salient features require an attendance to legal considerations within the evaluative judgment. [106] I have described "foreseeability" as a salient feature; it is perhaps better expressed that the use of salient features operates as a control measure on foreseeability employed at the level of abstraction earlier discussed, for example by Glass JA in Shirt as the foundation for the imputation of duty of care. In a novel area, reasonable foreseeability of harm is inadequate alone to found a conclusion of duty. Close analysis of the facts and a consideration of these kinds of factors will assist in a reasoned evaluative decision whether to impute a duty. Whilst simple formulae such as "proximity" or "fairness" do not encapsulate the task, they fall within it as part of the evaluative judgment of the appropriateness of legal imputation of responsibility." 68 This analysis was recently applied by Hodgson JA in Makawe Pty Limited v Randwick City Council [2009] NSWCA 412. That was a case involving a claim for economic loss against a council by a purchaser of land from developers. The basis for the claim was council approval of the building development when it had in its possession a geotechnical report stating the water table to be at about the same level as the proposed basement floor slab. 69 In the circumstances of this case the relevant duty of care must be a duty relating to, or at least including, the risk of physical injury from the collapse of the ceiling of the first level. As Stavar and the authorities referred to therein make clear, it is not sufficient in order to impose a duty of care to merely establish foreseeability of harm and the capacity to do something about it. That being so, it does not necessarily follow that, even if Mr Byatt saw something dangerous or potentially dangerous in respect of any part of the premises other than the structural flooring, Byatt owed a legal obligation to third parties to say or do anything in respect of that danger. 70 Insofar as "salient features" or factors are concerned, the following are important in this case. The defective ceiling was constructed by others and Byatt had no involvement in its design or construction. Accordingly, the case against Byatt is properly characterised as a case about a failure to warn in respect of the default of others. The case cannot involve any allegation of a positive breach by Byatt of something that it was engaged to do in the sense that something which it did created the danger. Byatt is not in a position in any way analogous to that of a manufacturer or designer of a harmful product. 71 As Stavar makes clear, in novel situations one has to focus upon the nature of the relationship between the plaintiff and the putative tortfeasor. It is clear that the "salient features" in a mesothelioma case (Caltex) may be different to the "salient features" in a local council case (Makawe) and may be different again to the "salient features" in a case involving a structural engineer. As Stavar made clear the "salient features" listed were not exhaustive and the particular features listed there may not be relevant in every case. 72 Unlike the council in Makawe, Byatt was in a contractual relationship which limited the extent of its obligations to Stonewall. Although Caltex was in a contractual relationship of employment with the husband of the plaintiff in Stavar, that was a completely different type of contractual relationship to the very specific retainer between Stonewall and Byatt. 73 The major factor or "salient feature" in this case for the determination of the content of any legal duty to be imputed to Byatt must be "the nature of the activity undertaken by the defendant". This involves an examination of the precise terms of its contract with Stonewall. In that regard the other "salient features" identified in Caltex are of substantially lesser importance. 74 I have already found that the retainer of Byatt by Stonewall was expressly limited. Perhaps the most succinct statement of that retainer is in the opening sentence of the Byatt report of 12 August where it is stated to be: "An investigation into the nature of the construction of the suspended floors located at the first and second levels in an attempt to evaluate their respective loading capacities." 75 While it is clear from the authorities that the terms of a contractual relationship between two parties does not determine the obligations of one of the contracting parties to a third party in tort, it remains an important consideration. In Drummond and Rosen Pty Limited v Easey [2009] NSWCA 74, Handley AJA, with whom Tobias JA and Macfarlan JA agreed, said: "[60] That leaves for consideration the duty, if any, owed by the architects to the plaintiff for the slip resisting qualities of these tiles. The relevant test is that established by the judgment of Windeyer J in Voli v Inglewood Shire Council (1963) 110 CLR 74 at 85: "… what an architect must do to avoid liability for negligence cannot be more precisely defined than by saying that he must use reasonable care, skill and diligence in the performance of the work he undertakes … neither the terms of the architect's engagement, nor the terms of the building contract, can operate to discharge the architect from a duty of care to persons who are strangers to those contracts. Nor can they directly determine what he must do to satisfy his duty to such persons. That duty is cast upon him by law, not because he made a contract, but because he entered upon the work. Nevertheless his contract with the building owner is not an irrelevant circumstance. It determines what was the task upon which he entered." 61 These principles were affirmed in Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588 at 599 and 603." 76 Expert evidence was given in this matter by three structural engineers: Mr Fisher (retained by the plaintiff), Mr Barry (retained by Stonewall) and Mr Alden (retained by Byatt). The opinions of Messrs Fisher and Barry as set out in their reports assumed knowledge on the part of Byatt of the contents of the letter from Council to Mr Creighton of 18 June 2002 and knowledge of the contents and of the email sent by Mr Harper on 11 June. Those opinions have to be read in the light of my rejection of the evidence of Mr Creighton on these issues and my finding of a more limited retainer. This significantly limited the value of their reports. 77 Subject to that qualification, both Mr Fisher and Mr Barry seemed to suggest that because the work which Byatt had been retained to perform was being carried out in the context of the renewal of a POPE authorisation, the obligation of Byatt was to go beyond the terms of its retainer and in some fashion, carry out a safety audit of the whole building. Mr Alden took a more restrictive approach and was of the opinion that Byatt's obligation was to fulfill the terms of its retainer and nothing more. 78 In his evidence, Mr Byatt agreed that he understood that his report would be sent to council and would be used for the purpose of supporting Stonewall's application for a renewal of its POPE authorisation. 79 Despite the strongly expressed opinions of Messrs Fisher and Barry, I do not see why a structural engineer, as distinct from any other professional who is expert in a particular field, should be required to go beyond the terms of his or her or its retainer. I accept that in meeting the terms of a particular retainer, a number of subsidiary steps may need to be taken but that is not the proposition underlying the opinions of Messrs Fisher and Barry. They postulate obligations going considerably beyond the actual retainer. On this issue, it seems to me that the opinion of Mr Alden is logical and compelling and I prefer it. 80 There was no evidence that Byatt was retained to prepare Stonewall's application for the renewal of its POPE authorisation. What Byatt was retained to do was to provide an opinion in relation to one aspect of the POPE authorisation renewal, i.e. the investigation into the construction of the suspended floors to evaluate their respective loading capacities. It was not retained to investigate and evaluate any other aspects of the building which may have been required for the POPE authorisation renewal. 81 In any event, the assumption implicit in the opinions of Messrs Fisher and Barry on this issue is not correct as a matter of law. There was no evidence before me to support the proposition that a certificate relating to a POPE consent must certify the safety of every element, structural or otherwise, of the subject premises. The council did not have power to impose conditions on the grant of a POPE consent which went beyond structural soundness and safety in the event of fire (see Revilla Pty Ltd v Council of the City of Sydney [2003] NSWLEC 343). 82 On this issue, question 5 and its answer in the joint report of the engineering experts (exhibit C90) is relevant: "Question 5: Does a structural engineering investigation into the nature of construction of suspended floors in an attempt to evaluate their respective loading capacities convey to structural engineers that non-structural features fixed to those floors have been investigated? It was agreed by all: NO - non-structural features would be investigated only to the extent necessary to determine the loads applied to the suspended floor structure." 83 It is against that background that the "salient features" referred to in Stavar and Makawe need to be considered. As I have already indicated, I consider the retainer between Byatt and Stonewall to be the most important factor but there are other features to be considered on the issue of the existence of a duty and if a duty did exist, its content. 84 In relation to the foreseeability of harm, as Makawe made clear, what is relevant is not actual reliance by a plaintiff on the actions of the putative tortfeasor, but whether it was foreseeable that the plaintiff would be likely to so rely. In this case, the question of foreseeability would relate purely to the structural integrity of the floors, not to the ceilings attached to them. This was because the ceilings were not a structural feature of the hotel. 85 In that regard, question 7 and its answer in the joint report of the engineering experts is instructive: "Question 7: What is meant by the term "structural alterations" and is the installation of a suspended or direct fixed ceiling considered by structural engineers to be a "structural alteration"? In relation to the term "structural alterations" It was agreed by all: The term "structural alteration" refers to an alteration to the structural framework of the building. In relation to whether the installation of a suspended or direct fixed ceiling is considered by structural engineers to be a "structural alteration": NO - The installation of a ceiling would not be considered a "structural alteration", but it is an alteration which potentially, by virtue of any change of load, could affect the building structure. Note: If a heavy fire-rated ceiling was installed, the effect on the building structure should have been investigated at this time." 86 It follows that in circumstances where Byatt's retainer was restricted to examining the structural integrity of the floors, which did not require any investigation of the ceilings, what was foreseeable was injury from the collapse of the floor if that investigation was not carried out properly. What was not foreseeable was the collapse of a ceiling in such circumstances. 87 I have already referred to the nature of the harm which was injury due to the fault of persons other than Byatt. The extent of Byatt's control in that circumstance was minimal. The degree of reliance by the plaintiff on Byatt could only have been in respect of the floors, but not in respect of the ceilings. 88 The conclusion I have reached is that the duty of care owed by Byatt to the plaintiff related to the structural integrity of the floors and that it did not owe any duty to him in relation to the ceilings. It owed to him a duty to exercise reasonable care in the investigation and assessment of the structural integrity of the floors in the hotel. 89 Although the above finding is sufficient to dispose of the plaintiff's claim against Byatt, it is also clear that no breach of duty has been established against it. 90 The plaintiff's case on breach of duty is that having noticed the presence of the old lath and plaster ceiling, Byatt should have taken into account the possibility that the extent of the plaster ceiling was greater than could be observed through the limited openings which had been made. It should then have taken into account the possibility of the old plaster ceiling delaminating and thereby increasing the strain on the suspended part of the first level ceiling. The plaintiff also submitted, albeit somewhat faintly, that Byatt breached its duty to the plaintiff by failing to properly inform itself, either by making inquiries of Mr Creighton or Mr Foo or of the council, as to what activities were being carried out in the hotel. Implicit in that submission is that if Byatt had made such an inquiry, it would have been told about the dancing activities on the second level which would have led to it advising Stonewall to retain a vibration expert. 91 The matters to be taken into account when considering breach are set out in sections 5B and 5C of the Civil Liability Act 2002 (CLA).
"5B(1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm. 5C In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk." 92 The High Court has stressed in a number of cases that when considering breach, a court has to look at the facts of the case prospectively and not retrospectively, i.e. a court has to have regard to the state of knowledge of the putative tortfeasor at the time when the breach of duty is alleged to have occurred. (Sydney Water Corporation v Turano & Ors [2009] HCA 42; (2009) 239 CLR 51.) 93 In relation to Byatt better informing itself about how the hotel operated, I do not accept that there was any obligation on the part of Byatt to obtain further information from the council as was suggested by Mr Barry. The terms of its retainer were tolerably clear. Byatt was not responsible for obtaining the renewal of the POPE authorisation, nor was it negotiating with the council. If Mr Byatt required any further information to allow the company to fulfil its retainer, the logical persons to ask were Mr Creighton and if he were not available, Mr Richard Foo. 94 Mr Byatt did not make any such inquiry. He said that he assumed that the hotel was conducted in a conventional way in accordance with the approvals previously given and which were set out on the plans which had been provided to him. That assumption was confirmed when he inspected the hotel and observed in relation to the second level that it was largely made up of tables and chairs with a small stage or dance area comprising two squares of pine-board. He said that if there were any particular problem with the floors in the hotel, or if there were any other unusual feature concerning the floors, he would have expected that information to have been given to him. 95 In all the circumstances, taking into account the provisions of s 5B CLA, I am of the opinion that Mr Byatt's assumptions in this regard were reasonable. Since his company had been retained to investigate and provide an opinion in respect of the structural soundness of the floors, it was reasonable for him to expect that if there had been complaints about the floors, he would be told. Similarly, his assumptions in relation to the user of the hotel were based on what was written on the plans, which had been approved by council, and on his own observations. A need to make further inquiry of Mr Creighton or Mr Richard Foo would only arise if there were something in those plans or in his observations which should have alerted him that the hotel was being used in an unusual way, i.e. large numbers of persons jumping and dancing on the second level as was described in the Harper email. 96 I appreciate that the conclusion I have reached is in conflict with the opinion of the three structural engineers. Their evidence was to the effect that Mr Byatt should not have assumed how the hotel was being operated but should have made a specific inquiry of the client, which in this case would have been Mr Creighton. I do not regard that opinion as involving any particular expertise on the part of those engineers. It is something in relation to which the Court can reach its own conclusion. 97 The plaintiff's submission on this issue also assumes that, if Mr Byatt had made an inquiry of Mr Creighton concerning what activities were carried on at the hotel, he would have been told the truth. I am not satisfied that such is the case. It is surprising that at no time during the period of the company's retainer, which included five visits to the hotel, was Mr Byatt told anything of Mr Harper's complaint. This is despite the fact that the complaint specifically related to the structural integrity of one of the floors in the hotel. Similarly he was not told about the jumping and dancing activities by large numbers of people which apparently took place on the second level and which apparently caused that floor to "flex" and "bounce". I am not prepared to accept in the absence of evidence, that had such an inquiry been made by Mr Byatt, he would have been provided with correct information by Mr Creighton or by Mr Richard Foo. 98 The alternative basis relied upon by the plaintiff for establishing breach of duty against Byatt also fails. 99 Firstly, it is clear that Mr Byatt had no actual knowledge of how extensive was the old lath and plaster ceiling above the suspended ceiling on the first level. Moreover, I am not satisfied that given his limited observations as to the presence of lath and plaster around the large beam on that level, he ought to have appreciated that its extent was greater than he could observe. His observations of the ceiling above the ground level showed that most of the plaster had been removed. No basis has been identified for why he would have thought the situation was significantly different in relation to the first level ceiling. 100 Secondly, even if he ought to have been aware that significant parts of the old lath and plaster ceiling remained in the ceiling on the first level, that knowledge did not require any response on his part. The unanimous opinion of the structural engineers was that had the suspended and fixed sections of the ceiling on the first level, which was installed in 1993, been properly attached, the effect of the old plaster ceiling delaminating and placing an additional load onto that ceiling would have been negligible. Such additional weight would have been well within the tolerances allowed for had the 1993 ceiling been properly affixed (T.219-220). 101 Applying s 5B CLA to those facts, the response suggested by the plaintiff in that circumstance is unreasonable. So far as could be ascertained by visual observation, the 1993 installed ceilings were adequately attached to the floor joists above them. While it was undoubtedly bad building practice to leave the old plaster and lath ceiling in position when the new ceiling was installed in 1993, its continuing presence did not constitute any significant risk of harm if, as appeared to be the case, the new ceiling was properly attached. The only way of removing the old plaster and lath ceiling would be to pull up the entire floor above it so as to gain access or to remove the 1993 installed ceiling below. While there was no evidence of the cost of such an exercise, it would seem to me to involve a substantial cost, not to mention the disruption to the operation of at least one level and perhaps two of the hotel. Such a response to a very minor risk was not warranted on the evidence in this case. 102 Accordingly, the plaintiff has failed to establish breach of duty on the part of Byatt. 103 The plaintiff's case against Byatt also fails on the issue of causation. 104 On the plaintiff's primary submission that Byatt ought to have appreciated the risk that the extent of the lath and plaster ceiling was greater than was readily apparent and that it should have been removed, there was no evidence that had it made such a recommendation, this recommendation would have been acted upon by Stonewall. As already indicated, there is no evidence as to the cost of such removal except that it would have required either the removal of the floor on the second level of the hotel or the removal of the 1993 ceiling on the first level. Apart from the cost of carrying out that work, there would also be the cost of having at least one floor of the hotel unavailable for use for some period of time. 105 Even if Byatt had made such a recommendation to Stonewall, there was no evidence that the option chosen by Stonewell would have been to remove the 1993 ceiling in order to gain access to the lath and plaster ceiling rather than to remove the floor boards on the second level. There was no evidence as to the comparative cost. Of course, unless the 1993 ceiling were removed, its defective state would not have been discovered and the risk of its collapse would have remained. 106 The plaintiff's alternative basis for establishing breach against Byatt was that first a vibration expert ought to have been engaged in order to check that deflection, vibration and/or resonance did not adversely affect its conclusions concerning the structural adequacy of the suspended floors and secondly, that a vibration expert would have detected the inadequacy of the installation of the 1993 ceiling. Alternatively the findings of the vibration expert would have led to Byatt detecting the defect in the ceiling. 107 It is, however, not established that if a vibration expert had been engaged, he or she would have undertaken an invasive examination of the 1993 ceiling. The joint report of the structural engineers suggests otherwise: "Question 9: If a structural engineer was retained to provide "a certificate … which states that the premises are structurally sound and is capable of withstanding the loadings which arise from the use (particular reference is directed to the floor loading/deterioration from dancing - jumping over the years) …" and vibration testing of the floors had been performed, would that testing have: (a) Involved any invasive examination of the ceiling? … (A) We would not expect vibration monitoring to require any opening up as accelerometers can normally be clamped or otherwise fixed to accessible locations." 108 Moreover, when vibration experts were engaged after the accident, they carried out their investigations without any invasive examination. This is clear from their reports (exhibit 3D25). 109 Mr Fisher assumed that the investigations of a vibration expert would have led to the discovery of the inadequacy in the affixation of the 1993 ceiling but did not explain how. Mr Alden was much more qualified in his opinion, explaining that it would depend very much upon what the vibration expert discovered as to whether he or she would engage in any invasive tests. Moreover, there was no evidence that Stonewall would have consented to the retaining of a vibration expert, had such a recommendation been made by Byatt, and would have consented to invasive and/or destructive tests of the first level ceiling had they been recommended. 110 Not only on this issue but generally, factual causation presents a major difficulty for the plaintiff in this claim. Section 5D CLA applies. 5D(1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ( factual causation ), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ( scope of liability ). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party." 111 The application of s 5D was considered by the High Court in Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 84 ALJR 19 where the Court said: "42 Section 5D(1) of that Act divides the determination of whether negligence caused particular harm into two elements: factual causation and scope of liability.
43 Dividing the issue of causation in this way expresses the relevant questions in a way that may differ from what was said by Mason CJ, in March v Stramare (E & M H) Pty Ltd to be the common law's approach to causation. The references in March v Stramare to causation being "ultimately a matter of common sense" were evidently intended to disapprove the proposition "that value judgment has, or should have, no part to play in resolving causation as an issue of fact". By contrast, s 5D(1) treats factual causation and scope of liability as separate and distinct issues. 44 It is not necessary to examine whether or to what extent the approach to causation described in March v Stramare might lead to a conclusion about factual causation different from the conclusion that should be reached by applying s 5D(1). It is sufficient to observe that, in cases where the Civil Liability Act or equivalent statutes are engaged, it is the applicable statutory provision that must be applied. 45 Next it is necessary to observe that the first of the two elements identified in s 5D(1) (factual causation) is determined by the "but for" test: but for the negligent act or omission, would the harm have occurred?" 112 When one applies that test to the actions of Byatt, the answer is a resounding no. 113 The plaintiff's evidence did not come to grips with the factual question of what, assuming performance by Byatt of its contractual obligations, would have been required to enable anyone to discover the defect in installation of the 1993 ceiling. Since Byatt had nothing to do with the design, construction or supervision of the installation of the 1993 ceiling, it follows that the only conduct on its part which could have prevented the ceiling from collapsing would have been reactive since there was nothing to put it on notice of a deficiency in the ceiling. 114 Once again the joint report of the structural engineers is of assistance. In their answer to question 4, the structural engineers agreed in relation to the suspended section of ceiling "that it would have been necessary to prop the ceiling and remove a part of the fire-rated plasterboard to enable sufficient access for inspection of several suspension brackets, including the removal of screw fixings" and in respect of the direct fixed section of ceiling "that it would have been necessary to prop and demolish all or most of this section of ceiling, because of the concealed nature of the ceiling fixing". As Mr Alden pointed out in his report, the deficiencies in the installation of both sections of the ceiling were not apparent on visual inspection alone and a measure of invasive investigation including demolition was required to discover them. 115 Applying the "but for" causation test to Byatt on the assumption that it should have recommended retaining vibration experts, its failure to do so made no material contribution to the collapse of the first floor ceiling. Causation has not been established. 116 It follows from the above analysis that the plaintiff has failed to make out his case in negligence against Byatt. 117 Although a breach of the Trade Practices Act was pleaded against Byatt, no submissions were made by the plaintiff in respect of that claim. In any event, given my findings as to Byatt's retainer there was nothing misleading or deceptive in its report of 12 August 2002 and there was no causal link between the conduct of Byatt and the harm suffered by the plaintiff. Since the plaintiff's claim under the TPA fails on its merits, it is not necessary to consider the further question of whether the plaintiff's reliance upon sections 52, 53(A) TPA is out of time.
Plaintiff's claim against Stonewall and Presdate 118 There was no issue between the plaintiff and Stonewall that Stonewall as occupier of the hotel owed to the plaintiff as a patron of the hotel, a duty of care. The relationship of occupier and entrant has been long recognised as giving rise to such a duty. (Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479.) Accordingly, Stonewall was obliged to take reasonable care to avoid a foreseeable risk of injury to the plaintiff. On the facts of this case, the content of that duty was to take reasonable care to provide premises which were safe. I do not understand that proposition to be in issue between the plaintiff and Stonewall. 119 In relation to breach, the plaintiff relied upon two related propositions. The first was that as a result of the email from Mr Harper it was foreseeable that safety issues could arise because of the movement of the floor on the second level of the hotel and that Stonewall failed to react appropriately in meeting that risk. What Stonewall should have done was to conduct a full safety audit of the hotel, keeping in mind its age and the use to which it was being put. If that had been done, the plaintiff submitted, the defect in the installation of the first level ceiling would have been identified. 120 The alternative submission as to breach was that as a result of the email from Mr Harper, Stonewall was on notice of a potential problem in the floor on the second level of the hotel so that when it retained Byatt, it should have advised Byatt of the contents of the email and provided full information about what activities were being carried out on that level of the hotel. Had that been done, Byatt would have recommended the retaining of a vibration expert and if such an expert had been retained, the defect in the installation of the ceilings would have been discovered. 121 I do not accept the plaintiff's first submission as to breach. It involves an over-reading of the email from Mr Harper. It is true that Mr Harper referred in general terms to the age of the building. However, his concern and that of his partner clearly related to the "flex" and "bounce" of the floor on the second level of the hotel in situations where there were large numbers of people jumping and dancing on that floor. The reasonable response to that email was not to conduct a safety audit of every aspect of the hotel but to examine the structural integrity of the floors of the hotel, in particular, the floor on the second level. On that reading of the email, the first submission as to breach raises substantially the same issue as the second. 122 When considering the second submission as to breach, it is necessary to keep in mind that apart from the email from Mr Harper and the subsequent communication by the council of its requirements for renewing the POPE authorisation, Stonewall was unaware of any other physical or safety defects affecting the hotel. 123 Applying the provisions of s 5B CLA to the second submission as to breach, I have concluded that breach of duty has been established on the part of Stonewall. The risk of the floor on the second level of the hotel collapsing was clearly foreseeable. The risk was not insignificant and a reasonable person in Stonewall's position would have taken steps to have the structural integrity of the floor on the second level of the hotel assessed. There was little cost involved in making such a response since the renewal of the POPE authorisation would normally involve the participation of a structural engineer in any event. 124 The specific breach of Stonewall in this case was, having retained a structural engineer, failing to adequately brief him with all relevant information, i.e. the observations of Mr Harper and his partner as set out in the email and a detailed statement of the activities being carried on at the hotel, whether those activities were authorised or not. 125 What was not foreseeable in terms of s 5B(1) was that the ceiling on the first level of the hotel might collapse. Accordingly, the crucial issue in the plaintiff's claim against Stonewall is whether the breach on its part made a material contribution to the collapse of that ceiling in terms of factual causation as set out in s 5D CLA. 126 In considering the causation question, it is necessary to have regard to what Byatt would have done had it been provided with relevant information about the hotel's activities and the observations of Mr Harper and his partner or as the plaintiff put it, what a hypothetical competent structural engineer would have done if his retainer had included that information. 127 Whatever approach is followed, the evidence is all one way, i.e. the appropriate response was to retain a vibration expert. Mr Byatt said he would have done that had he been in possession of that information and all of the structural engineers agreed that this was the appropriate response for a competent structural engineer carrying out the retainer given to Byatt if that engineer had been made aware of that information. 128 The next step in the plaintiff's argument is the same as that which was argued in the case of Byatt. The plaintiff submitted that had vibration experts been retained, they would have either taken steps themselves or have provided information which would have led to the discovery of the defect in the installation of the 1993 ceiling. Although I have already rejected this submission in relation to the claim against Byatt, I propose to refer in more detail to the evidence on this issue. This is in deference to the arguments put on behalf of the plaintiff in relation to this submission. 129 The plaintiff relied upon the following evidence: "WITNESS FISHER: I will reply to the question that I believe I am being asked and I will expand on it if you elaborate further. If an engineer, our fictitious engineer, had been given that email, which from memory identifies significant dynamic response and resonance of the dance floor with potentially overcrowding relative to a POPE licence numbers limitation, I believe he would have immediately realised that a dynamic analysis would need to be done for the floors that are there, that there may need to be better control on the limitation of numbers of people that are on the floor by the people who run the facility, and because of the risk of collapse of the attachment of things to the floor joists of the suspended floors I would have expected that engineer to take steps to check the adequacy of such fasteners, particularly those subject to the dynamic resonance and impact factors associated with the floor vibrating." (T.254.48-255.9) "WITNESS BARRY: Just to emphasise the point that the email itself confirms that the area is subject to overcrowding and it has happened, so basically that puts an onus on the engineer to go carefully, but also puts the onus on the proprietors to ensure that the crowd numbers are controlled. HIS HONOUR: I think the thrust of Mr Webb's question was really directed at whether the line of inquiry followed by a hypothetical engineer would have eventually led to an examination of the fastening or the adequacy of the fastening of the ceiling. Mr Fisher says it would have. Do you agree with that?
WITNESS BARRY: Yes, because it is indicative, it gives an indication of structural performance under the loading of a highly active crowd, and that includes inducing vibration and amplifying the deflections that are already there, which could have an effect on the adequacy of the structure." (T.255.19- .32) "WITNESS ALDEN: I was going to say if the first assumption is the engineer has got this document, I was going to say if the next assumption is there is no known council restriction which would cause him to walk away from it because it was an unauthorised use, then I think the first thing he would do is recommend to his client that he would get dynamics people involved. I think there's sufficient concern raised with this that an engineer such as myself would feel that it's getting out of his area of expertise. Once you've got the dynamics people involved I think then it would depend on where that investigation took you. If they investigated it and said, look, really the vibrations are negligible, it's not an issue, you know, they are not going to cause any damage or anything of the magnitude that would normally be expected to cause damage then that might be the end of it. If, on the other hand, they said, look, these vibrations that are being generated by this activity are sufficient to cause maybe damage to the finishes or something like that, it may be in that circumstance it would lead on to further inquiries. But I think it would depend entirely on the outcome of the advice you got from the other dynamics experts." (T.255.38-256.4) "WEBB: Mr Alden, I want you to further assume that our notional engineer did what Mr Byatt did and looked at the ceiling of the ground floor and made some observations there about the continued existence of old lath and some plaster remaining on the underside of the joists. In the context of having this email, would that not mean that our notional engineer would himself be led to want to see what was, if anything, attached by way of lath and plaster attached to the joists on the floor above, with a view to contemplating the possibility of delamination?
WITNESS ALDEN: It's a difficult one to answer because a lot of these things are a bit of suck it and see if you are involved in a job like that. I still think the first reaction to that would be to get dynamics people involved, and I think a lot would come out of what they tell you, because you can have vibrations that feel quite disturbing but really structurally are of no consequence whatsoever. I mean that in fact is the common situation, that even though people may be concerned about what vibrations feel like, that structurally in terms of a percentage of the gravity force it is negligible." (T.256.12-.28) "WITNESS ALDEN: Yes. It's really a matter of whether something triggers you to investigate that option. But, as I say, I think really what I would do is initially get the dynamics people involved and then I would be influenced by what they tell me. In other words, if they say, "Yes, what's happening here is really of significance ", then I might well consider taking it further. If they come back and say, "It's not significant. It may be worrying some people, but it's not really a practical issue and you don't have to worry about it", I would probably not take it further. " (T.257.34-.41) "WITNESS ALDEN: … No, if the results of the dynamic investigation were these were material vibrations - in other words, they were likely to affect instrumental performance, and in terms of G forces they were significant and not trivial - then I would certainly start talking to the client about where that might lead, and maybe that would lead to looking at the floor and maybe it would lead to looking at the ceiling. Again, it depends very much on where the dynamics goes. If they say really what you have got is trivial and you don't need to worry about it, you may not go any further. … No, I can't say that, because it's a common problem that people's perceptions of vibrations are out of all proportions to the structural significance of those vibrations. There's that article that Mr Fisher referred to by Murray who's made that specific point. " (T.260.7-.24) "WITNESS ALDEN: Well, I think in a sense I've answered, in that I've said I would get a vibration expert involved and if they advised me that it was structurally significant, which I think you're asking me to assume, then I would possibly head down the path of looking at the floor structure and maybe the ceiling as well. … WEBB: Would you see the occurrence of the fall of the ceiling itself as being demonstrative of a positive result from a dynamic engineer? This accident did happen, didn't it?
WITNESS ALDEN: Well, yes. But we don't know - what we do know is that the fasteners were entirely inadequate and the ceiling was at the risk of falling from the date it was installed in 1993, and I would say at risk of falling with or without any jumping up and down or dancing, or anything like that. It was a grossly inefficient installation. So it's just a matter - it's a miracle that it didn't come down before, that's all I can say." (T.261.9-29) "WITNESS FISHER: I'm reading this email and at this stage I'm making reference to item 3, the penultimate paragraph, which says has sufficient attention been given to the fact that the building's old and the materials of construction would be deteriorating over time, possibly hastened by its current use.
On the surface, it would suggest that this dancing dynamic use of that particular floor might not have been current for so many years. Certainly with the inadequate fastenings of that suspended and direct fix ceilings, time and the dynamic effects associated with the springiness of the floor and the dancing would have had a detrimental effect on the strength that was associated with those fastenings. So I would think that the additional dynamics and, hence, the additional gravitational impact load exerted on those fastenings would have been worse when it was used as a nightclub with positive dancing effects. And I just want to understand why somebody would not consider investigating something like that suspended ceiling, because any risk assessment - and this isn't a new term; risk assessment has been back in the Australian Standards back in 1985 - somebody needs to look into it. And I don't know anybody else who's protecting the public interest if the engineer doesn't." (T.262.25-44) 130 The opinions of Messrs Fisher and Barry are clearly influenced by hindsight. Whilst they are expressed with great certainty, they do not articulate why the retaining of vibration experts would lead to an examination of the installation of the 1993 ceilings. Their opinions assume without any basis being stated, that the advice of the vibration experts would have been that there was a problem with the floor on the second level of the hotel. They assume without explanation that "flex" or "bounce" in a floor would require examination of a ceiling attached to joists beneath that floor. 131 There is no evidence to substantiate those assumptions. To the extent that there was evidence on the point, it was to the effect that there was no vibration problem with the floor. Mr Byatt gave evidence that some bracing had been added to the floor on the second level of the hotel but that this bracing was of no structural significance. That evidence was not challenged. We know that when vibration experts tested that floor, no vibration problem was identified. 132 In contrast I find the assessment of Mr Alden to be reasonable and persuasive. The effect of his evidence is that before there was some possibility, let alone likelihood, of the ceiling on the first level of the hotel being examined, there would have to be a finding by the vibration expert that there was a vibration problem with the floor. If no such finding were made a competent structural engineer would take no further action. That is in fact what happened when vibration tests were carried out after the ceiling collapsed. 133 As Mr Alden pointed out, even if the vibration experts identified a problem with the second level floor, the first step for a structural engineer would be to examine the floor, not the ceiling suspended and attached beneath the floor. Even if the hypothetical structural engineer had occasion to look at that ceiling, the defect in it was latent and would require significant effort and expense to investigate and identify. 134 In order to have discovered what caused the ceiling to fall, or to expose the likelihood that it would fall, i.e. screws of inadequate length and therefore inadequate embedment into the hardwood joists, it would have been necessary to have undertaken the following investigations:
(i) Gain access to the screws in order to enable them to be withdrawn so that the gauge, length and depth of embedment could be determined.
(ii) Because the heads of the screws were covered by the furring channel, it would have been necessary to remove the furring channels.
(iii) As two layers of 16 mm plasterboard were fixed to the furring channels, it was not possible to simply create holes in the plasterboard since removal of furring channel would require removal of large areas of plasterboard at each location being investigated.
(iv) Because of the extent of the plasterboard to be removed and the displacement of neighbouring furring channels, it was agreed that it would be cheaper to demolish this part of the ceiling rather than to selectively test parts of it.
(i) Gain access to the screws in order to enable selected screws to be withdrawn so that the gauge, length and depth of embedment could be determined.
(ii) Make openings large enough to enable access for a person to see what they were doing.
(iii) Smaller preparatory openings would have been necessary to confirm the location of the suspension system elements prior to opening up larger spaces for detailed investigation.
(iv) Support the area of ceiling hanging off the bracket prior to removal of any bracket fixing screws.
(v) Before any definite conclusions about the fixing could be made, an adequate sample size would have been necessary.
(vi) Finally it would be necessary to either repair all openings in the suspended section of ceiling or to reconstruct it. 135 In relation to the suspended section of ceiling, Mr Alden noted from the police photographs that several suspension brackets survived the collapse. This may have meant that these particular brackets were fixed with longer screws and that was the reason why they survived the greatly increased loads associated with the collapse of the ceiling. In other words, enough bracket locations would need to have been investigated to ensure that these deficiencies were not missed. As Mr Alden put it there would be an element of luck involved in the exercise: "… You have to be a little bit careful if you say that you are going to start investigating because it depends on where you start. For instance at the very end of the police video on the southern side of the beam it shows a side fixed fastener so clearly the fixing there was different to the fixing in the main part that came down. So if you started off putting the hole there you might have concluded that it was all okay and of course been wrong. So that the difficult judgment is how many holes do you have to make in order to be sure that it is okay, and where to you start. And that is a matter of chance. If you start at the front of the back, which was okay you probably would have concluded that it looked okay and if you hadn't gone further you would have been in a great deal of trouble. So you have to make quite a few significant openings and the difficulty is repairing openings in fire rated ceilings is not simple because you cannot align joints. You have to have laps of joints so you have to have different sized openings in the two layers. What I said in my report was that I think by the time you went through the process the scope of work and amount of work involved would probably be of a similar magnitude to demolishing and rebuilding that section. In other words from a practical point of view you could say to the client I can do this investigation but at the end of the day it will probably cost you as much as replacing it." (T.225.6-.27) 136 There was of course no evidence that, had recommendations been made either by the vibration experts or by a structural engineer for these kinds of investigations into the ceiling of the first level of the hotel, Stonewall would have given instructions for such work to be carried out. To the extent that the Court is able to draw an inference from the conduct of Stonewall, that inference would be contrary to such a conclusion. The failure of Stonewall to properly brief Byatt by advising him of the Harper email and the activities being carried out on the second level of the hotel does not support an inference that had the need for such an investigation of the first level ceiling been communicated to Stonewall, it would have given instructions to proceed. 137 It follows that factual causation has not been established between the breach of duty established against Stonewall and the harm which eventuated. The plaintiff's case depends upon a sequence of events leading up to an investigation and discovery of the defect in the installation of the ceiling on the first level. That sequence of events depends upon assumptions which have not been made out by the evidence. The plaintiff has not established causation against Stonewall and accordingly his claim in negligence against Stonewall fails. 138 No evidence was led to establish a claim in negligence against Presdate. There was no evidence that Presdate had any knowledge of any of the events which formed the basis of the plaintiff's claim. Its only participation in the matter was providing its consent to Stonewall's application for a renewal of the POPE authorisation. No submissions were addressed to the Court suggesting any liability on the part of Presdate. Accordingly the plaintiff's case in negligence against Presdate fails.
Claim under TPA 139 The plaintiff made no submissions concerning the liability of Stonewall or Presdate under the TPA. Had such submissions been made, they would have failed. Leaving aside the limitation defence which was raised under s 82(2) there was no evidence that Stonewall or Presdate engaged in deceptive or misleading conduct of the necessary kind. There was no part of the report of Byatt which was identified as being deceptive or misleading to the knowledge of Stonewall or Presdate, nor was there other conduct upon which the plaintiff could rely, which had that effect. 140 Even if there were conduct which came within the provisions of s 52 TPA the plaintiff has failed to establish a causal connection between such conduct and the harm which befell him. The plaintiff's case against Stonewall and Presdate under the TPA fails.
Cross-Claims 141 The cross-claims between Byatt and Stonewall based on contribution under the Law Reform (Miscellaneous Provisions) Act 1946 fail. This is because the plaintiff's claim against those defendants has failed. In relation to that part of Stonewall's cross-claim against Byatt which alleged breach of contract, that claim fails. As is clear from the above findings, Byatt fulfilled its retainer and no breach of its contract with Stonewall has been established.
Plaintiff's claim against ATPC 142 No submissions were made by the plaintiff concerning the liability of ATPC. 143 The plaintiff's claim against ATPC is that it acted as a principal, rather than as an agent of Stonewall in negotiations with Byatt and the council. On this issue I accept the evidence of Mr Creighton. I am of the opinion that he did utilise the letterhead of ATPC as a matter of convenience and because he felt that as a town planning consultant, communications through it with the council would carry more weight than communications directly from Stonewall. I have concluded that ATPC at all times acted as an agent of Stonewall and not as a principal. 144 Significantly, no submissions were made by the plaintiff to the contrary. 145 Even if ATPC had been a principal, for the reasons set out above in the claim against Stonewall, the plaintiff's claim against it would still have failed. 146 The cross-claim by Byatt against ATPC fails because the plaintiff's claim against ATPC has failed. ATPC's cross-claim against Byatt and Stonewall fails for the same reason.
Costs 147 These reasons for judgment will have significant costs consequences. The parties have not had the opportunity to consider the reasons and to make submissions as to costs. Moreover, the Court is unaware of whether any pre-trial offers were made and whether any special costs orders are sought. In those circumstances, I propose to reserve the question of costs to enable the parties to make submissions.
Orders 148 The orders which I make are as follows:
(1) In the claim by the plaintiff against J A Byatt Pty Limited there will be judgment for the defendant.
(2) In the claim by the plaintiff against Stonewall Hotel Pty Limited there will be judgment for the defendant.
(3) In the claim by the plaintiff against Presdate Pty Limited there will be judgment for the defendant.
(4) In the claim by the plaintiff against Australian Town Planning Consultants Pty Limited there will be judgment for the defendant.
(5) In the cross-claim by J A Byatt Pty Limited against Stonewall Hotel Pty Limited and Australian Town Planning Consultants Pty Limited (the first cross-claim) there will be judgment for the cross-defendants.
(6) In the cross-claim by Stonewall Hotel Pty Limited against J A Byatt Pty Limited (the third cross-claim) there will be judgment for the cross-defendant.
(7) In the cross-claim by Australian Town Planning Consultants Pty Limited against J A Byatt Pty Limited and Stonewall Hotel Pty Limited (the fourth cross-claim) there will be judgment for the cross-defendants.
(8) I reserve the question of costs for further argument. 149 It follows from these reasons for judgment that there will be no further hearing of the plaintiff's claim for damages. I now vacate the order which I made adjourning to a date to be fixed the further hearing of that part of the plaintiff's claim. Costs issues arising from the plaintiff's claim for damages should be dealt with at the same time as the other costs questions. **********
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Al Mousawy
Howitt-Stevens Constructions Pty Limited & Ors
(2009) 84 ALJR 19
(1987) 162 CLR 479
(2009) 239 CLR 51
(1963) 110 CLR 74
(1965) 113 CLR 588
Judgment for Byatt, Stonewall, Presdate and ATPC on the plaintiff’s claims. The cross-claims were dismissed by judgment for the relevant cross-defendants. Costs were reserved for further argument. The Court vacated the adjournment of the damages hearing. [148]-[149]