THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : GOVE -v- BLACK & ORS [2006] WASC 298

File No : CIV 2375 of 1997, CIV 2370 of 1997, CIV 2371 of 1997, CIV 2373 of 1997, CIV 2374 of 1997, CIV 2376 of 1997, CIV 2377 of 1997, CIV 2378 of 1997, CIV 2381 of 1997, CIV 2382 of 1997, CIV 2398 of 1997, CIV 2411 of 1997, CIV 2412 of 1997, CIV 2413 of 1997, CIV 2414 of 1997, CIV 2415 of 1997, CIV 1202 of 1998

Torts - Negligence - Balcony collapse - Lack of redundancy in structural design - Substitution of oregon for jarrah - Failure to eliminate or reduce moisture traps

Liability of engineer - Whether structural information incorporated in design of balconies obtained from engineer - Whether engineer assumed responsibility for structural design - Failure to identify deficiencies

Liability of architect - Whether architect shared responsibility for structural design - Whether architect observed or should have observed substitution of oregon for jarrah - Whether failure to notify builder of substitution causative - Whether risk of structurally significant wood rot due to moisture traps reasonably foreseeable - Whether reasonable to eliminate or materially reduce risk - Causation

Liability of strata company - s 35(1)(c) Strata Titles Act 1985(WA) - Statutory duty to keep in good and serviceable repair and properly maintain common property - Scope and purpose of statute - Whether duty is strict - Whether breach of duty gives private right to damages - To whom duty is owed

Liability of local council - Statutory requirement to inspect building and certify consistency with building plans and specifications - Limited inspection of building - Failure to identify substitution of oregon for jarrah - Whether common law duty of care owed to visitors of building - Breach - Causation - Apportionment of damages

Conveyancing (Strata Titles) Act 1961 (NSW), s 4(3), s 20(2)

Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), s 7(2)

Strata Schemes Management Act 1996 (NSW), s 62

Strata Titles Act 1966 (WA), s 4, s 5(6), s 13(4)(b), s 13(4)(h), s 20

Strata Titles Act 1985 (WA), s 17(1), s 32, s 35(1), s 36(1), s 39(1), s 54(1a)(b), s 83(1), s 102, s 122(1)

Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4)(b)

Grounds 2, 3 and 6 upheld; grounds 1, 4 and 5 dismissed

Seventh Respondent : Mr A S Bell SC & Mr J G Staude

Twelfth Respondent : Mr A S Bell SC & Mr J G Staude

Thirteenth Respondent : Mr A S Bell SC & Mr J G Staude

Fourteenth Respondent : Mr A S Bell SC & Mr J G Staude

Fifteenth Respondent : Mr A S Bell SC & Mr J G Staude

Sixteenth Respondent : Mr A S Bell SC & Mr J G Staude

Seventeenth Respondent : Mr B W Rayment QC & Mr G R Hancy

Eighteenth Respondent : Mr M Corboy SC & Mr S F Popperwell

Seventh Respondent : Mr A S Bell SC & Mr J G Staude

Eleventh Respondent : Mr A S Bell SC & Mr J G Staude

Twelfth Respondent : Mr A S Bell SC & Mr J G Staude

Thirteenth Respondent : Mr A S Bell SC & Mr J G Staude

Fourteenth Respondent : Mr A S Bell SC & Mr J G Staude

Fifteenth Respondent : Mr A S Bell SC & Mr J G Staude

Sixteenth Respondent : Mr A S Bell SC & Mr J G Staude

Seventeenth Respondent : Mr A S Bell SC & Mr J G Staude

Eighteenth Respondent : Mr B W Walker QC & Mr P Mendelow

Eleventh Appellant : Mr A S Bell SC & Mr J G Staude

Thirteenth Appellant : Mr A S Bell SC & Mr J G Staude

Fourteenth Appellant : Mr A S Bell SC & Mr J G Staude

Fifteenth Appellant : Mr A S Bell SC & Mr J G Staude

Sixteenth Appellant : Mr A S Bell SC & Mr J G Staude

Seventeenth Appellant : Mr A S Bell SC & Mr J G Staude

First Respondent : Mr B W Rayment QC & Mr G R Hancy

Fourth Respondent : Mr B W Walker QC & Mr P Mendelow

Sixth Respondent : Mr M Corboy SC & Mr S F Popperwell

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Albion Insurance Co Ltd v Body Corporate Strata Plan 4303 [1983] VicRp 94; [1983] 2 VR 339

Amaca Pty Ltd v Hannell [2007] WASCA 158

Bailey v Redebi Pty Ltd [1999] NSWSC 918; (1999) Aust Torts Reports 81-523

Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408

Caledonian Collieries Ltd v Speirs [1957] HCA 14; (1957) 97 CLR 202

Cole v Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) CLR 469

Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1

Devries v Australian National Railways Commission (1993) 177 CLR 472

Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317

Fimiston Mining NL v Western Reefs Ltd (1996) 14 WAR 387

Florida Hotels Pty Ltd v Mayo [1965] HCA 26; (1965) 113 CLR 588

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Fractionated Cane Technology Ltd v Ruiz-Avila [1988] 2 Qd R 610

Galashiels Gas Co Ltd v O'Donnell [1949] UKHL 2; [1949] AC 275

Gove v Black [2006] WASC 298

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540

Gration v C Gillan Investments Pty Ltd [2005] QCA 184; [2005] 2 Qd R 267

Hamilton v National Coal Board [1960] 2 WLR 313

Henville v Walker [2001] HCA 52; (2001) 206 CLR 459

House v The King [1936] HCA 40; (1936) 55 CLR 499

Jacklin v Proprietors of Strata Plan No 2795 [1975] 1 NSWLR 15

Lubrano v Proprietors of Strata Plan No 4038 (1993) 6 BPR 13,308

Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1995] UKHL 4; [1996] 1 AC 211

March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

MLC v Evatt [1968] HCA 74; (1968) 122 CLR 556

Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513

Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313

O'Conner v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464

Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180

Perrett v Collins [1998] 2 Lloyd's Rep 255

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492

Proprietors of Strata Plan 159 v Blake (1986) NSW Strata Titles Cases 30-086

Proprietors of Strata Plan No 464 v Oborn (1975) 1 BPR 9623

Proprietors Strata Plan No 30234 v Margiz Pty Ltd (1993) 7 BPR 14,458

Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330

Reeman v Department of Transport [1997] EWCA Civ 1355; [1997] 2 Lloyd's Rep 648

Ridis v Strata Plan 10308 [2005] NSWCA 246; (2005) 63 NSWLR 449

Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870

Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479

Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd [2001] NSWCA 461; (2001) 53 NSWLR 626

Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434

Seden v The Proprietors 'Tyalla Court' [1978] Qd R 53

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Yuen Kun Yeu v Attorney-General of Hong Kong [1988] 1 AC 175

1 McLURE JA: These appeals are from orders made by Templeman J in an action for personal injuries resulting from the collapse of a balcony during a New Year's Eve party on 31 December 1996.

2 The party was held at one of eight strata-titled units created from the conversion of a late Victorian industrial building known as the Old Soap Factory. The conversion of the Old Soap Factory, which included the addition of balconies, was substantially completed by November 1982.

3 Lavender Bay Pty Ltd (Lavender Bay), the then owner of the Old Soap Factory, carried out the conversion works as owner-builder. Lavender Bay employed a registered builder, Mr Steven Bumstead, to supervise the works. Lavender Bay went into liquidation shortly after the completion of the conversion and sale of the units. Mr Bumstead died prior to trial.

4 Lavender Bay retained a firm of architects, Drexel London, to provide architectural services, including design drawings and specifications, for the conversion.

5 On Drexel London's recommendation, Lavender Bay retained consulting engineers, Halpern Glick Pty Ltd (Halpern Glick) to provide engineering advice when requested on structural aspects of the conversion.

6 The strata plan for the Old Soap Factory was registered pursuant to the Strata Titles Act 1966 (WA) (the 1966 Act). For that purpose, Lavender Bay obtained a certificate from the City of Fremantle (the City) under s 5(6)(c) of the 1966 Act, stating that the Old Soap Factory had been inspected and was consistent with the building plans and specifications. The body corporate is The Owners of the Old Soap Factory (Strata Title Plan 11175) (the Strata Company).

7 The balconies were not constructed in accordance with the drawings. The balcony collapsed because of a decision by Lavender Bay to substitute oregon timber for the select grade structural jarrah specified by Drexel London. The oregon was so weakened by rot that the balcony failed suddenly and catastrophically. The catastrophic nature of the failure was a result of the failure to incorporate in the balcony design an appropriate degree of redundancy to prevent progressive collapse. Tying the central column of the balcony to the wall of the building would have provided the necessary redundancy.

8 Persons injured in the balcony collapse (the injured claimants) sued, among others, the City and Halpern Glick in negligence and the Strata Company for breach of statutory duty. All but two of the injured claimants sued Drexel London in negligence.

9 The trial judge held that Drexel London was liable in negligence for failing to incorporate an appropriate degree of redundancy in the design of the balcony and in failing to inform Lavender Bay of the consequences of substituting oregon for jarrah.

10 The trial judge held the City liable for negligently certifying that the converted Old Soap Factory was consistent with the building plans and specifications. The claims against the Strata Company, Halpern Glick and others were dismissed. The trial judge apportioned 70% of the liability to the City and 30% to Drexel London.

11 Drexel London, the injured claimants and the City have appealed. Drexel London in its appeal claims the trial judge erred:

(a) in finding that Drexel London had breached its duty of care by failing to incorporate an appropriate degree of redundancy in the balcony design (ground 1);

(b) in finding that Drexel London had observed the use of oregon in the balcony (ground 3);

(c) in finding that the failure to inform Lavender Bay of the use of oregon caused or contributed to the damage (ground 2);

(d) in taking an inconsistent approach to the claims against Drexel London and Halpern Glick (ground 5);

(e) in failing to find that Halpern Glick provided the structural information incorporated in the drawing prepared by Drexel London (ground 6); and

(f) in dismissing the claim against the Strata Company (ground 4).

12 The injured claimants, the Strata Company and Halpern Glick filed notices of contention in the Drexel London appeal. The injured claimants contend the trial judge should have found that Drexel London was negligent in designing a balcony that allowed moisture to be trapped in the structure causing the timber to rot. The Strata Company contends that the 1966 Act does not give the injured claimants a right to claim damages for personal injury. Halpern Glick contends that if it supplied the structural information incorporated by Drexel London in its drawing, it owed no duty of care to Drexel London or alternatively, did not breach its duty.

13 The injured claimants appeal on the grounds that the trial judge erred:

(a) in dismissing their claim against the Strata Company (ground 1);

(b) in dismissing their claim against Halpern Glick (grounds 2 and 4); and

(c) in failing to make a Sanderson or Bullock order against Drexel London and the City in respect of the costs of the successful defendants (ground 3).

14 The injured claimants applied to amend ground 4 to read as follows:

The learned trial judge erred in dismissing the appellant's claim against the sixth respondent (Halpern Glick) in that he erred in fact in failing to find that Drexel London obtained structural advice with respect to the design of the balcony from an engineer from Halpern Glick and that such advice was negligent Halpern Glick was negligent in failing to identify that the design of the balcony failed to provide adequate or sufficient bracing to stabilise the central column of the balcony.

15 The application to amend was opposed by Halpern Glick.

16 The Strata Company and Halpern Glick filed notices of contention in the injured claimants appeal in the same terms as the Drexel London appeal. Halpern Glick also filed a cross-appeal which only arises for determination if the injured claimants succeed in their appeal against Halpern Glick and the Strata Company, the City and/or Drexel London are also liable.

17 The City in its appeal claims the trial judge erred in finding that it owed a duty of care to the injured claimants, that the duty had been breached and that the breach caused the loss. It also challenges the apportionment of liability.

18 The trial judge provided a detailed description of the structure of the balcony. That information is necessary for an understanding of the issues. What follows is taken from the trial judge's reasons.

19 One of the buildings comprising the Old Soap Factory was converted into four units, each having five floors. Units 1 and 4, which are respectively on the southern and northern ends of this building, both had balconies constructed at the first and second floor levels of their end walls. The structure of the balconies was identical. The first floor balcony of Unit 1 was the balcony that failed.

20 The balconies to Unit 1 were approximately 8.1 m wide and 3 m deep. The floor of each balcony was constructed of closely spaced wooden battens nailed to 2.9 m long timber joists, being approximately 190 mm x 48 mm in cross-section. There were 16 joists. The northern ends of the joists were supported by a timber plate of similar cross-section, but about 8 m long, which was bolted to the southern wall of Unit 1 by 'trubolts'. This is the proprietary name for a bolt which is inserted into a hole in the wall and expands into the hole when tightened.

21 The southern ends of the joists were supported by two lengths of timber (referred to as plates) of similar cross-section to the joists. These plates were each about 4 m long, separated by a steel column (the central column) and backed by a steel member (referred to as a beam) which formed the southern edge of the balcony. The timber plates were bolted to the steel beam by stud bolts welded to it at intervals along its length.

22 Oregon, a species of pine, was used for the joists and supporting plates.

23 The design called for the joists to be half-housed into their supporting timber plates. This required slots to be cut into the plates opposite the ends of each joist. The width of the slots would be equal to the thickness of the joists. The slots would extend halfway into the plates and halfway down from the top of the plates. Thus, each slot would be approximately 48 mm wide, 24 mm deep and 95 mm long.

24 The ends of each joist would be cut so that the upper half formed a tongue having dimensions equal to its corresponding slot. If the required cuts had been made accurately, the ends of the joists would have fitted exactly into the plates such that the weight of the balcony would have been supported on 32 points of contact each having an area of 48 mm x 24 mm.

25 In fact, the depth of housing was far less than specified in the design. The trial judge found the depth of housing varied between about 9 mm and 14 mm. The joists were fixed to the plates by skew nails. That is, nails driven through the joists and into the plates at an angle of about 45 degrees.

26 In addition to the central column, there were two steel columns, one at each end of the southern side of the balcony.

27 The eastern and western sides of the balconies were fabricated from steel having the same cross-sectional dimensions as the southern beam. The side (steel) beams, to which the end joists were attached, 'tied' the end (steel) columns back to the southern wall of the building. The beams were let into the wall and were bolted through it.

28 The end columns were not only tied back to the wall by the side beams, but also by means of 16 mm diameter steel rods and turnbuckle assemblies slung under the joists. Each set of rods was hooked to the steel columns at the southern end of the balcony and at the other end, to a steel plate bolted through the southern wall of the building, immediately below the wall plate.

29 The trial judge made the following findings as to the physical cause of the collapse:

I find ... that the balcony collapsed because the oregon timber from which the southern supporting plate had been cut, was so weakened by rot that it failed suddenly, somewhere in the region of the south-eastern corner. The cause of the rot was the moisture trapped between the southern support plate and the outer steel beam [86].

The failure of the southern support plate caused the joists in that region to fall, thereby creating a wedging effect on the composite southern supporting plate and steel beam. The wedging effect caused the outward deflection of the structure, thus reducing the bearing areas of the joists on their support plates [87].

...

Because the central column was not tied back to the southern wall of the building there was nothing to prevent or restrict the operation of the mechanism described above. The collapse was therefore rapid and complete [89].

If the balcony had been constructed of jarrah, rather than oregon, it would not have rotted to the same extent: and the balcony would not have collapsed as or when it did [90].

If the joints connecting the joists to their supporting plates had been fully half-housed, the structure would have been stronger, but the failure would still have occurred. That is because of the magnitude of the horizontal force created by the wedging effect of falling joists. I accept the expert evidence that half-housing was considered to be an acceptable means of joining the joists to the supporting plates [91].

If the central column had been tied back securely to the southern wall of the building, the collapse would still have occurred to some extent. However, it would not have been catastrophic, so that people on the balcony at the time of the collapse would have been able to escape to the safety of the building [92].

30 Drexel London was the name of the partnership between Ralph Drexel and Geoffrey London. Drexel London commenced acting for Lavender Bay in relation to the conversion of the Old Soap Factory in around October/November 1980.

31 Halpern Glick was instructed on 4 December 1980. Halpern Glick's contract of retainer was with Lavender Bay. It was not a general retainer. Rather, Halpern Glick was appointed as a consultant to be called upon as and when its services were required.

32 Drawings were produced by Drexel London in March 1981. These included a drawing numbered 15 which showed a side elevation of the balconies. Drawing 15 contained a number of structural details set out in notes. The notes included the following:

- all pergola rafters, plates and balcony joists were to be 'select grade structural jarrah';

- each balcony floor was to be constructed on 16 joists made from timber dressed from 175 x 50 millimetres, evenly spaced and half housed into 175 x 50 millimetre plates at each end;

- at the underside of the rafters at the upper level and below the joists at the lower levels, 16 millimetre diameter mild steel rod and turnbuckle assemblies were to be hooked to mild steel eyes 'welded to post and central wall plate'. The plate was to be fixed to the wall with 4 TS-12-7SS stainless steel trubolts.

33 There was a further note on drawing 15, positioned above the depiction of the balconies. It was as follows:

Balconies generally as noted below and to structural engineer and architects details and specifications.

The details set out in the notes summarised above are engineering, rather than architectural matters. That is to say, the structural integrity of the balconies depended on the correct sizing and appropriate construction of the various elements of the balcony [120].

35 Although drawing 15 contained sufficient structural information to enable Lavender Bay to obtain a building licence, it contained insufficient detail to enable the balconies to be constructed. The trial judge accepted Mr London's evidence that one of the purposes of drawing 15 was to make it clear that further structural engineering and architectural detail would be required [174].

36 Although drawing 15 was produced by Drexel London, the trial judge found that Mr Drexel obtained the structural information contained in that drawing from an engineer [152]. However, the trial judge did not accept Mr Drexel's evidence that the structural information was provided by Halpern Glick [153].

37 With some exceptions, the structural information in drawing 15 appears on two sketches made by Mr Drexel recording the information supplied by the engineer. One sketch shows the plan view of the balcony (the Drexel sketch) with notations as follows:

The three steel columns are shown at the top of the sketch with the steel rods from the end columns meeting at a plate on the southern wall of the building shown on the bottom of the sketch. 'TB' denotes the turnbuckle assemblies.

38 As identified by the trial judge at [149], the notes on the sketches made by Mr Drexel also include the following:

• 'stainless steel trubolt TS-12-7SS' - in relation to the fixing of the timber wall plate;
• a half-housed joist-wall plate joint;
• a 200 x 300 millimetre plate, apparently containing eyes which form part of the bracing assembly;
• 'timber struct. grade karri' - apparently a reference to the appropriate timber for the construction of the balcony;
• '150 x 50 @ [610] max. centres' - apparently a reference to the joist size;

• what appears to be a steel beam 200 millimetres deep and 12 millimetres thick is shown welded by a continuous fillet weld to a 76 x 76 x 5 angle iron. This appears to be the exterior steel beam at the extremity of each of the balconies.

39 Mr Drexel made some changes to what was specified by the engineer. The changes shown on drawing 15 include the specification of jarrah not karri and an increase in the size of the steel rods, joists and angle irons. The trial judge accepted Mr Drexel's evidence that he decided to specify jarrah in place of karri because it was a stronger timber and that he increased the size of the rods, joists and angle irons in order to increase the strength of the structure. Mr Drexel did so because, in his experience, engineers specified minimum sizes. He said it was not uncommon for him to improve on an engineer's specification and that he was competent to do so.

40 The trial judge found that Halpern Glick was not asked to check the balcony drawings or (with one exception) to provide any of the missing detail [175].

41 Drexel London's initial understanding was that after completion of the design development stage and Lavender Bay's acceptance of the design and the builder's cost estimate, they were to proceed with traditional contract documentation. By that is meant a building contract between Lavender Bay and a builder with Drexel London having contract administration and supervision duties under the building contract. The expectation was that an Edition 5b Lump Sum Contract (produced by the Royal Australian Institute of Architects and the Master Builders Federation of Australia) would be used.

42 At the time Drexel London produced the drawings in March 1981 Lavender Bay was undecided as to how it would proceed [259]. By early April 1981 it had decided to undertake the conversion of the Old Soap Factory as owner-builder and engage Mr Bumstead [263]. A building licence was issued on 16 June 1981 [364].

43 Drexel London had prepared a specification on the basis that Lavender Bay would enter into a contract with a builder in the traditional way [266]. The trial judge accepted Mr Drexel's evidence that the specification 'was not intended to apply universally' once it was decided that the conversion was to be carried out by Lavender Bay as owner-builder [274]. The judge also accepted that Drexel London had no contractual obligation to Lavender Bay in relation to contract administration or supervision [275], [284].

44 During the course of construction, either one or both of Mr Drexel and Mr London attended weekly site meetings [276]. The trial judge accepted that Drexel London had no authority to give instructions to Mr Bumstead but that decisions at site meetings were reached as a result of discussion [280] - [281]. The trial judge concluded that Drexel London was required to monitor the progress of the work as far as was reasonable in the course of the weekly site visits, and at the very least, to advise their client if they became aware of any defective workmanship [285].

45 The steel work for the balconies was fabricated by an organisation known as Phillips Engineering. The trial judge found that the steel work could not have been fabricated without the preparation of shop drawings. Such drawings contain sufficient detail to enable the steel to be cut and welded as appropriate [176]. Shop drawings for the steel work for the balconies were prepared by Philips Engineering [193].

46 Mr Jeffrey Welch was employed as a site inspector by Halpern Glick. He had worked as a structural design and civil draftsman but had no engineering qualifications. As a site inspector, Mr Welch's duties included visiting the building site to check work in progress to ensure it was being carried out in conformity with Halpern Glick's designs and specifications. The trial judge accepted Mr Welch's evidence that it was his job to look for non-approved structures and make sure whatever was happening on site conformed to the requirements of the engineer. Had he discovered that there was a non-approved structure he would have been 'pushing all the alarm bells because that was what I did' [185].

47 The minutes of a site meeting on 7 April 1982 record the following in relation to the balconies for units 1 and 4:

Halpern Glick and Phillips Engineering to liaise closely on tying and bolting decks back to existing building to ensure absolutely secure and permanent security of the decks, building and fittings.

48 The judge found that Mr Welch attended at site on 8 April 1982 as a result of the decision recorded in these minutes [194].

49 Other minutes which, although undated, appear in the sequentially numbered pages of the minute book between the minutes of site meetings on 31 March and 7 April 1982, record under the heading 'Balconies':

Halpern Glick to be in attendance when being installed to make sure balconies comply with their design.

50 On 8 April 1982 Mr Welch attended the Old Soap Factory site at the request of Mr Bumstead. Mr Welch subsequently prepared a Halpern Glick site report in which he set out the detail of the matters he had been asked to address. The report notes:

The erectors of the steel work had experienced difficulty in securing horizontal bracing to the brick wall in that the trubolts fixing the anchor plates pulled out when tension set in to braces via the turnbuckles. Alternative fixing details were discussed with Bumstead and the following agreed to: ...

51 Mr Welch proposed that the steel plate carrying the ends of the bracing rods should be secured to the southern wall of the building by bolts which passed through the wall [187]. Mr Welch also noted there was no system for attaching the returns of the steel beams forming the eastern and western sides of the balconies to the building [188]. Mr Welch discussed this matter with Mr Bumstead and provided the missing detail, which involved welding a right angle cleat onto the beam end and securing the cleat with a bolt passing through the brick wall [189]. The trial judge continued:

It is apparent also that Mr Welch noted that the central column on the southern side of the balcony was not secured to the southern wall by a tie rod as were the corner columns. On his sketch, Mr Welch noted that the central column was to be 'tied back by joists'. He did not, however, provide any detail as to the way in which that tying back would be achieved [190].

52 Mr Welch's sketch with relevant annotations is as follows:

The southern wall of the building with the anchor plate is shown on the right side of the sketch and the three steel columns on the left side.

53 The trial judge accepted Mr Welch's evidence generally [192]. Based on that evidence he found that although the Drexel London drawings had been given to Halpern Glick in May 1981, Halpern Glick had not provided any of the missing detail because there had been no request to do so [193]. He also found that the shop drawings were prepared by Phillips Engineering without input from Drexel London or Halpern Glick [193].

54 The trial judge inferred the balconies had been completed, or were nearing completion, by 9 June 1982. By that stage the decision to use oregon rather than jarrah must have been taken. The trial judge found the decision was not made at a site meeting. He continued:

I accept the evidence of Mr Drexel that Mr Bumstead was a competent builder. A registered builder such as Mr Bumstead would have known that oregon was not suitable as a structural timber for exterior use. I therefore draw the inference that Mr Bumstead did not substitute oregon for jarrah on his own initiative.

I accept that neither Mr Drexel nor Mr London were told about the substitution and that they did not suggest or authorise it. The inference is therefore overwhelming that the substitution was carried out on the instruction of Lavender Bay [202] - [203].

55 At the end of June 1982 Mr Drexel and Mr London were asked to prepare a list of items to be rectified and completed [204]. The trial judge found that the inspection list was prepared as a result of inspections carried out by Mr Drexel and Mr London over a number of visits [205]. The trial judge also found that at one of these inspections Mr Drexel and Mr London observed that oregon had been substituted for jarrah [228]. I return to this issue below.

The findings against Drexel London on redundancy

56 The injured claimants' pleaded case against Drexel London was that it failed to provide for stabilising bracing of the central column of the balcony.

57 The trial judge accepted the expert evidence of Mr Donald Phillips, an engineer, that all structures should be designed with some degree of redundancy so as to prevent progressive collapse [246]. That is, elements should be included in a structure which will permit loads to be distributed to other elements in the event of a failure. The purpose of the redundant member is to prevent what would otherwise be a catastrophic failure of the structure [70]. The trial judge continued:

That being so, I conclude that an architect is negligent if his design does not incorporate an appropriate degree of redundancy [246].

In the present case, there was no redundancy in the southern composite supporting plate and beam structure. That is to say, there was nothing to restrain the outward movement of the structure in the event of a deck collapse [247].

I have accepted the evidence of those experts whose opinion it was that a restraint on the central column would have prevented (at least) the catastrophic collapse of the balcony. Mr Drexel's argument is that:

' ... If [the balcony] had been built in jarrah and the connections were correctly done, I don't think there would have been any real risk of that column moving out' (TS 717) [248].

I do not accept that proposition. It was obvious to Mr Welch that the central column should be tied back. He had plans which specified jarrah: and he had no reason to suppose that the joists would be cut inaccurately. In other words, even though the risk of the column moving outwards was small, it was a risk which could easily have been eliminated: and in my view, should have been [249].

I therefore consider that Drexel London were negligent in failing to incorporate that stabilising element in their design of the balcony. That failure was a cause of the collapse of the balcony and the plaintiff's injury [250].

58 In supplementary reasons apportioning contribution between Drexel London and the City, the trial judge explained why he considered the City far more culpable than Drexel London. He said:

[Drexel London] acted reasonably in obtaining structural advice from an engineer. They are liable for the deficiencies in the design of the balcony because they put it forward as their own [99].

59 The injured claimants also pleaded that Halpern Glick was negligent in not identifying that the design of the balcony failed to provide for stabilising bracing of the central column of the balcony. When addressing that issue the trial judge said:

[I]t is true that the design of the balcony depicted in drawing 15 made no express provision for bracing the central column of the balcony in such a way as to connect the column to the [southern] wall of the building [297].

It is clear that when Mr Welch visited the site on 8 April 1982, he appreciated the need to provide this link. On his sketch he noted that the central column was to be 'tied back by joist'. I accept the evidence of Mr Blake that this would have been an acceptable method of securing the central column. The note therefore served as an advice to Mr Bumstead that the column should be secured in this way [298].

When Mr Welch visited the site, the steel work was being erected. The timber elements of the balconies could not have been constructed until after the steel work had been completed. That being so, Mr Welch would not have been in a position to provide any advice to Mr Bumstead as to the precise method of linking the joist to the central column. That was a matter which, if not within Mr Bumstead's competence as a builder, would have required him to take advice either from Drexel London or Halpern Glick [299].

...

There is no evidence that any representative of Halpern Glick visited the Old Soap Factory to inspect the balconies after 8 April 1982, or was asked to do so [301].

In these circumstances, I consider that Halpern Glick cannot be held responsible for the fact that the design of the balcony did not include any detail for the tying back of the central column to the north [sic] wall of the building. The claim against Halpern Glick must therefore be dismissed [302].

60 The application by the injured claimants to amend ground 4 of their grounds of appeal raised an issue as to the intended meaning and scope of [298] of the trial judge's reasons. That matter needs to be determined before dealing with the grounds of appeal.

61 The submissions put on behalf of the injured claimants at the hearing of the appeal took an unforeshadowed turn. The injured claimants contended that on the proper construction of [298] in the context of the reasons as a whole, the trial judge did not intend to find that it was acceptable if the central column was 'tied back by joist'. The finding of acceptability they say relates to the central column being tied back by two diagonal braces to the southern wall of the building, being the inverse of the bracing of the end pillars. The term bracing was used at trial to mean steel tie rods.

62 It was said the trial judge could not have intended to find that tying back by joists was an acceptable method of securing the central column because such a finding was inconsistent with other findings made by the trial judge, illogical and irrational. The starting premise for that contention is that Mr Welch's sketch of 8 April 1982 incorporates the same relevant design feature as the Drexel sketch on which drawing 15 was based, namely the central column was to be tied back to the building solely by means of the joists.

63 Both Drexel London and Halpern Glick accept the correctness of that premise. They contend the detail to which the trial judge refers in [190], [299] and [302] relates to the means by which the joists were to be secured to the timber plates fixed to the southern wall of the building and to the timber plates fixed to the steel beams between the columns. The joists were to be half-housed in the plates and fixed by skew nails.

64 The injured claimants on the one hand and Drexel London and Halpern Glick on the other all rely on the evidence of Mr Peter Blake to support their contentions as to the trial judge's intention. His Honour said in [298] he accepted the evidence of Mr Blake that 'tied back by joist' would have been an acceptable method of securing the central column.

65 Mr Blake was an experienced structural engineer in the employ of Halpern Glick and from September 1981 was involved in aspects of the engineering design for the conversion of the Old Soap Factory [145]. Mr Welch was working under Mr Blake's supervision and direction (ts 876) and Mr Blake approved Mr Welch's site report of 8 April 1982.

66 Mr Blake gave evidence that the tie rods to the end columns were there to provide lateral stability in the horizontal direction (ts 881). The cross-examination based on Mr Welch's sketch continued:

Did it occur to you at all that [if] the bracing, as it had been detailed here, had been reversed so that the central column of the balcony was braced?---Yes, it could've been reversed.

That would have had an effect of preventing any deflection of that column and the beam that it supported?---Yes.

That wasn't something that you gave any attention to?---No, the steel joists are tied back by the timber joists.

Does that mean that you considered that support of the central column?---I can't - you're asking me about the significance of the columns and I was trying to answer that question.

Yes?---I can't remember the details of what were discussed other than that connection. I may've looked at it subconsciously and it just looked - and in my experience said, 'Well, we haven't got a tie there but we've got timbers tying it back'. I may have considered that. I can't remember.

How do you think the joists might tie back?---The joists are fixed to the wall at one end and they're fixed to the beam at the other end. There's a score of them or so. So the force in each member would be fairly insignificant.

Do you know how the joists were to be secured to the plates?---I believe they were half-housed and nailed or fixed in accordance with the code.

...

At the time you were considering this detail with Mr Welch on or about 8 April 1982 you saw there was a note there 'column tied back by joists'?---Yes, that's right. Maybe that's

I'm asking you whether you took that as read or whether you gave consideration to it?---I can't recall giving specific - I can't recall looking at that and thinking there was a problem there.

But you would agree that the way that the bracing is detailed in that report movement of the central column and the ?---Is relying on the timber joists, yes.

There's nothing else to hold it back?---That's correct (ts 882).

Would you accept, looking at the detail now, that what I would suggest as a more prudent way of securing the framework would have been to run the bracing to the central column or have further bracing from the wall plate to the central column?---Yes. It could well have been more prudent. The point was that it says here, 'Tie back by joist' and that's legitimate.

68 The injured claimants referred to expert engineering evidence from Mr John Ryan that there were a number of ways the central column could have been tied back. He gave two examples: two diagonal braces (tie rods) meeting at the central column or a tie rod directly from the central column to the wall plate.

69 Halpern Glick drew the court's attention to expert engineering evidence from Dr Dennis Evans who had made recommendations concerning the reconstruction of the balcony. He proposed the use of hardwood timber and for the joist seating in the supporting plates to be detailed to provide adequate support. He made no provision for bracing.

70 The trial judge's intention is to be gathered from his reasons as a whole, including his causation findings. The trial judge understood the Drexel London design reflected in the Drexel sketch (indirectly) tied the central column to the building. He said:

The central column was tied back to the [south] wall of the building only by the skew nailed joists. The horizontal resistance provided by the skew nails was minimal [66].

71 This observation relates to the balcony 'as constructed' not 'as designed' because the trial judge is here considering the physical cause of the balcony collapse.

72 Accepting the evidence of Mr Phillips that the balcony should have been designed with some degree of redundancy [70], the trial judge concluded that 'a secure means of tying the central column back to the southern wall of the building would have provided the necessary element of redundancy' [71].

73 The trial judge found that even if the joints connecting the joists to their supporting plates had been fully half-housed, the balcony failure would still have occurred [91]. There was no claim (and no expert evidence referred to by the trial judge) attacking the use of skew nails to fix the joists to the plates. Moreover, the method of fixing the joists to the plates was not addressed in drawing 15. It was a missing detail.

74 The trial judge's causation finding was that if the central column had been tied back securely to the southern wall of the building the collapse would have been averted or would have happened much more slowly [84], [92].

75 The trial judge then made a composite finding of causation and defective design. He said a primary cause of the collapse was 'the inadequate design of the southern supporting structure' [94] which I take to be the failure referred to in [71] to securely tie the central column to the southern wall of the building. The only relevant design of this aspect of the balcony was the Drexel sketch on which drawing 15 was based. Thus, there is a prima facie inconsistency between the finding that the Drexel London design which provided for tying back the central column by the joists was inadequate and the finding in [298] that tying back by joists was acceptable.

76 Moreover, there is circularity in the proposition that the necessary redundancy is supplied if the central column is tied back by joists. It was the failure of the joists at the south-east corner that caused the movement of the central column and it was this movement of the central column that contributed to the failure of the remaining joists. The trigger for the initial failure of the joists was the rotting of the plate to which the joists were fixed. The mode of fixing the joists to the plate was not causative. As already noted, the trial judge found that it was appropriate for the joists to be half-housed in the timber plates and the failure of the joists would have occurred even if they had been properly half-housed in accordance with drawing 15. There was no claim or finding that the use of skew nails was inappropriate or that an alternative mode of fixing could have provided the necessary redundancy. The element of redundancy in this case had to be such as to prevent the initial movement of the central column caused by the joist failures attributable to the rotting plate.

77 However, the prima facie inconsistency cannot be resolved by upholding the injured claimants' construction of [298]. The clear language used by the trial judge and his acceptance of the evidence of Mr Welch and Mr Blake make it impossible to conclude that he intended to find that the central column should have been braced by a tie rod or rods to the southern wall of the building. There is no ambiguity in Mr Blake's evidence. He was speaking of two different approaches to securing the central column, being the use of bracing (which would have been more prudent) and by means of the joists (which in his opinion was legitimate).

78 By the same token it is clear the trial judge thought that the design in Mr Welch's sketch (the Welch design) (that the central column be tied back by joists) was materially different from the Drexel London design which he had earlier found to be inadequate. This is confirmed in [248] and [249] in which he addressed the question of breach by Drexel London (when considering breach, the correct focus is on the balcony as designed and when considering causation it is the balcony as constructed). Mr Drexel's position was that if the balcony had been built in jarrah and the connections were correctly done there would have been no real risk of the column moving out (ts 717). The trial judge rejected that proposition with the observation that '[i]t was obvious to Mr Welch [who had plans which specified jarrah and who had no reason to suppose the joists would be cut inaccurately], that the central column should be tied back' [249].

79 Mr Welch's note was not interpreted as descriptive of the existing design but was regarded by the trial judge as serving as advice to Mr Bumstead that the column should be secured in that way, albeit without 'the precise method of linking the joist to the central column' [299]. It is of note that in each of [298] and [299] the trial judge uses the term 'joist' in the singular as if to describe a single structural support. That use, in the context of [297], [298], [299] and [302] supports the view that the trial judge understood the Welch design as involving a direct connection between the central column and the southern wall of the building not the indirect tie back design in the Drexel sketch.

80 However, the trial judge's understanding of the Welch design is inconsistent with the evidence of Mr Blake referred to earlier and that of Mr Welch. Mr Welch gave limited evidence on the subject as follows:

[The central column] was not tied back?---From my notes here, no. It wasn't tied back.

Did that give you any concern at the time?---It wasn't tied back with steel at the time. I have a note here saying, 'Col tied back by joists'. I obviously realised that it needed to be tied back. Hence the note.

Did you have any expertise which would enable you to form an opinion as to what support the joists would give the column?---No. I would have gone back and discussed that with the engineer (ts 906).

81 Mr Welch said drawing 15 described the tie rod configuration he saw on 8 April 1982 (ts 906) and that he discussed his site minute with Mr Blake (ts 900) who at trial had no recollection of any discussion as to the tie back of the central column. Mr Welch was not asked what he meant by 'Col tied back by joists'. It was not put to Mr Welch that he had assumed responsibility for providing an additional means of securing the central column to the southern wall beyond that reflected in drawing 15

82 I agree with the injured claimants, Drexel London and Halpern Glick that Mr Welch's sketch contains the same design for tying back the central column as the Drexel sketch on which drawing 15 was based. However, the trial judge found that design lacked an appropriate degree of redundancy. The grounds of appeal must be determined on this basis.

Injured claimants' application to amend ground 4

83 Halpern Glick objects to the proposed amendment to ground 4 on multiple grounds. It contends the proposed amendment and supporting written submissions are unacceptably vague and raise issues which are either (or both) outside the pleaded case or were not litigated. If the proposed amendment asserts a negligent failure by Halpern Glick in April 1982 to advise of an acceptable tie back method, Halpern Glick says that case was not pleaded against it and if it had been pleaded, would have been defended on the basis that the claim was statute-barred. It also contends that the proposed claim is contrary to the unchallenged finding at [298]. If the proposed amendment asserts a negligent failure to provide the detail as to how the central column was to be tied back by joists, Halpern Glick contends that the claim is contrary to the unchallenged finding at [302] and was neither pleaded nor litigated. If pleaded, the claim would also have been the subject of a limitation defence.

84 The Supreme Court (Court of Appeal) Rules 2005 (WA) require an appellant to state the grounds of appeal, and concise particulars of them, succinctly (r 32(4)(b)). Ground 4 as it currently stands does not comply with this rule. When regard is had to the written submissions on the existing ground, the sole challenge is to the trial judge's failure to find that Halpern Glick provided the structural information obtained by Drexel London for the purpose of preparing the March 1981 drawings, including drawing 15.

85 The proposed amendment to ground 4 is also unacceptably general. Additionally, the written submissions fall short of clearly identifying the alleged error they seek to challenge. The best that can be gleaned is that the injured claimants seek a finding that in April 1982 Halpern Glick negligently failed to identify and, I infer, advise Lavender Bay that the design of the balcony failed to provide adequate or sufficient bracing to stabilise the central column. These problems at the appellate stage are no doubt a consequence of the generality of the injured claimants' statement of claim. Halpern Glick's objection based on the scope of the pleading is the foundation for any limitation defence. Halpern Glick was first joined to the proceedings as a defendant to a fourth party claim made by Drexel London. Subsequently, the injured claimants joined Halpern Glick as a defendant in the main action.

86 Prior to trial, Drexel London's claim against Halpern Glick was confined to an allegation of negligence in advising Drexel London in the period December 1980 to May 1981, which advice was said to be recorded in drawing 15. At the commencement of the trial on 6 November 2006, Drexel London sought and obtained leave to amend its statement of claim to include an allegation of negligence based on the provision of structural advice to Lavender Bay on 8 April 1982 in relation to securing the balcony (ts 110 - 129). The alleged breach was Halpern Glick's failure to inform Lavender Bay of the fact and consequence of failing to tie back the central column to the southern wall of the building.

87 The injured claimants did not apply to amend their statement of claim. They took the position that their pleading was wide enough to encompass a negligent omission in April 1982 of the nature alleged by Drexel London (ts 1089). They conducted their case on that basis. Halpern Glick repeatedly objected to what it claimed were departures by the injured claimants from their pleaded case (ts 117, 884 and 1033).

88 The injured claimants' statement of claim at the time of trial provides:

1. [Halpern Glick] provided structural advice to [Drexel London] in relation to the development of the Building.
2. [Halpern Glick], or one of its employees or agents suggested or considered the designs of [Drexel London] as pleaded in paragraph 50(b), (c) and (d).

54A. In providing such structural advice and in suggesting, or considering, the designs as pleaded in paragraphs 53 and 54 respectively above, [Halpern Glick] was under a duty to act with all reasonable professional skill, care and diligence.

54B. The duty pleaded in paragraph 54A above was owed to a person or persons such as the plaintiff who could reasonably have been expected to use the Building in the ordinary way associated with the purpose for which it was designed, namely residential apartments.

1. The Collapse and the plaintiffs subsequent injuries were caused or contributed to by the negligence of [Halpern Glick]

PARTICULARS OF NEGLIGENCE

[Halpern Glick] was negligent in that it failed to identify:

(a) that the design of the detailing was such that moisture could be trapped both in the housed joint and between the steel support beam and the timber Plates;

(b) the design of the Balcony failed to provide for stabilising bracing of the central column of the Balcony.

89 Paragraph 50 pleads that the specifications (defined to include the plans which includes the drawings) relevantly provided:

(b) the detail of the design of the wood and steel interface between the Plates and the steel frame;

(c) the detail of the design of the half-housing interface between the joists and the face and wall Plates; and

(d) how the Balcony was to be braced, supported and attached to the wall of the building.

90 Paragraph 54 includes a plea that one of Halpern Glick's employees or agents considered Drexel London's designs, which includes a reference to the drawings and drawing 15 in particular. That plea goes beyond providing structural advice or suggestions to Drexel London for incorporation into the design, in which event there is no basis to construe par 53 as controlling or limiting the scope of the balance of the pleading. The pleading is drafted in such general terms as to be wide enough to permit the injured claimants to rely upon the events in April 1982 as giving rise to a negligent omission to advise of the design defect in the balcony. Accordingly, no limitation issue arises.

91 Thus, the proposed amendment is consistent with the pleading and the case conducted by the injured claimants (and by Drexel London in its contribution proceedings) against Halpern Glick. Having regard to my conclusion as to what the trial judge intended in [298], it is in the interests of justice that the injured claimants be permitted to challenge the correctness of the findings at [298] and [302]. Such a challenge is implicit in the proposed amended ground for which I would grant leave.

92 I propose to address all grounds of appeal affecting Halpern Glick before dealing with Drexel London's other grounds of appeal.

Source of structural information in drawing 15 (Drexel London's ground 6; injured claimants' ground 2)

93 Drexel London claims in ground 6 that the trial judge erred in failing to find that the structural information contained in drawing 15 was derived from Halpern Glick. This ground is not expressly relied on as the basis for a further finding that Halpern Glick was negligent.

94 The injured claimants claim in ground 2 the trial judge erred in failing to find that Drexel London obtained structural advice with respect to the design of the balconies from an engineer at Halpern Glick and that such advice was negligent.

95 The trial judge found that Mr Drexel obtained the structural information contained in drawing 15 from an engineer [152]. Although the trial judge accepted that Mr Drexel believed he obtained the structural advice from Halpern Glick, he was not persuaded as to the correctness of that belief [153], [168].

96 Mr Drexel's evidence-in-chief is to the following effect. He obtained the engineering information contained in drawing 15 from Halpern Glick. He engaged in discussions with an engineer at Halpern Glick in order to obtain advice as to the structure and configuration of the balcony, and to the best of his recollection, that engineer was Mr Peter Lemish. In cross-examination, Mr Drexel said he remembered clearly going to see someone in Halpern Glick's office 'and sitting at a table and asking questions and noting down the responses' [133]. In the end his evidence was that he did not know whether he spoke to Mr Lemish; he might have done so but could not remember who it was he spoke to at Halpern Glick [135].

97 Mr Graham Glick was the principal engineer directly responsible for the project. Mr Drexel doubted that he obtained the information from Mr Glick because he knew him [163]. Mr Glick was not asked whether he had given the information to Mr Drexel.

98 Mr Lemish was at the material time a relatively inexperienced engineer working under the supervision of Mr Jack Scott at Halpern Glick and was involved in aspects of the engineering design for the conversion of the Old Soap Factory. Mr Lemish said he did not provide any input into the details shown in drawing 15. He said if he had been asked to consider the design of the balconies he would have completed an initial project data sheet recording receipt of instructions and performed calculations [140]. In particular, he would not have been able to specify the size and details of the footings, steel members, bracing and fixing details without calculating the relevant loads or forces on the members [143]. Mr Lemish did not complete any document recording the receipt of instructions and there was no evidence that any calculation sheets were produced by any employee of Halpern Glick in relation to the balconies [144].

99 In the end, Mr Lemish's evidence was that it was unlikely he had provided the engineering details to Mr Drexel but he could say only that he had no recollection of the meeting of which Mr Drexel gave evidence [147]. The trial judge accepted Mr Lemish's evidence that it was unlikely he was the source of the structural information [153].

100 The trial judge doubted whether anyone at Halpern Glick would provide details to Mr Drexel without first calculating the relevant loads because he accepted the evidence of Mr Blake on that subject [145]. Mr Blake said that given the size and exposed position of the Old Soap Factory, it would be necessary to undertake the relevant calculations which would take a few hours. He said there were circumstances in which an engineer might use judgment but he was certain that in the circumstances of this case it would not have happened [145].

101 The trial judge also accepted Mr Blake's evidence that he had no recollection of any involvement with the structural aspects of the balcony design [154] and Mr Scott's evidence that he did not design the balconies or provide any suggestions for their design [155].

102 The trial judge placed no weight on Mr Drexel's evidence that the structural information came from Halpern Glick [169] because of his assessment that Mr Drexel had very little recollection of the events in question, his impression that the documents put to Mr Drexel did not refresh his memory but prompted an interpretation, Mr Drexel's change of position on Mr Lemish and his evidence, found to be mistaken, that he had never stood on the balconies [166], [167].

103 The trial judge relied on a number of other indicators. First, Mr Welch was surprised to learn that steel he saw on site was intended for the construction of the balconies. The trial judge said he was satisfied that if Halpern Glick had been involved in the design of the balconies, Mr Welch would have been aware of that fact before he saw the fabricated steel [156].

104 Secondly, if it was Mr Drexel's intention to have Halpern Glick provide a structural design for the balconies, it is likely that some mention would have been made of that in his correspondence to Halpern Glick in December 1980, at which time the balconies were being developed [157]. Thirdly, the trial judge regarded Mr Drexel's evidence that he did not feel it necessary to have Halpern Glick carry out the kinds of engineering calculations done in relation to other aspects of the work as supporting the view that Mr Drexel had obtained the information contained in drawing 15 before he went to Halpern Glick [158].

105 In my assessment, the established facts, objective probabilities and logic strongly favour a finding that the structural information in drawing 15 was provided by Halpern Glick. Halpern Glick was retained to provide engineering services for the project by 4 December 1980. It provided such services in the period leading up to the production of the drawings by Drexel London in March 1981. Mr Drexel obtained the structural information relating to the balconies from an engineer for use in the preparation of drawing 15. During the period from the appointment of Drexel London as architect for the project from around October 1980 until the production of the March 1981 drawings, there is no evidence of the involvement of any other engineer in the project. A project architect would be expected to seek structural advice from the project engineer. Indeed, Halpern Glick was retained on the recommendation of Mr Drexel [122].

106 The letter to which the trial judge referred at [130], being the letter of retainer of 7 December 1980, did not and would not be expected to identify all matters on which the engineer would be asked to provide advice. So much is apparent from a list prepared by Mr London identifying the many matters on which engineering advice would be required for the project (exhibit 1/1308 - 1310). The list includes 'DECK STRUCTURE- SIZES AND BRACING AND FIXING OF STEEL AND TIMBER' (par 42 exhibit 42).

107 The undated site minute in which the design of the balconies is attributed to Halpern Glick was made in April 1982 some 24 years prior to trial. The failure to call the minute taker can have no material effect on the weight to be given to the business record. Mr Drexel was present at the meeting and he could be expected to know and remember at that time who supplied the structural information.

108 Moreover, the undated minute is consistent with the minutes on 7 April 1982 which record that Halpern Glick was to liaise closely with Phillips Engineering on tying and bolting the balconies to the existing building, and with Mr Welch's involvement on 8 April 1982. It is also relevant that Mr Welch's sketch is on all fours with the design in the Drexel sketch.

109 Mr Welch's evidence is consistent with Halpern Glick having prior involvement in providing structural information for the balconies:

Was it apparent to you when you were asked by Mr Bumstead to consider the situation with the wall plate that this steel structure hadn't been the subject of any previous engineering advice by Halpern Glick?---I think by that stage somebody had told me that we were to be involved with it. I can't recall that. I would've made a lot more noise or reported a lot more extensively if I hadn't been satisfied that there was some involvement with the [steel] structure.

I don't quite understand that answer?---Okay.

What would you have done if things had been different?---If this steel structure had not been somehow approved or - how can I explain - if the structure was totally out of my scope or knowledge I would've put a lot more information on this site report, questioning it where it came from. By this time I recall having discussed the steel structure in-house back at the office. Who I discussed that with and to the extent of the discussions I can't recall but I would've been writing here a non-compliance steel structure had been erected and that it needed further investigation or words to that effect. I wouldn't have just tried to make something on site work. It's not the way I operate.

...

Do you recall having occasion to think, 'How come I haven't seen any drawings for this structure'?---That would have occurred when the steel first appeared on site.

Did you ask anyone about that?---And I would have asked back then. I did ask. I recall asking - certainly I asked people on site where it had come from because it wasn't on any of the drawings that I was carrying and that's when I was directed to the architect's drawings as a reference and I recall from that that I went back to the office and discussed it with somebody back at the office. I can't recall exactly what was decided but I would suggest that it must have been approved in some manner because it wasn't pulled down or there was no other documentation given to me to qualify it (ts 904). (emphasis added).

110 When asked about his sketch of 8 April 1982 Mr Welch said:

With the design of the connections and what have it, I would've taken this back to the office and got it approved at the office either by Peter Blake or Jack Scott or another engineer (ts 900). (emphasis added)

111 Unsurprisingly given the events occurred some 25 years before trial, the engineers from Halpern Glick (Messrs Lemish, Blake and Scott) were not able to affirmatively deny by way of recollection that the structural information was obtained from Halpern Glick. In any event, it is apparent from Mr Welch's evidence that other engineers from Halpern Glick provided advice on matters relating to the project.

112 A matter weighing against acceptance by the trial judge of Mr Drexel's evidence was the absence of a record of structural calculations in Halpern Glick's possession relating to the balconies, from which he inferred none were done. The evidence establishes that the structural information for the balcony was requested and provided informally to Mr Drexel. The only written record of, and relating to, the information is that recorded by Mr Drexel in his notes of what he was told by the engineer. The advice was neither requested nor confirmed in writing. The lack of formality suggests the engineer who supplied the information took a different view than the trial judge as to the need for lengthy calculations.

113 That different view is consistent with Mr Drexel's evidence that he did not feel it was necessary for the engineer to do the sorts of engineering calculations that Halpern Glick did on other structural work undertaken at Drexel London's request prior to the production of the March 1981 drawings [158]. Mr Drexel was a long-time consumer of engineering services with both training and experience in structural matters. He later made his own judgment call on a number of matters on which the engineer had advised in relation to the balconies. The absence of the sort of engineering calculations and structural drawings otherwise done by Halpern Glick is consistent with the surrounding circumstances. Further, the informality could explain why Mr Welch, the site inspector, was unaware of Halpern Glick's involvement until the delivery of the steel for the balcony.

114 A finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are even strongly against the finding of fact: Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167.

115 If the estimate of the trial judge of a witness forms any substantial part of the judge's reasons for a finding of fact, an appellate court cannot interfere unless it can be shown that the judge has failed to use or has misused his or her advantage or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable or that the finding of fact is affected by an identified error of principle or demonstrated mistake or misapprehension about relevant facts: Devries v Australian National Railways Commission (1993) 177 CLR 472, 479; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434.

116 In this context, credibility covers all matters personal to the witness including their honesty and reliability. The trial judge accepted Mr Drexel's honesty but doubted his reliability to such an extent he was not prepared to give his evidence any weight. That conclusion was based on the trial judge's observation and impression of Mr Drexel as a witness and that assessment formed an important part of the trial judge's reasons.

117 The trial judge did not make a negative finding that Mr Drexel did not obtain the structural information from Halpern Glick. The trial judge simply declined to make a positive finding that he did obtain it from Halpern Glick on the basis that Drexel London and the injured claimants had not discharged their onus [168]. However, the principles applicable to a finding of fact are equally applicable in those circumstances: Rosenberg v Percival [17], [27], [92]; Fractionated Cane Technology Ltd v Ruiz-Avila [1988] 2 Qd R 610.

118 In my assessment, the trial judge's failure to make a positive finding as to Halpern Glick's involvement is materially affected by his misunderstanding of the evidence of Mr Blake and Mr Welch as to what they meant by tied back by joists, its correlation with the Drexel London design and the lack of calculations associated with the approval of Mr Welch's sketch. That failure entitles this court to intervene. The established facts, objective probabilities and logic favour acceptance of Mr Drexel's evidence that the structural information for the balconies was provided by Halpern Glick.

119 For these reasons I would uphold ground 6 of the Drexel London appeal and ground 2 of the injured claimants appeal.

Halpern Glick's failure to identify design breach - redundancy (injured claimants' ground 4 as amended)

120 The injured claimants seek a finding that in April 1982 Halpern Glick negligently failed to identify that the design of the balcony failed to provide adequate bracing of the central column.

121 The relevant legal principles are not in dispute. An engineer owes a duty to exercise reasonable care and skill in the provision of professional services. The duty is owed not only to the client but to other classes of persons who might foreseeably suffer injury as a result of the failure to exercise reasonable care. The terms of the contract of retainer between the engineer and its client are relevant to, but not necessarily determinative of, the scope of the engineer's tortious duties. In Voli v Inglewood Shire Council [1963] HCA 15; (1963) 110 CLR 74, Windeyer J (with whom Dixon CJ and Owen J agreed) said in a case involving the collapse of a stage in a hall, the plans and specifications of which had been designed by an architect:

First, 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. If, for example, it was to design a stage to bear only some specified weight, he would not be liable for the consequences of someone thereafter negligently permitting a greater weight to be put upon it (85).

122 The focus must be on the responsibilities actually assumed by the engineer not just those cast upon him or her by the terms of the contract: Bryan v Maloney (1995) 182 CLR 609, 619 - 620; Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180, 228; Bailey v Redebi Pty Ltd [1999] NSWSC 918; (1999) Aust Torts Reports 81-523 [45].

123 As to the standard of care, architects and engineers are required to exercise the care and skill usual among architects and engineers practising their profession: Voli (84).

124 This ground of appeal has to be considered against the unchallenged findings of the trial judge that Halpern Glick did not have a general retainer but was appointed as a consultant to be called upon as and when its services were required [296], was not asked to check the balcony drawings or (with one exception) to provide any of the missing details [175], and had no input into the shop drawings for the balconies [195].

125 However, the trial judge found that Mr Welch attended at site on 8 April 1982 as a result of the decision recorded in the minutes of 7 April 1982 to the effect that Halpern Glick and Phillips Engineering were to liaise closely on tying and bolting the balconies back to the existing building to ensure permanent security [194]. Further, the trial judge accepted Mr Welch's evidence generally. It is apparent from his evidence detailed earlier that Halpern Glick assumed responsibility for considering and advising on the adequacy of the design of the restraint of the central column [192].

126 Mr Welch had attended on site on 8 April 1982 to address a difficulty being experienced in securing the horizontal bracing to the brick wall. At that time he noticed there was no system for attaching the returns of the steel beams from the eastern and western sides of the balconies. He provided that missing detail. He also noted that the central column was not tied back with steel rods but was to be tied back by the joists. He did not have the expertise to form an opinion as to the suitability of that course, which he discussed with an engineer at Halpern Glick, who he identified as Mr Blake (ts 900, 906). The only available inference is that that method of tying back the central column by joists was deemed suitable. That inference is supported by the evidence of Mr Blake himself who described tying back the central column by joists as legitimate (ts 884). Halpern Glick did not advise Lavender Bay that the design was deficient in failing to adequately secure the central column.

127 Having assumed responsibility for considering and advising on the adequacy of the restraint of the central column, it necessarily follows from the trial judge's unchallenged finding that the design was deficient that Halpern Glick was negligent in failing to advise that the design did not incorporate an appropriate degree of redundancy. I would uphold ground 4.

Drexel London's design breach - redundancy (Drexel London's ground 1)

128 The submissions put on behalf of Drexel London contain two assumptions. First, that drawing 15 made a positive statement about the design of the balconies and the absence of bracing or other similar mechanism was not a missing detail. Secondly, that Mr Welch's advice to Mr Bumstead that the central column was to be tied back by joists was the same as the Drexel London design and that design was capable of providing the necessary degree of redundancy if properly implemented. For the reasons given earlier, the second assumption is erroneous. However, the second assumption is not essential to this ground of appeal.

129 The evidence established the following. Structural information for the balcony design was provided to Drexel London by an engineer from Halpern Glick. That structural information included the bracing configuration which did not incorporate a restraint on the central column. The design of the balcony in drawing 15, insofar as it relates to the structural stability of the central column, incorporated the structural information from the engineer.

130 Independent expert architectural evidence was not adduced as to the care and skill usual among architects practising in their profession. However, that is not determinative: Florida Hotels Pty Ltd v Mayo [1965] HCA 26; (1965) 113 CLR 588, 601; Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479. Mr Phillips, who gave evidence that all structures should be designed with some degree of redundancy, was a structural engineer of 30 years' experience who specialised in timber structures. The trial judge accepted that evidence from which he concluded that an architect is negligent if his design does not incorporate an appropriate degree of redundancy [246]. That is, the trial judge found that the architect was negligent in incorporating into his architectural design structural engineering information obtained from an engineer.

131 The trial judge accepted Mr London's evidence that 'the information falls outside an architect's skill base' [152]. It is unclear from the context whether the trial judge is referring to all the structural information obtained from the engineer or just the detailed structural information provided, such as the detailed code numbers for the trubolts and the bolts holding down the column base plates. I am inclined to the view that it is the latter for two reasons.

132 First, the trial judge did not dismiss Mr Drexel's opinion as to the adequacy of the Drexel London design for stabilising the central column on the basis that it was outside his skill base. Secondly, Mr Drexel had both training and experience in structural matters. Mr Drexel's evidence was that Drexel London came up with the design for the balconies and all it wanted was for Halpern Glick to help it size and check elements. He felt it was unnecessary for the engineer to do engineering calculations and engineering drawings in order to design a structurally sound balcony (ts 609 - 610).

133 When Mr Drexel was questioned about the appropriateness of altering the engineering information, he said:

Oh, my goodness. I might remind you that when I was a student of architecture we actually spent four years of fairly heavy structural studies. We then had to practice with architects for a number of years before we could actually call ourselves architects. I would argue that I had a fairly sound idea of what was needed by the very basis of designing those balconies which were then sized by Halpern Glick (ts 610).

134 I refer to this evidence not because it alters the standard of care owed by Drexel London but to demonstrate that Mr Drexel relied on his own structural knowledge in designing the balcony and (properly in my view) in evaluating the structural information supplied by the engineer. As in so many professions, there is frequently an overlap of skills and experience rather than separate silos of stand-alone expertise (see Strempel v Wood [2005] WASCA 163).

135 Thus, the evidence establishes that, apart from the sizing of the structural elements, Mr Drexel requested the engineer to provide a 'check' function of his design. That is consistent with the fact that the engineering advice was neither requested nor confirmed in writing and with the absence of engineering calculations and structural drawings. Mr Drexel's judgment on structural matters impacted on the nature and extent of the input he sought from the engineer. Mr Drexel was and remained of the view that the balcony design was not defective.

136 The facts establish that the architect and the engineer assumed shared responsibility for the structural design aspects relating to the stabilisation of the central column. I do not accept the correctness of the trial judge's characterisation of Drexel London's breach as based on the firm putting forward the engineer's design as its own. That approach has overtones of the adoption of a negligent misstatement made by a third party, a cause of action neither pleaded nor litigated. I would dismiss this ground.

Halpern Glick's duty of care and breach (Halpern Glick's notices of contention in Drexel London and injured claimants appeal)

137 Halpern Glick contended in the Drexel London appeal and in the injured claimants appeal that if the court finds it provided the structural information incorporated into drawing 15, it should be further found that it owed no duty of care in providing the information or alternatively, that it discharged its duty. I have concluded that Halpern Glick and Drexel London shared responsibility for relevant structural aspects of the balcony design. Halpern Glick was the structural engineer for the project and was acting in that capacity when conferring with Drexel London on the design of the balcony. It supplied structural information relating to the means of tying back the steel columns, including the central column of the balconies. The clear inference is that the engineer consulted by Mr Drexel agreed with his assessment that engineering calculations and drawings were unnecessary. This is consistent with Mr Blake's preparedness to express an opinion on the legitimacy of tying back the central column by the joists. I am satisfied that Halpern Glick owed a duty of care to Lavender Bay in these circumstances.

138 The alternative claim of discharge of duty must also be dismissed because it is based on the rejected assumption that the Drexel London design was capable of providing the necessary degree of redundancy if the joists were properly fixed to the plates. I would dismiss the notices of contention.

Inconsistent treatment of Drexel London and Halpern Glick (Drexel London's ground 5)

139 The success of this ground is also dependent on the correctness of the second assumption set out at [128] above. That assumption is erroneous as a result of which Halpern Glick has been found to be negligent. Ground 5 must fail.

Whether Drexel London observed the oregon timber (Drexel London's ground 3)

140 Drexel London contends the trial judge erred in finding that Mr Drexel and/or Mr London actually observed that oregon had been substituted for jarrah in the joists and plates. It is also contended that procedural fairness precluded the finding because that case was not pleaded against Drexel London.

141 At the end of June 1982 Mr Drexel and Mr London were asked by Lavender Bay to prepare a list of items to be rectified and completed. The compilation commenced at the end of June 1982. A list was prepared as a result of inspections carried out by both Mr Drexel and Mr London over a lengthy number of visits. The list made no mention that oregon had been used in the construction of the balconies instead of jarrah. The list states:

These notes cover items relating to construction and finishes only. All structural items are to be checked by Halpern and Glick [sic].

142 Numerous external aspects of the building were inspected. However, both Mr Drexel and Mr London gave evidence that they had not gone onto the balconies during the course of the inspections. That evidence was inconsistent with information provided by Drexel London's solicitors in October 1988 which was to the effect that Mr Drexel and Mr London had been on the balconies from time to time. The trial judge found that to be the case [212].

143 One of the entries in the list of items to be rectified relates to the upper balcony level (level 4) of what became known as unit 4 (not the unit where the balcony failed) which records:

144 The trial judge said the record suggested the author of that note had looked at the timber and steel framing supporting the pergola above the balcony at level 4 [217]. The trial judge concluded:

In my view, whether it was Mr Drexel or Mr London who looked at the steel and timber framing and noticed that the bolts were missing, he must have seen that the timber was oregon and not jarrah. As Professor London accepted in cross-examination, distinguishing between oregon and jarrah 'is as involved as differentiating between red wine and white' ... Mr Drexel ... accepted that it would have been fairly easy to differentiate or distinguish between oregon and Jarrah 'if he had been looking for that' [223].

145 When considering the difference between oregon and jarrah, the trial judge said it was well illustrated by reference to a photograph taken by Dr Evans (in 1997) of the timber and steel framing at the lower balcony level of unit 4. I doubt that weathered timber in a different location would be of any assistance in identifying the difference between freshly cut oregon and jarrah.

146 Both Mr Drexel and Mr London gave evidence that they did not know oregon had been substituted for jarrah in the balconies. The trial judge summarised their evidence as being that if they had known of the use of oregon instead of jarrah they would have noted it in the list [227]. The trial judge continued:

While this is no doubt a rational approach, I do not accept it as an accurate recollection of the events of 25 years ago. To the contrary, the evidence to which I have referred above, leads me to the conclusion, on the balance of probabilities, that Professor London and Mr Drexel did see that oregon had been used in the construction of the balconies but, for some reason, did not record that fact.

There is the hint of an explanation in the evidence of Mr Drexel that 'there was a little bit of friction occasionally and towards the end' [228] - [229].

147 He also referred to Mr London's evidence that the balconies were constructed during a period when the whole project had reached a state of some unpleasantries [230].

148 Drexel London had recommended in writing to Lavender Bay on three occasions (22 October 1982, 1 December 1982 and 4 August 1983) that Halpern Glick be commissioned to carry out a comprehensive inspection of all structural aspects of the project to ensure the work had been carried out to its satisfaction. The recommendation was not acted on.

149 As to the content of Drexel London's duty of care, the trial judge held that it was required to monitor the progress of the work as far as was reasonable in the course of the weekly site visits and, at the very least, to advise its client if it became aware of any defective workmanship [285]. He continued:

The request to Drexel London in June 1982, to provide a list of items to be rectified and completed, must have involved a detailed inspection of the works. In other words, if there were obvious structural defects to be observed, Mr Drexel and, or alternatively, Mr London, should have seen them. It follows, in my view, that because Drexel London had, at least, a professional obligation to report non-complying work to their client, they must be regarded as negligent if they either failed to report non-compliant work they had actually observed, or if they failed to observe non-compliant work, which should have been obvious to them in the course of their comprehensive inspection, during which, as I have found, they stood on the various balconies [287].

150 Thus, the trial judge concluded that the duty to advise Lavender Bay arose if Mr Drexel or Mr London had actually observed that the joists and plates were oregon rather than jarrah or if that should have been obvious to them in the course of their comprehensive inspection.

151 The trial judge found in effect that either Mr Drexel or Mr London knew (was consciously aware) that oregon had been substituted for jarrah in the joists and plates and did not include it in the list of defects or do anything else about it. That is a very serious finding against professionals who knew that oregon was structurally unsuitable for the balcony. Indeed, the observations in [229] - [230] imply that a deliberate decision may have been made not to note in the list the substitution of oregon for specified jarrah.

152 In my view, the evidence is not capable of supporting a positive finding that Mr Drexel and Mr London actually observed that oregon was used in place of jarrah in the construction of the balconies. The trial judge accepted that Mr London gave his evidence honestly and made no adverse finding as to Mr Drexel's honesty. The trial judge summarised their evidence as being that if they had known of the use of oregon instead of jarrah they would have included that in the list [227].

153 That is not a fair or accurate summation of the substance of their evidence. Mr London said if he had seen that oregon had been used he would have referred it to the engineers and the owners and would have done something about it [225]. Mr Drexel said that he would have raised the matter immediately as to why the substitution occurred and what was going to be done about it [226]. The substance of their evidence was that this was such a significant defect as to require positive action beyond merely including it in the list of defects. The trial judge said this evidence was reconstruction [227]. After 25 years that is likely to be so. However, it is consistent with the objective probabilities having regard to their knowledge that oregon was structurally unsuitable. Indeed, the trial judge when considering causation appears to accept Mr Drexel's evidence that had he known of the substitution of oregon for jarrah he would have told his client that the City should be made aware of the change 'and then I probably would have gone away and thought about how to take it on from there' [288].

154 Moreover, there was no proper basis to suggest that Mr Drexel or Mr London had or may have had a motive for deliberately ignoring what they had seen. The hint of the explanation referred to by the trial judge in [229] and [230] was not put to Mr Drexel or Mr London in cross-examination.

155 The primary basis for the finding of actual knowledge is the note in the list relating to missing bolts to the steel and timber framing. However, seeing missing bolts to the steel and timber framing supporting the pergola above the balcony at level 4 is an inadequate foundation for concluding conscious awareness that oregon was used in the joists and supporting plates underneath the decking on which the inspection of the pergola occurred and in the joists and plates of the other balconies. The fact that Mr Drexel and Mr London had been on the balconies from time to time during the course of their inspections does not itself justify an inference of actual knowledge of the substitution of oregon for jarrah where specified for the balconies.

156 The evidence is not of sufficient cogency to discharge the onus of proving actual knowledge. Indeed, the injured claimants did not rely on actual knowledge in their pleading. The pleading was to the effect that Drexel London failed to properly monitor, inspect and supervise the progress of the work and if it had done so, it would reasonably have known that oregon was substituted for jarrah in the construction of the balcony (par 52(a) of the re-amended substituted statement of claim). In view of my conclusion that the finding of actual knowledge was not open, it is unnecessary to determine whether the issue was litigated at trial, in which event the gap in the pleading would not be determinative: Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491.

157 That is not the end of the matter. The trial judge also found that Drexel London had a duty to report non-compliant work 'which should have been obvious to them in the course of their comprehensive inspection' [287].

158 In the course of oral submissions, senior counsel for the injured claimants submitted there was a separate contract by which the architects were required to inspect the building and check for compliance with specifications and drawings. Such a contract was not pleaded. The only contract pleaded was one made in about October 1980 between Lavender Bay and Drexel London (par 46 of the re-amended substituted statement of claim). However, the injured claimants did plead that Drexel London was under a duty to 'compile lists of defects and lists of respects in which the Construction Work did not conform to the Specifications' (par 51(g)). The trial judge did not find a duty in those terms. Indeed, such a finding is inconsistent with his express finding that Drexel London had no contractual obligation in relation to contract administration or supervision [284] save to the limited extent identified in [285] set out above. Even if the pleaded duty is not inconsistent with the trial judge's findings, there is no notice of contention seeking a finding in terms of par 51(g) of the statement of claim. As such a finding is not the subject of a cross-appeal or notice of contention it cannot now be raised.

159 The central question is whether Drexel London assumed responsibility for a task that encompassed non-compliant work of the type in question. The task was expressly confined to 'construction and finishes only' and excluded structural items. The trial judge did not make any express findings about the scope of Drexel London's inspection task, whether the use of oregon in the joists and plates fell within the exclusion of structural items, or whether Drexel London should have known of the use of oregon in the joists and plates of the balcony. However, the clear implication in [287] is that the trial judge had concluded that the assigned task excluded structural items, that the use of oregon in the balcony joists and plates was a structural defect and that the defect was obvious and should have been seen by the architects.

160 In oral submissions the injured claimants submitted the trial judge should have found that the use of oregon in the joists and plates was a carpentry matter and thus a construction item falling within the scope of the task assumed by the architects. That is a matter which should have been, but was not, the subject of a notice of contention. There was no application to amend the notice. It cannot now be pursued.

161 The second limb of the trial judge's finding is in substance that the comprehensive inspection required to perform the task undertaken by Drexel London in preparing the list should have resulted in the identification of the obvious structural defect being the substitution of oregon for jarrah. Thus, the trial judge would ground liability on the basis of what Drexel London ought reasonably to have known. That is an error. The duty assumed by the architect was to advise the owner of defects and omissions on matters of construction and finishes of which it knew or ought to have known. The extended duty outside the scope of construction and finishes can only apply to matters of which it is aware. That being the case, there is no legal (cf factual) causation between the breach and the loss. I would uphold ground 3. Accordingly, the finding that Drexel London was negligent in failing to inform Lavender Bay of the specified matters should be set aside.

Causation - knowledge of oregon and loss (Drexel London's ground 2)

162 Drexel London claims the trial judge erred in finding a causal connection between its conduct in failing to inform Lavender Bay of the substitution of oregon for jarrah and the injuries suffered by the injured claimants.

163 The trial judge addressed the issue of causation in [288]. He said:

I have already found, by inference, that the instruction to use oregon in the construction of the balconies must have been given by Lavender Bay. In those circumstances, it might be argued that it would have been pointless for Drexel London to have drawn the attention of Lavender Bay to a matter about which it was well aware. However, the obligation would, I think, have extended to advice that this was a structural change which required the approval of the local authority. Indeed, Mr Drexel said that had he known of the substitution of oregon for jarrah, he would have told his client that the Fremantle Council should have been made aware of the change 'and then I probably would have gone away and thought about how to take it on from there'.

164 The trial judge had earlier found that the substitution of oregon for jarrah was on the instructions of Lavender Bay without the knowledge of Drexel London and that Mr Bumstead, who was employed by Lavender Bay, was a competent builder who would have known that oregon was not suitable as a structural timber for exterior use.

165 The uncontradicted evidence of Mr Drexel and Mr London was that Lavender Bay was experiencing financial difficulties towards the end of the project (par 76 exhibit 38; ts 762).

166 The injured claimants' pleaded case was that Drexel London was required to bring details of any defective work and materials to the attention of Lavender Bay. The trial judge concluded that, in addition to bringing the matter to Lavender Bay's attention, Drexel London should also have advised the owner-builder that the substitution of oregon for jarrah was a structural change which required the City's approval [288].

167 Drexel London claims the trial judge failed to direct his attention to what would have occurred if Drexel London had complied with its obligation and if that question had been addressed, he would and should have concluded that the injured claimants failed to prove on the balance of probabilities that the work would have been made compliant with the drawings and specifications.

168 The injured claimants contend there was no evidence that Lavender Bay knew that oregon was unsuitable for use in the balconies. That is not correct. The knowledge of Mr Bumstead can be taken to be the knowledge of Lavender Bay. Moreover, the only reasonable inference is that a competent builder would know that jarrah was specified in the approved drawings and that the substitution of oregon was such a significant departure from those drawings that it would have to be referred to the City for its approval.

169 The injured claimants also contend the evidence established that Drexel London would have advised the City that oregon had been used and was unsuitable. There was no finding by the trial judge that Mr Drexel himself would (or should) have disclosed the substitution to the local authority or that he would or should have advised Lavender Bay that he may do so. The evidence goes no higher than that Drexel London would have considered notifying the City.

170 The injured claimants rely on Gaudron J's statement of principle in Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 that:

[G]enerally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury (420 - 421).

171 The legal burden of proving causation remains on the plaintiff. The evidential burden referred to by Gaudron J is satisfied by the defendant adducing evidence which, if accepted, is capable of establishing on the balance of probabilities that the injury would have occurred even if the duty had been performed: Amaca Pty Ltd v Hannell [2007] WASCA 158 [395] - [396].

172 Gaudron J's statement of principle in Bennett recognises the link between a negligent breach of duty and causation. She identified two aspects to the question of causation, the first being the general sufficiency of the duty to avert or prevent harm of the kind in issue. It is the general sufficiency of the duty that is relevant to identifying the content of the duty of care. Gaudron J said:

Thus, questions of the sufficiency of the precaution to avert the harm are inevitably subsumed in the finding that there was a duty: a precaution is not classified as 'reasonable' unless it can be said that its performance would, in the ordinary course of events, avert the risk that called it into existence (422).

173 The second aspect of causation involves consideration of what would or would not have happened in the particular circumstances of the case. We are here concerned with the second question.

174 Lavender Bay was already aware of all relevant matters of which Drexel London was required to inform it in order to comply with its tortious duty. In those circumstances it is unreasonable to draw an inference that Drexel London's failure to inform Lavender Bay of what Lavender Bay already knew caused or materially contributed to the failure by Lavender Bay to remove all the oregon in the balconies and replace it with jarrah. I would uphold ground 2.

Design breach - trapping moisture (injured claimants' notice of contention in Drexel London appeal)

175 The injured claimants claim the trial judge erred in failing to find that Drexel London's design of the balcony was defective because it allowed moisture to be trapped between the plates and the steel support beam of the balcony.

176 The trial judge found that the balcony collapsed because the oregon from which the southern supporting plate had been cut was so weakened by rot that it failed suddenly. The cause of the rot was the moisture trapped between the southern support plate and the steel beam. The trial judge continued:

As I have noted earlier, the evidence is that if jarrah had been used in the construction of the balcony, it would have rotted eventually, but at a much slower rate than oregon. That being so, I think there is considerable force in the argument that if jarrah had been used, rot resulting from trapped moisture would not have advanced to the stage it did by 31 December 1996, with the result that the balcony would not have collapsed then and the plaintiff would not have suffered injury [242].

That being so, I consider that although Drexel London ought to have foreseen that their design would result in moisture being trapped between the steel and timber elements of the balcony, they would not have foreseen the degree of rot which gave rise to a risk of collapse [243].

In other words, I think the possibility of jarrah rotting in this environment was so small as to be discounted [244].

177 The trial judge was therefore not persuaded that Drexel London was negligent in designing the balcony in such a way that moisture was trapped between the steel and timber members [245].

178 As the trial judge was considering breach, his focus was (correctly) on the balcony as designed not the balcony as constructed. In essence, he found that with the balcony as designed (with jarrah), Drexel London would not have foreseen the degree of rot which gave rise to a risk of collapse. The trial judge erred in applying a subjective test of foreseeability. The injured claimants had to prove that the relevant risk was reasonably foreseeable to persons in the position of Drexel London at the time of the design of the balcony. There is also an issue as to whether the trial judge erred in determining foreseeability by reference to the events when and as they occurred. That needs to be considered against a broader canvas.

179 Drexel London's primary defence of the dismissal of this claim is based not on breach but on causation. It contends that in order to prove causation, the injured claimants had to prove the balcony as designed (with jarrah) would have failed as and when it did. Its fallback position is that proof of foreseeability at the breach stage requires the injured claimants to prove that it was reasonably foreseeable to persons in the position of Drexel London that jarrah would not be used as specified, thereby resulting in the collapse as and when it occurred. Both submissions are misconceived.

180 Breach is determined by reference to the balcony as designed. The question is whether a reasonable person in the defendant's position would have foreseen that its conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47. The requirement of reasonable foreseeability of harm is satisfied if the risk of harm of the kind suffered is not far-fetched or fanciful but real: Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 [60]. Thus the correct question is whether the trapping of moisture in the balcony as designed involved a risk of balcony collapse from moisture-caused rot that was real, not far-fetched and fanciful. The question is not whether the risk of not using jarrah in the construction of the balcony was far-fetched and fanciful.

181 If the relevant risk is real and not far-fetched and fanciful, the court has to go on to consider whether the failure to eliminate the risk showed a want of reasonable care: Wyong Shire Council v Shirt (47 - 48). There was expert evidence from Mr Phillips (a structural engineer) and Mr Antony Mee (a building inspector and surveyor) as to the means by which the moisture trap could be avoided (par 6.5 exhibit 28; ts 236, 384). It was not suggested that if the risk was reasonably foreseeable, it was not reasonable to eliminate or reduce the moisture trap.

182 I noted earlier that causation considerations are relevant in the determination of the content of the duty at the breach stage of the negligence analysis. However, it is the general sufficiency of the conduct to avert the risk of harm of the type suffered that is relevant not the specific sufficiency of the conduct to have averted the accident when and as it occurred.

183 Turning from breach to causation, the focus moves from the balcony as designed to the balcony as constructed. Causation in fact is established if the injured claimants demonstrate that the harm the subject of the claim would not have occurred when and as it did without (but for) Drexel London's negligent act in designing the balcony with moisture traps. Drexel London's approach to causation wrongly conflates issues of breach and causation. The same approach is evident in some of the expert evidence.

184 The relevant expert evidence is as follows. Dr Elaine Davison is an expert in plant pathology. She gave evidence that jarrah would have decayed much more slowly than oregon because jarrah was a more durable timber [57].

185 Mr Phillips said the catastrophe could have occurred regardless of what timber was used if the balcony was fully loaded and the other defects were present (including the moisture traps, the lack of restraint on the central column and the half-housing (par 6.5 exhibit 28; ts 354 - 355)).

186 Mr Ryan (an engineer) was asked whether jarrah would have rotted at all in the same circumstances. He said:

It depends on the quality of the timber used. The drawings specify select jarrah. In fact it specifies dry select jarrah. That is a very high quality hardwood and the durability of that is as good as you could expect in this state from local timbers, or if it's not the best, it's certainly getting up to it. It's at the top end of the range for durability. Would it have rotted by that stage? There is no way of knowing that and I certainly couldn't answer that but my opinion would be that any rotting that did occur would be insignificant structurally, when compared to the oregon (ts 206).

187 He was asked whether details for avoiding moisture traps were needed with jarrah. He responded:

You start getting into best practice. It's not a simple question to answer. Even with that detailing, my expectation would be that there would not have been a great deal of degradation of, you know, select grade jarrah in those circumstances by that time (ts 206). (emphasis added)

188 The focus of his evidence was on the extent of moisture-caused rot in jarrah by the time of the accident.

189 Dr Evans (a structural engineer), was asked whether in his experience or knowledge all timbers were susceptible to some extent or another to fungal infection or rot. He said:

All timbers can be subjected to fungal infections but there is a host of different fungal infections. Certainly jarrah to my knowledge does not have a problem with wet rot or biological degradation due to water and is one of the reasons why it is so suitable for use outside. It is the softwoods that really exhibit this type of problem.

In saying that, are you recognising that it's just a matter of degree as to susceptibility?---No, I'm not saying it's just a matter of degree (ts 413).

190 However, he agreed that it was wise to avoid a moisture trap in any timber but it was critical with oregon (ts 414).

191 I can now return to the question whether the trial judge determined reasonable foreseeability for the purpose of breach by reference to the collapse when and as it occurred. That he did do so is apparent in the transition from the conclusion in [242] that the balcony as designed would not have collapsed as and when it did, to foreseeability in [243]. It is also consistent with the direction in which the experts were taken in their evidence. That approach to foreseeability is flawed and the finding should be set aside. The correct question is whether the risk of wood rot sufficient to impair the structural integrity of the balcony as designed was real, not far-fetched or fanciful. The experts whose evidence was accepted by the trial judge would answer that question in the affirmative. Jarrah rots but at a much slower rate than oregon. That conclusion is consistent with the trial judge's unchallenged finding of the need to incorporate a degree of redundancy in the design of the balcony [246].

192 The risk of structurally significant wood rot being reasonably foreseeable and it being reasonable to eliminate or materially reduce the risk, there should have been a finding of breach. The evidence unequivocally supports an inference that the elimination or reduction of moisture traps in the balcony as designed would also have eliminated or reduced the level of rot in the balcony as constructed using oregon. Thus, but for the breach the collapse of the balcony as constructed would not have occurred when and as it did. Factual causation is established. Further, the breach was the physical cause of the loss and there is a direct connection between the rationale for the breach and the loss. These additional factors justify a finding of legal causation: March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506; Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870. I would uphold the notice of contention.

Liability of Strata Company (Drexel London's ground 4; injured claimants' ground 1)

193 The trial judge dismissed the injured claimants' claim against the Strata Company. That claim was for breach of the statutory duty in s 35(1)(c) of the Strata Titles Act 1985 (WA) as amended (the Strata Act). There was no claim in negligence against the Strata Company. Section 35, headed 'Duties of Strata Companies' relevantly provides:

...

(b) control and manage the common property for the benefit of all the proprietors;

(c) keep in good and serviceable repair, properly maintain and, where necessary, renew and replace -

(i) the common property, including the fittings, fixtures and lifts used in connection with the common property; and

(ii) any personal property vested in the strata company,

and to do so whether damage or deterioration arises from fair wear and tear, inherent defect or any other cause.

194 A contravention of s 35(1)(c) does not constitute an offence.

195 The trial judge found that the balconies formed part of the common property [474]. That surprising conclusion resulted from the failure to include what counsel for the Strata Company described as a 'squiggle' (technically known as a 'vinculum') on the strata plan. There is no challenge to the finding.

196 The trial judge also found that the presence of rot in the timber members of the balcony would not have been detected even by a person with considerable expertise in that field and that the injured claimants' case, at its highest, must be that the strata company was obliged to have an inspection carried out by a person whose level of expertise was such as to be able to recognise that oregon had been used in the balcony and also appreciate that oregon was unsuitable for that purpose [520].

197 Applying Ridis v Strata Plan 10308 [2005] NSWCA 246; (2005) 63 NSWLR 449, the trial judge held that under s 35(1)(c) a strata company is required to conduct inspections of the common property from time to time in order to determine whether any repair, maintenance or replacement is required. He continued:

However, the obligation to inspect which is inherent in s 35(1)(c), does not require inspection by anyone more highly qualified than an experienced managing agent or a person with general building maintenance skills, unless the strata company has reason to believe that inspection by a specialist is required [517].

198 The trial judge found there was no reason to suspect that the structure of the balconies warranted inspection by a structural expert [519]. In those circumstances, he concluded that the Strata Company would not have been required to have anyone better qualified than, for example, a carpenter to carry out a routine inspection. Prior to the collapse, the owner of the unit in question had engaged a carpenter, Mr Jack Strawbridge, to carry out some work on the balcony and he saw nothing of concern in undertaking that work [519].

199 The trial judge concluded that although the Strata Company was in breach of its statutory obligation under s 35(1)(c) by reason of its failure to inspect, that breach was not the cause of the collapse of the balcony nor of the injured claimants' injuries [521]. Having made that determination the trial judge did not go on to consider the Strata Company's claim that a breach of s 35 did not give rise to any civil claim for damages or alternatively, that such remedy was confined to the proprietors of the units [522]. The Strata Company raises these legal issues in its notice of contention in the Drexel London appeal and the injured claimants appeal.

200 Drexel London claims the trial judge erred in finding that there was no obligation on the Strata Company to engage a person with greater than general building maintenance skills, that a person with general building maintenance skills could be expected to recognise that oregon had been used in the balcony and in finding that the Strata Company's failure to inspect the balcony was not the cause of the collapse. Drexel London contends that the principles in Ridis apply to an action for negligence not to an action for breach of statutory duty, that the circumstances in Ridis were in any event distinguishable and alternatively, that the decision in Ridis is wrong. Drexel London's contentions overlap with those of the injured claimants.

201 The parties relied on the Strata Act as it was at the time of the balcony collapse on 31 December 1996. There was no dissent from the proposition that that is reflected in the 1997 reprint of the Strata Act.

202 The Law Reform Commission of Western Australia reported in December 1982 on the 1966 Act (the LRC report). Based on the LRC report, the 1966 Act was repealed and replaced by the Strata Act.

203 The 1966 Act provided in s 13(4)(b) that a strata company shall 'control and manage the common property'; in bylaw 2(a) in pt I of the schedule that a strata company shall 'control and manage the common property for the benefit of all proprietors'; and in s 13(4)(h) that a strata company must 'keep in a good and serviceable repair, and properly maintain, the common property'.

204 Section 35 of the Strata Act, as passed, relevantly provided:

...

(b) control and manage the common property for the benefit of all the proprietors;

(c) keep in good and serviceable repair (which for the purposes of this paragraph includes the making good of inherent defects and, where necessary, renewal or replacement) and properly maintain the common property, including the fittings, fixtures and lifts used in connection with the common property.

205 Section 35 of the Strata Act was amended by the Strata Titles Amendment Act 1995 (WA). The amended section is set out at [193] above. No party suggested that there is any material difference in the Strata Company's duties under s 35(1)(c) between the completion of the units in 1982 and the balcony collapse in 1996.

206 The scheme of the Strata Act is as follows. Upon the registration of a strata plan, the proprietors from time to time constitute the strata company which is a body corporate with perpetual succession and a common seal (s 32(1) and s 32(2)).

207 The common property is held by the proprietors as tenants in common in shares proportional to the unit entitlements of their respective lots (s 17(1)).

208 Where the proprietors of the lots are jointly entitled to take proceedings against any person, or liable to have proceedings taken against them jointly, being proceedings for or with respect to common property, the proceedings may be taken by or against the strata company and any judgment or order given or made in favour of or against the strata company shall have effect as if it were a judgment or order made in favour of or against the proprietors (s 33(1)).

209 A strata company is obliged to establish a fund for administrative expenses sufficient for the control and management of the common property, for the payment of any premiums of insurance and the discharge of any other obligation of the strata company (s 36(1)(a)). The strata company is obliged to determine from time to time the amounts to be raised for the purposes described in s 36(1)(a) and raise those amounts by levying contributions on proprietors (s 36(1)(b) and s 36(1)(c)).

210 For the purpose of carrying out any work referred to in s 35(1)(c), the strata company is entitled to enter upon any part of the parcel. In the case of an emergency the strata company may do so at any time (s 39(1)).

211 Under s 54(1a)(b) the strata company is required to effect and maintain insurance in respect of damage to property, death, or bodily injury for which it could become liable in damages.

212 Part VI of the Strata Act, as it stood at the material times, established a process for the resolution of disputes. It provided for the appointment of Strata Title referees who were given the power to determine applications under the Strata Act. Under s 102 a referee could appoint an administrator to perform a duty owed by the strata company. By s 83(1) a referee could make an order for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by the Strata Act on any person entitled to make an application. A person so entitled is a strata company, an administrator, a proprietor, a person having an estate or interest in a lot or an occupier or other resident of a lot.

213 The Strata Company places particular reliance on s 122(1) which relevantly provides:

Nothing in this Act derogates from any rights or remedies that a strata company, a proprietor or mortgagee of a lot, an administrator, a person having an estate or interest in a lot or an occupier may have in relation to any lot or the common property apart from this Act.

214 A breach of statutory duty may provide evidence of a breach of duty in an action for negligence. However, proof of breach of a statutory duty is not determinative of negligence: Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424.

215 Alternatively, a breach of statutory duty may found an action for damages. For that cause of action, negligence is irrelevant. As previously noted, the only claim against the Strata Company was for breach of statutory duty. The relevant issues include whether a breach of s 35(1)(c) can form the basis of an action for damages by anyone and if so, to whom is the duty owed. The Strata Act does not expressly provide answers to these questions.

216 The classic statement of the court's approach to these issues is seen in the judgment of Dixon J in O'Conner v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464. He said the question whether a private right of action for breach of statutory duty arises must be determined as a matter of construction (477). He continued:

The difficulty is that in such a case the legislature has in fact expressed no intention upon the subject, and an interpretation of the statute, according to ordinary canons of construction, will rarely yield a necessary implication positively giving a civil remedy. As an examination of the decided cases will show, an intention to give, or not to give, a private right has more often than not been ascribed to the legislature as a result of presumptions or by reference to matters governing the policy of the provision rather than the meaning of the instrument (477 - 478).

217 One of the presumptions of interpretation to which Dixon J referred was as follows:

... I think it may be said that a provision prescribing a specific precaution for the safety of others in a matter where the person upon whom the duty laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right, unless from the nature of the provision or from the scope of the legislation of which it forms a part a contrary intention appears (478).

218 Reliance was also placed on what Kitto J said in Sovar v Henry Lane Pty Ltd [1967] HCA 31; (1967) 116 CLR 397:

In the case of an enactment ... prescribing conduct to be observed by described persons in the interests of others who, whether described or not, are indicated by the nature of a peril against which the prescribed conduct is calculated to protect them, the prima facie inference is generally considered to be that every person whose individual interests are thus protected is intended to have a personal right to the due observance of the conduct, and consequently a personal right to sue for damages if he is injured by a contravention (404).

219 The parties relied primarily on New South Wales authorities concerning the construction of New South Wales legislation relating to strata titles. It has been held that the New South Wales equivalent of s 35(1)(b) and s 35(1)(c) created duties owed to each and every proprietor: Jacklin v Proprietors of Strata Plan No 2795 [1975] 1 NSWLR 15, 24 (construing s 68(1) of the Strata Titles Act 1973 (NSW)). From there it was held that proprietors had a private right of action for damages against the strata company for breach of its duties under s 68 and its successors: Lubrano v Proprietors of Strata Plan No 4038 (1993) 6 BPR 13,308; Proprietors of Strata Plan No 464 v Oborn (1975) 1 BPR 9623; Proprietors of Strata Plan 159 v Blake (1986) NSW Strata Titles Cases 30-086; Proprietors Strata Plan No 30234 v Margiz Pty Ltd (1993) 7 BPR 14,458.

220 The next case in the series is Ridis which was relied on by the trial judge. In Ridis the occupier of a strata title unit injured his right arm when the glass pane on the entrance door of the building shattered. The claimant sued in negligence, relying on a breach of s 62 of the Strata Schemes Management Act 1996 (NSW) as evidence of negligence. Section 62 provides:

(1) An owners corporation must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.

(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.

(3) This clause does not apply to a particular item of property if the owners corporation determines by special resolution that:

(a) it is inappropriate to maintain, renew, replace or repair the property, and

(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

221 The claimant contended that s 62 imposed a duty on the owners corporation to engage experts to inspect the common property to determine whether or not the glass on the entrance door was safe and a duty to act on the advice of the experts, which would have been to replace the glass. The claimant relied on breaches of those duties as evidence of negligence.

222 Hodgson JA concluded that the obligations under s 62(1) and s 62(2) were absolute which meant that an owners corporation, acting reasonably, should have a system in place for monitoring the maintenance and state of repair of the common property and that the terms of s 62(3) meant particular regard should be had to safety issues. He continued:

However, in my opinion, this does not mean that the owners corporation must from time to time hire specialist experts to inspect every aspect of the common property that could possibly give rise to safety issues. Certainly, if it has reason to believe that any such aspect could be dangerous, such as electrical wiring, then it should engage the appropriate expert. But in the absence of any such reason, in my opinion an owners corporation, acting reasonably, would have in place a system of periodic inspection by someone with appropriate general skills, such as an experienced managing agent or a person with general building maintenance skills, and need not in that event have a system involving regular inspection by more specialised experts (452).

223 It is not clear whether Hodgson JA concluded that there was an implied statutory duty to inspect or whether he is conflating the absolute statutory duty with the content of the duty of care owed by the owners corporation. McColl JA was the other member of the majority. She concluded that s 62 did not impose an obligation to upgrade the glass door to contemporary standards. She reached that conclusion by narrowly construing the statutory obligation to maintain and repair the common property. She held that s 62(1) and s 62(2) were directed to circumstances where something in the common property was no longer operating effectively or at all or had fallen into disrepair. Thus, the owners corporation was not obliged to conduct or procure an expert assessment of the common property (487).

224 Tobias JA dissented. He concluded that s 62 imposed a duty of affirmative action upon the owners corporation pursuant to which it was required to inspect the common property from time to time and replace any fixture or fitting which, even if not broken or patently defective, presented a safety risk or did not comply with current safety standards (460).

225 The final New South Wales case referred to by the parties is Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157, a judgment of Brereton J. In that case the proprietor of a unit claimed damages for economic loss arising from a breach by the owners corporation of its duty under s 62. There were two complaints. The first related to the rusting of steelwork that formed a framework of the balcony of the unit and the second related to defects in a waterproof membrane and window seals resulting in water penetration into the living area of the unit. The defective items were part of the common property. Brereton J concluded that the duty in s 62(1) is strict and that as soon as something in the common property was no longer operating effectively or at all or had fallen into disrepair, there was a breach of s 62 ([3], [5]). This statement of when a breach arises is consistent with McColl JA's construction of s 62 in Ridis. The duty being strict, it was irrelevant whether or not the owners corporation took all reasonable steps to rectify the problems. He said the duty was owed to each lot owner and its breach gave rise to a private cause of action for damages [6]. Damages were assessed from the time when it was established that the owners corporation first knew of the rust damage and the water penetration. Thus the liability is not absolute or strict in the usual sense. Brereton J distinguished Ridis on the basis that the breach of statutory duty in that case was relied on as evidence of negligence [5]. The proprietor in Seiwa pleaded the statutory cause of action.

226 The injured claimants also relied on the Queensland case of Seden v The Proprietors 'Tyalla Court' [1978] Qd R 53. In that case a tenant slipped on concrete stairs which were common property of a block of strata-titled units. The tenant sued the body corporate in both negligence and for breach of statutory duty for damages for personal injuries. The body corporate was obliged by statute to control and manage the common property and to keep it in a state of good and serviceable repair and to properly maintain it. The trial judge made a finding of negligence (a failure to take reasonable care to keep the steps reasonably safe). Douglas J (with whom Andrews & WB Campbell JJ agreed) held that there was no reason to disturb the trial judge's findings (59). WB Campbell J made some additional observations. In particular, he said that the duty to control and manage for the benefit of all proprietors is a duty 'to take all reasonable care, in the manner of control and management, towards all persons who lawfully use the common property' (60). The reference to reasonable care suggests he was referring to negligence.

227 The proper starting point is the scope and purpose of s 35(1)(c) which is relevant to whether the Strata Act gives a private right to damages and if so, to whom.

228 Drexel London and the injured claimants contend that s 35(1)(c) gives rise to a strict or absolute duty where neither actual or constructive knowledge of the defect nor lack of care need be shown to establish breach. That is, a strata company is in the position of an insurer.

229 Closely linked with this contention is the proposition that the purpose of s 35(1)(c) is primarily protective. That is, its primary purpose is to ensure the safety of all persons lawfully present on the common property. I do not accept that proposition. The section has multiple purposes. One of the primary purposes of s 35(1)(c) is to allocate responsibility as between the proprietors and the strata company in relation to the obligations in question, which obligations impact on the owners proprietary and economic interests and enure to the benefit of the occupiers of the units. In private law, the allocation of responsibility would be contractual and the obligations are familiar in leasehold contexts. These obligations, which are imposed on the strata company and funded by the proprietors, include but go well beyond safety purposes as Seiwa graphically illustrates. They are to:

(1) keep in good and serviceable repair the common property;

(3) renew and replace the common property where necessary, and to do so where the damage or deterioration arises from fair wear and tear, inherent defect or any other cause.

230 The Macquarie Dictionary (3rd ed, 2003) defines the expression repair in the context of 'to keep in repair' to mean the condition resulting from repairing and 'repair' means to restore to a good or sound condition after decay or damage. As the obligation requires positive action by the strata company, it implies that the property has existing decay or damage that is or should be known to the strata company. The same analysis applies to the third limb which refers to the obligation, where necessary, to renew and replace the common property. That duty to act implies the presence of damage or deterioration that is or ought to be known to the strata company. The reference to 'inherent defect' in s 35(1)(c) is to the cause of the damage or deterioration.

231 The obligation to 'properly maintain' has, in another statutory context, been held to give rise to an absolute obligation of the kind contended for by the injured claimants: Galashiels Gas Co Ltd v O'Donnell [1949] UKHL 2; [1949] AC 275; Hamilton v National Coal Board [1960] 2 WLR 313. In both cases the expression was contained in legislation imposing specific safety obligations on employers. In Galashiels, the expression 'maintained' was defined in the relevant legislation to mean 'maintained in an efficient state, in efficient working order and in good repair'. Lord MacDermott in Galashiels at 286 noted that the word 'maintain' when used in relation to the state or condition of things is not always used in the same sense. It may be used to indicate the continuance of a particular state or condition or it may mean acts done or required to be done in the course of maintenance. In the latter context, maintain means service, look after or attend to. The House of Lords construed the term in the former sense with the consequence that any cessation in the efficient working order of plant in question established a breach. The effect was that the employer warranted that the equipment it was obliged to maintain would never be out of working order (see Hamilton (316)).

232 When regard is had to the multiple purposes of s 35(1)(c), it is clear the legislature did not intend the strata company to guarantee a continuous outcome or standard. The term 'maintain' is used in the second sense identified by Lord MacDermott in Galashiels being the process that involves acts of maintenance with the object of continuing the statutory standard, which in this case is that the common property be in good and serviceable repair.

233 Further, the obligation to maintain means you take the thing as you find it (that is, in its existing state or condition). The structural defect in the balcony existed prior to the creation of the Strata Company. If there is existing damage or deterioration such that the property is not in good and serviceable repair, the obligation to put it in that state falls within the first and third limbs of the strata company's obligations.

234 This construction of the obligations in s 35(1)(c) is consistent with the construction of analogous legislation by the High Court in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313. In that case the child of a tenant was electrocuted when she attempted to turn off an outside tap. Proceedings for damages on behalf of the child were commenced against the landlord. The High Court was called upon to construe s 106(1)(a) of the Property Law Act 1974 (Qld) and s 7(a) of the Residential Tenancies Act 1975 (Qld). Section 106(1)(a) imposed an obligation on the lessor to provide and maintain the leased premises in a condition reasonably fit for human habitation. Section 7(a) of the Residential Tenancies Act included in every tenancy agreement implied obligations on the part of the landlord, amongst other things, to maintain the dwelling house in good tenantable repair and in a condition fit for human habitation. After an extensive review of statutory provisions of this type, Gummow J (382, 385) and Kirby J (415) rejected the contention that they imposed absolute obligations. They concluded that neither provision imposed an obligation in relation to defects of which the landlord was not aware and could not reasonably be expected to have been aware. That dicta has been applied by the Queensland Court of Appeal in Bond v Weeks [1999] 1 Qd R 199 and Gration v C Gillan Investments Pty Ltd [2005] QCA 184; [2005] 2 Qd R 267. The reasoning of Gummow and Kirby JJ for rejecting a construction which would impose absolute liability on the landlord is equally applicable to s 35(1)(c) of the Strata Act, particularly when regard is had to the multiple purposes of that section.

235 Thus, the test of breach of s 35(1)(c) in this case is whether the Strata Company knew or ought to have known of the structural defect in the balcony. The evidence establishes that it did not know of the defect. Compliance with the maintenance obligation would not have disclosed the structural defect. Maintenance of the balcony in question was in fact undertaken by the occupier of the unit against whom a negligence claim was dismissed. Moreover, the trial judge found there was no reason even to suspect that a structural inspection was warranted [519]. The central issue is whether in those circumstances, the Strata Company should have had the balconies and other parts of the common property inspected by a person or persons with the necessary expertise to identify the whole range of potential structural defects, including the defect in question. The trial judge was correct in answering that question in the negative. On that basis alone, I would dismiss the grounds of appeal.

236 In those circumstances, it is unnecessary to determine the notices of contention. However, as the matters the subject of the notices were fully argued I propose to address them. The injured claimants were visitors to the Old Soap Factory. As a preliminary matter, it should be noted that on my construction of s 35(1)(c), there would in a personal injuries claim be no material difference between a breach of a tortious duty of care and a breach of the statutory duty in s 35(1)(c). That is, a similar duty and standard of care is owed to all users of the common property.

237 However, s 35(1)(c) also imposes duties that differ in character from tortious duties and more closely resemble contractual duties. The latter type of duties could only sensibly be owed to persons with a proprietary or occupational connection with the units served by the common property. Those persons are identified in s 83(1) and s 122(1) of the Strata Act.

238 It is to be expected that the persons to whom the duties in s 35(1)(c) are owed would not differ according to the nature and context of the claim. However, some of the duties falling within the scope of the section are clearly not applicable to visitors to the common property. That is a strong indication that the legislature intended to confine those duties to the persons nominated in s 83(1) and s 122(1) of the Strata Act. That conclusion is fortified by the fact that where the personal safety of users of the common property is involved, there is no material difference between the tortious and statutory duty.

239 The injured claimants rely on [15.27] of the LRC report in support of their claim that the duties in s 35(1)(c) are owed to all users of the common property, including visitors. Under the 1966 Act a strata company was obliged to insure in respect of damage to property, death or bodily injury occurring on common property only if required to do so by special resolution. The Commission regarded that as unsatisfactory. It said:

The strata company has the duty to control and manage the common property and to properly maintain it. The company could be liable for substantial damages if, for example, a visitor who is badly injured through some defect in the common property succeeded in an action against the company for failing to maintain it.

240 A footnote to that passage refers to an unreported case in the Supreme Court of Victoria, Black v The Body Corporate Strata Plan No 4303 (1982) (Unreported, VSC). The relevant facts are reported in Albion Insurance Co Ltd v Body Corporate Strata Plan 4303 [1983] VicRp 94; [1983] 2 VR 339. Black involved a claim in negligence not an action for damages for breach of statutory duty. The LRC report does not support the injured claimants' contention.

241 Thus, I conclude that a breach of s 35(1)(c) can form the basis of an action for damages by the proprietor or mortgagee of a lot, an administrator, a person having an estate or interest in a lot or an occupier (including a resident) of a lot. I would uphold the notices of contention in this respect.

242 The City contends the trial judge erred in concluding that it owed a duty of care to the injured claimants, that it breached that duty and that the breach caused the loss. It also appeals against the apportionment of damages.

243 The claim against the City was an action in negligence, relying on a breach of s 5(6)(c) of the 1966 Act for the duty of care and as evidence of its breach. It was not an action for breach of statutory duty.

244 The City issued a certificate under s 5(6)(c) of the 1966 Act in the following terms:

City of Fremantle, the local authority,

HEREBY CERTIFIES THAT: -

(1) The building shown on the plan has been inspected and that it is consistent with the building plans and specifications in respect thereof that have been approved by the Local Authority.

(2) The building, in the opinion of the Local Authority, is of sufficient standard and suitable to be divided into lots pursuant to the Strata Titles Act, 1966.

245 The trial judge concluded that while a local authority was required to issue a certificate if satisfied about the general planning considerations referred to in s 20 of the 1966 Act, it should not do so unless and until it had inspected the building to ensure it was consistent with the approved plans and specifications [341].

246 The trial judge was of the view that an obligation to ensure the building was 'consistent' with the approved plans and specifications was materially different than an obligation to ensure that the building 'conformed' with those plans and specifications. He continued:

Viewed objectively, there is likely to be a spectrum of consistency. At one extreme, a building would be consistent with the approved plans and specifications if it conformed to them in every last detail. At the other extreme, there might be so many departures from the approved plans and specifications that the building could not be said to be consistent with them [342].

247 He also concluded that the inspection was to be of the completed building in which event inspection might not reveal aspects of the building which had been rendered invisible by ongoing construction. The implication was that the obligation to inspect excluded such matters [343].

248 A building inspector employed by the City, Mr Nino Monaco, inspected the Old Soap Factory but only to ensure compliance with the relevant building regulations and the strata plan [348]. No attempt was made to carry out an inspection for the purpose of determining whether the Old Soap Factory had been constructed in a way which was consistent with the building plans and specifications [357]. There was no suggestion the injured claimants were aware of the existence of the certificate or relied on it in any way [371].

249 The parties adduced evidence ostensibly on the standard of care owed by the City. Mr Ronald Sherar, a building surveyor with 23 years' experience in local government, gave evidence that in his experience a site inspection is carried out to determine that the overall structure is consistent with the form and shape on the approved building licence and strata plan and that such an inspection does not involve a detailed comparison of the finished structure with the approved plans and specifications. Mr Ian Lush, also a building surveyor, said normally the inspector would check all aspects of the building for compliance with the approved plans and specifications. The trial judge held that the proper procedure is as described by Mr Lush [356]. He concluded:

In my view, the local authority owes a duty of care to any person who might suffer harm as a result of a negligent inspection. I regard as negligent, a failure to discover a dangerous or potentially dangerous aspect of the building which ought to have been discovered on reasonable inspection by an appropriately qualified person. In this context, I consider that it is incumbent on the local authority to employ as an inspector a person who is qualified to interpret plans and specifications and to determine consistency. In other words, the inspector must be a person qualified to exercise the degree of judgment necessary to place the building appropriately on the spectrum of consistency.

In this case, I think, it should have been obvious to such an inspector that oregon had been used in place of the specified jarrah, and that this departure from the specification required (at least) further investigation before the certificate could properly be issued [368] - [369].

250 The trial judge concluded that the failure of the City to carry out a proper inspection before issuing its certificate on 8 November 1982 was a direct cause of the collapse of the balcony [373].

251 The scheme of the 1966 Act at the date of certification by the City is as follows. Registration of a strata plan resulted in the subdivision of the land the subject of the plan into lots (s 4). Section 5 relates to the requirements for registration of a strata plan. Section 5(6) relevantly provides:

A strata plan lodged for registration under this Act shall be endorsed with or accompanied by a certificate in the prescribed form -

(a) of a licensed surveyor ... that the building shown on the plan is within the external surface boundaries of the parcel ... ;

(b) of the Town Planning Board ... that the proposed subdivision ... in the plan has been approved by the Board; and

(c) of the appropriate local authority under the hand of the town clerk or shire clerk thereof that -

(i) the building shown on the plan has been inspected and that it is consistent with the building plans and specifications in respect thereof that have been approved by the local authority;

(ii) [repealed]; and

(iii) the building, in the opinion of the local authority, is of sufficient standard and suitable to be divided into lots pursuant to this Act.

252 Section 20 of the 1966 Act relevantly provides:

(1) In respect of any application for a certificate under paragraph (c) of subsection (6) of section five of this Act, the local authority shall direct the issue of the certificate, if it is satisfied that -

(a) separate occupation of the proposed lots will not contravene the provisions of any town planning scheme prepared or adopted by the local authority under the Town Planning and Development Act, 1928;

(b) any consent or approval required under any such town planning scheme or under the provisions of the last mentioned Act relating to any interim development order, has been given in relation to the separate occupation of the proposed lots;

(c) the building and the proposed subdivision of the parcel into lots for separate occupation will not interfere with the existing or likely future amenity of the neighbourhood, having regard to the circumstances of the case, and the public interest.

253 Upon refusal, or failure within 40 days after application, to issue a certificate under s 5(6)(c) the applicant for the certificate may appeal to the Minister (s 20(2)). The Minister may determine the appeal and make such order as he thinks fit (s 20(3)). His decision is final and binding upon the local authority (s 20(4)).

254 The 1966 Act was modelled on the New South Wales strata title legislation then in force, being the Conveyancing (Strata Titles) Act 1961 (NSW) (the NSW Act). The NSW Act provided that a strata plan lodged for registration had to be accompanied by or endorsed with certain certificates including that of the local council. Section 4(3) of the NSW Act required the strata plan to be accompanied by or endorsed with the certificates:

(a) of a surveyor registered under the Surveyors Act ... ;

(b) of the town or shire clerk of the local council that the proposed subdivision of the parcel, as illustrated in the strata plan, has been approved by the local council; and

(c) pursuant to s 317A of the Local Government Act, 1919, as amended by subsequent Acts, in respect of the building.

255 The local council was obliged to issue a certificate under s 4(3)(b) of the NSW Act if it was satisfied of the specified matters in s 20(2) of the NSW Act which was in materially the same terms as s 20(1) of the 1966 Act.

256 Section 317A of the Local Government Act 1919 (NSW) (referred to in s 4(3)(c)) relevantly provided:

(1) Any person may at any time apply for a certificate to the effect that in the opinion of the council a building in all respects complies with the Act, the ordinances and the plans and specifications approved by the council or if there has been any contravention of the Act or ordinances or any departure from the approved plans or specifications, if any, that such contravention or departure is not such as need be rectified.

257 On receipt of a request under s 317A, the council was under a duty to act: Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424. Section 317A was part of a broader inspection regime under the NSW Act. The main effect of s 317A was to protect a bona fide purchaser for value from action which a local authority might otherwise take in respect of events that occurred prior to the issue of the certificate: Sutherland Shire Council v Heyman (434 - 435) (Gibbs CJ). Thus, the primary purpose of s 4(3)(c) of the NSW Act was to protect the purchasers of strata title lots.

258 Western Australia did not at the material time (and does not now) have an equivalent to s 317A of the Local Government Act 1919 (NSW) or its broader inspection regime. Section 4(3)(b) and s 20(2) of the NSW Act dovetail without any inconsistencies. The 1966 Act on the other hand combined the obligations in s 4(3)(b) and s 4(3)(c) of the NSW Act and imposed them on the local authority (s 5(6)(c)). This created a literal inconsistency between s 5(6)(c) and s 20 of the 1966 Act. That literal inconsistency is avoided if s 20(1) is construed to mean that 'the local authority shall, having inspected the building shown on the plan and determined that it is consistent with the approved building plans and specifications, direct the issue of the certificate' if it is satisfied of the specified matters. That is clearly the legislative intent. The City's contention to the contrary would deprive s 5(6)(c) of any substantive effect and is without merit.

259 The injured claimants challenge the correctness of the trial judge's interpretation of the term 'consistent' in s 5(6)(c). They say consistent means 'in compliance with'. The legislative history supports the trial judge's conclusion. Section 5(6)(c) was amended by the Strata Titles Act Amendment Act 1969 (WA). During the parliamentary debate on the bill, an amendment was moved to insert the word 'substantially' in s 5(6)(c)(i) to require that a building be 'substantially consistent' with the plans and specifications. The Minister handling the passage of the bill rejected the amendment saying:

I am assured by the Crown Law Department that when we talk about a building being consistent it only means that it must conform - not be identical - in a sensible sort of way. If one goes beyond the legal explanation that has been given to me, and takes the simple dictionary definition, it will be found that the word 'consistent' means something which is compatible; which, in itself, does not mean that it has to be scrupulously in accordance with the utmost detail in the original plan.

260 The City submits that s 5(6)(c) is not concerned with the safety of the building which fell solely within the province of the Local Government Act 1960 (WA) (the LGA), in particular, s 374 and s 401 thereof. Section 374 prohibited the commencement of building work without prior local authority approval of the plans and specifications. Failure to comply with s 374 was an offence. By s 401, a local authority had the power during or after the erection of a building to give to the builder or owner a written notice of anything in the construction of the building which, inter alia, was a departure from the approved plans and specifications, and require the owner to pull down or alter the building so as to remove the cause of the objection.

261 It is accepted by the parties that safety is a relevant consideration in the exercise of a local authority's powers under s 374 and s 401 of the LGA. However, it is a non sequitur to suggest as the City did that safety-related aspects of the approved plans and specifications are excluded from the scope of the duty in s 5(6)(c) of the 1966 Act. There is no warrant in its language or purpose to read s 5(6)(c) down in the way contended for by the City. A departure from the plans and specifications which would have significant adverse structural consequences is clearly within the scope of the section.

262 This is not a case where the existence of a duty of care is well established and well understood. Analysis of the relevant legal principles and their application is required.

263 Reasonable foreseeability of harm of the kind suffered is a necessary although insufficient condition for the existence of a duty of care: Tame v The State of New South Wales [2002] HCA 35; (2002) 211 CLR 317 [12]. Foreseeability was not raised as an issue in the appeal

264 Generally, reasonableness is the test for the imposition of a duty of care; it is the reasonableness of a requirement that a person should have certain persons or interests in contemplation that determines the existence of a duty of care: Tame [9], [35], [109], [185], [272], [331]. However, the imposition on a public authority of a duty of care directly connected with the existence of a public power or duty raises discrete considerations. For example, there must be no incompatibility between a public authority's statutory powers and duties and its common law duties: Sullivan v Moody (2001) 207 CLR 562; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [78].

265 Further, the mere existence of a statutory duty or power does not create a common law duty even if harm of the kind suffered is reasonably foreseeable: Sutherland Shire Council v Heyman; Graham Barclay [80] (McHugh J), [145] - [148] (Gummow & Hayne JJ); Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215. Something additional is required. What that something is depends on all the circumstances. Ordinarily, a public authority will have no liability for a pure omission (a term intended to exclude an omission occurring in the course of positive conduct: Bennett (419 - 420)). That is a consequence of the need for an appropriate accommodation of public and private law principles and remedies.

266 This is not a pure omission case. The City purported to perform its duty under s 5(6)(c). The injured claimants (who were visitors to the building) say this fact alone brings the City within an established category giving rise to a duty of care: see Caledonian Collieries Ltd v Speirs [1957] HCA 14; (1957) 97 CLR 202, 219 - 220, Sutherland Shire Council v Heyman (458) (Mason J); Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 [62] (McHugh J). I am not satisfied that is an accurate proposition. It ignores the role of the statutory scope and purpose of the relevant duty or power. The exercise of a statutory power or performance of a statutory duty may (not must) import a common law duty to take care: Sutherland Shire Council v Heyman (458 - 459) (Mason J).

267 For example, there will be no common law duty of care if the statute expressly or impliedly excludes a parallel common law duty. There are other examples where positive conduct undertaken in a regulatory context has not given rise to a common law duty of care: Yuen Kun Yeu v Attorney-General of Hong Kong [1988] 1 AC 175 (which concerned both acts and omissions); Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1995] UKHL 4; [1996] 1 AC 211; Reeman v Department of Transport [1997] EWCA Civ 1355; [1997] 2 Lloyd's Rep 648; cf Perrett v Collins [1998] 2 Lloyd's Rep 255.

268 Although the mere existence of a statutory duty or power does not create a common law duty, the scope and purpose of the statutory duty or power can inform and affect the existence and content of any common law duty: Sutherland Shire Council v Heyman (439, 447); Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330; Stuart v Kirkland-Veenstra [139] - [146]; Woollahra Municipal Council v Sved (1996) 40 NSWLR 101.

269 Under s 5(6)(c)(i) of the 1966 Act the local authority is, when called upon to do so, under a duty to determine whether or not a building the subject of a strata plan lodged for registration is consistent with the approved plans and specifications and to undertake an inspection of the completed building for the purpose of making that determination. If the City determines there is the requisite consistency and is satisfied of the matters in s 5(6)(c)(iii) and in s 20, it is under a statutory duty to issue a certificate.

270 Any common law duty arising from action taken under s 5(6)(c)(i) would necessarily be very specific and leave little room for manoeuvre at the breach stage of the analysis. In particular, the section identifies the immediate purpose of the inspection (consistency with the approved plans and specifications) and the reasonableness of that statutory requirement could not be questioned. This level of specificity of duty does not sit comfortably with the common law approach to duty and breach: Graham Barclay [191] - [192].

271 Further, the statutory purpose and object of the City's duty under s 5(6)(c)(i) is solely connected with the registration of a strata plan for the building. If the City had properly performed its duty the strata plan would not, in the absence of a successful appeal, have been registered. It is of particular significance that the registration of a strata plan is not a precondition to the occupancy or use of the building the subject of the application. In this way the building the subject of a strata title application is treated in the same way as other buildings in this state. Furthermore, there is no power in the 1966 Act by which an applicant for a strata plan can be compelled to bring the building into conformity with the approved plans and specifications. The only course under the 1966 Act would be to decline to issue a certificate until all relevant departures from the approved plans and specifications had been rectified. The right of appeal to the Minister in the event of the failure by the City to issue a certificate within 40 days demonstrates that the legislature was not relying on a local authority exercising its power under s 401 of the LGA.

272 As discussed earlier, safety considerations had to be taken into account by a local authority when determining whether to approve plans and specifications under s 374 of the LGA and in that way, safety is a relevant consideration in the procedure for registration of a strata plan. But it cannot be said that the purpose and object of the City's duty under s 5(6)(c) of the 1966 Act is the prevention or mitigation of harm to visitors to the building. It goes no further than preventing the registration of a strata plan in the absence of a successful appeal. That only protects purchasers of prospective strata title lots which is consistent with the scope and purpose of the NSW Act on which the 1966 Act is modelled.

273 I conclude from this analysis of the 1966 Act that the legislature did not intend to confer on visitors to a strata-titled building a right to damages for breach of the statutory duty in s 5(6)(c). It is unnecessary to determine whether a purchaser of a strata title lot would have such a right. The absence of a right to damages for breach of statutory duty does not itself determine whether there is a parallel common law duty of care. However, where a statute is not only the source of, but would also specifically identify and delineate the content of any common law duty, the statutory scope and purpose is a relevant factor when determining whether it is reasonable that a local authority have visitors to strata-titled property in contemplation when performing its duties under s 5(6)(c) of the 1966 Act. It is this specificity that distinguishes this case from the cases falling within the established category exemplified in Caledonian Collieries v Speirs, Sutherland Shire Council v Heyman and Crimmins v Stevedoring Industry.

274 Having regard to the purpose of the statutory framework, it cannot in my view be concluded that the City's conduct under s 5(6)(c) alone gave rise to a parallel common law duty of care to prevent or minimise the risk of harm to visitors to the building. The City acted under s 5(6)(c) as part of its duties under a regulatory framework for the registration of strata plans in which the safety of the users of the building was not the statutory purpose. There is nothing in the circumstances which materially add to the City's conduct under the statute. The City did not create or increase the risk of harm of the kind suffered. The risk of harm was created and increased by the actions of the owner-builder, the architects and the engineers. There was no proven reliance of any kind, specific or general, by the applicant for the certificate or the injured claimants on the City's performance of its statutory duties under s 5(6)(c). There is no other sufficient physical, temporal, relational or causal connection between the City and the injured claimants to give rise to a duty of care to visitors. I would uphold ground 1 of the City appeal.

275 The City contends the trial judge should have preferred the evidence of Mr Sherar to that of Mr Lush. Both witnesses gave evidence of their understanding of what is required by s 5(6)(c) of the 1966 Act.

276 If, contrary to my view, action taken in purported performance of the duty under s 5(6)(c) of the 1966 Act gives rise to a common law duty of care to users of the building, it remains the case that the section informs both the existence and content of the duty. The content of the duty is determined by construing the section in which event the evidence of Mr Sherar and Mr Lush is irrelevant. What the witnesses think is required in order to satisfy the statutory and thus the common law duty is irrelevant unless perhaps the construction of s 5(6)(c) was a matter on which reasonable people could (and the City did) differ: Stone James & Co v Investment Holdings Pty Ltd [1987] WAR 363, 374. The City did not put its case this way.

277 On a proper construction of s 5(6)(c), the inspection of the building is for the purpose of determining whether or not the building is consistent with the approved plans and specifications. It is implicit in that duty that the inspection be conducted by an appropriately qualified person. The City did not conduct an inspection for the statutory purpose. On the assumption there is a duty of care, the trial judge did not err in concluding that the duty had been breached. I would dismiss ground 2.

278 The essence of the City's claim is that the cause of the injured claimants' injuries, as distinct from the failure of the balcony, was Drexel London's negligence in failing to incorporate an appropriate degree of redundancy in the design and in allowing moisture to be trapped between the plates and steel support beam of the balcony.

279 The submission is misconceived. Causation is determined on the basis of the balcony as constructed. Applying the principles in March v E & MH Stramare, the use of oregon in place of structural grade jarrah was a factual and legal cause of the collapse of the balcony and the resulting injuries to the injured claimants. The existence of other concurrent contributing factual and legal causes does not displace or supersede what in this case was the primary cause of the injuries to the injured claimants: Henville v Walker [2001] HCA 52; (2001) 206 CLR 459. I would dismiss ground 3.

280 As the appeal against the finding of negligence against the City has been upheld, it is unnecessary to address the challenge to the apportionment of damages. However, I propose to briefly address the question for the sake of completeness. I do so on the assumption that all of the challenges to the trial judge's decision are dismissed. On that basis, the only relevant breaches are those by Drexel London relating to the failure to incorporate an appropriate degree of redundancy and to the failure to advise Lavender Bay of the consequences of substituting oregon for jarrah.

281 The legal principles are not in dispute. In any proceedings for contribution, the amount of contribution recoverable shall be such as may be found by the court to be just and equitable: Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) s 7(2).

282 The making of an apportionment involves a comparison both of culpability, that is, of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492, 494.

283 The assessment of what is just and equitable involves a discretionary judgment to which the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499 apply: Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513. An appellate court can only intervene if there is a material error of fact or law discernible in the trial judge's reasons or if the result is manifestly unreasonable.

284 I have concluded that the trial judge erred in characterising the basis of Drexel London's breach as being that it put the design forward as its own. That is a material error which undermines the apportionment. Moreover, the apportionment of 30% to Drexel London and 70% to the City is manifestly unreasonable. Based on Drexel London's close involvement with the design of the balconies and its knowledge of the substitution (as found by the trial judge), the degree of culpability of Drexel London is significantly higher than that of the City who negligently failed to prevent harm because of a misunderstanding as to the scope of its statutory duty. Drexel London's negligent acts and omissions increased the risk of harm. The City failed to prevent harm from a source of which it had no knowledge. I would have reversed the apportionment, leaving the City responsible for 30% of the damages.

285 The injured claimants contend the trial judge erred in failing to make a Sanderson or Bullock order against Drexel London and the City in respect of the costs of the successful first, second and third defendants (the owner of the unit, the occupier of the unit and the Strata Company respectively).

286 In view of the successful challenges to the trial judge's decision, it is unnecessary to address this ground. However, I will do so for the sake of completeness.

287 The award of costs is also a discretionary judgment to which the principles in House v The King apply. The issue is whether the injured claimants or the unsuccessful defendants (Drexel London and the City) should pay the costs of the first, second and third defendants.

288 The costs discretion is unfettered but costs generally follow the event. In cases involving multiple defendants there is a discretion to depart from the usual rule by ordering an unsuccessful defendant to pay, directly or indirectly, the costs of the successful defendants: Fimiston Mining NL v Western Reefs Ltd (1996) 14 WAR 387, 389.

289 The injured claimants allege the trial judge failed to give sufficient weight to certain matters and failed to take into account other matters. Grounds of this nature are invariably the refuge of litigants who are unable to identify a material error enlivening this court's discretion to intervene.

290 The trial judge refused the application because he concluded, correctly in my respectful opinion, that the claims against the first three defendants were separate and distinct from the claims against the City and Drexel London and that there was nothing in the conduct of the unsuccessful defendants causing the injured claimants to sue the first to third defendants or to persist in those claims.

291 The injured claimants failed to demonstrate a material error enlivening this court's discretion to intervene or assuming error, that the trial judge was wrong in the result. I would dismiss this ground.

Apportionment (Halpern Glick's cross-appeal)

292 I would uphold the injured claimants' claim in negligence against Halpern Glick, uphold Drexel London appeal but only in part, dismiss the challenges to the dismissal of the claim against the Strata Company and uphold the City appeal against the finding of negligence. In those circumstances, the proper course is to set aside the order made by the trial judge dismissing Halpern Glick's claim for contribution against Drexel London.

293 As a result of the various appeals, I have relevantly concluded that:

(1) Halpern Glick and Drexel London were negligent in failing to incorporate an appropriate degree of redundancy in the design of the balcony incorporated in drawing 15;

(2) Drexel London was negligent in designing the balcony in a way which permitted the trapping of moisture between the southern support plate and the outer steel beam; and

(3) Halpern Glick was negligent in April 1982 in failing to advise Lavender Bay of the need to securely tie back the central column by means other than simply the joists.

294 Undertaking the comparative exercise identified in Podrebersek, I assess the respective levels of culpability and causative contribution as equivalent and thus would apportion liability between Drexel London and Halpern Glick on a 50:50 basis.

(1) the trial judge erred in failing to find that Halpern Glick provided the structural information on which Drexel London relied in the preparation of drawing 15;

(2) Halpern Glick was negligent in failing to advise Drexel London of the need to incorporate an appropriate degree of redundancy in the design of the balcony;

(3) the trial judge did not err in concluding that Drexel London was negligent in failing to incorporate an appropriate degree of redundancy in the design of the balcony;

(4) the trial judge erred in finding that Mr Drexel or Mr London actually observed that oregon had been substituted for jarrah in the joists and plates;

(5) the trial judge erred in concluding that Drexel London owed a duty to advise Lavender Bay of matters of which it had no actual knowledge;

(6) the trial judge erred in finding a causal connection between Drexel London's failure to inform Lavender Bay of the substitution of oregon for jarrah and related matters and the injuries suffered by the injured claimants;

(7) the trial judge erred in failing to find that Drexel London's design of the balcony was defective because it allowed for moisture to be trapped between the southern plates and the steel support beam;

(8) the trial judge was correct to dismiss the claim against the Strata Company;

(9) the trial judge erred in concluding that the City owed a common law duty of care to the injured claimants; and

(10) the trial judge did not err in failing to make a Sanderson or Bullock order.

296 More particularly, in the Drexel London appeal I would uphold grounds of appeal 2, 3 and 6; dismiss grounds 1, 4 and 5; uphold the notice of contention of the injured claimants and the Strata Company; dismiss Halpern Glick's notice of contention; and allow the appeal in part.

297 In relation to the injured claimants appeal, I would uphold grounds 2 and 4; dismiss grounds 1 and 3; uphold the Strata Company's notice of

contention; dismiss Halpern Glick's notice of contention; uphold Halpern Glick's cross-appeal; and allow the appeal in part.

298 I would allow the appeal by the City. For those injured claimants to whom Drexel London and Halpern Glick are both liable in negligence, I would apportion liability between them on a 50:50 basis. In those cases where only Halpern Glick was sued, there can be no order for contribution. I would hear from the parties on the terms of the orders necessary to give effect to these reasons and on costs.

300 KENNETH MARTIN J: I have had the privilege of reading the draft reasons of McLure JA with which I agree, save in relation to the City of Fremantle's (the City) appeal on ground 1 (duty of care), which I would dismiss. The consequence of my preferred dismissal of ground 1 of the City's appeal in overall context, would be that the City's liability to the injured plaintiffs remains unaltered by the appeal.

301 I fully agree with McLure JA's analysis that the trial judge's apportionment as between the architects, Drexel London (a firm), and the City on the basis of a 70% responsibility to the City, was manifestly unreasonable and should be reassessed as between them. But, bearing in mind that a major consequence of the appeals will now establish a finding of common law negligence as against engineers Halpern Glick Pty Ltd (Halpern Glick), the overall apportionment of liability exercise as between these three defendants will need to be redone. On my analysis, an equal apportionment of responsibility as between the City, Drexel London and Halpern Glick would be appropriate, having regard to their respective contributions towards the injuries sustained by the plaintiffs. It is necessary for me to state my own reasons for reaching this view.

302 On New Year's Eve 1996, some 35 of the guests at a private celebration were gathered together on a first floor outside balcony of a strata unit at Fremantle. There ensued a catastrophic collapse of the balcony - which plunged approximately 5 m to ground, causing physical injury to the guests, who had only moments previously been gathered together on the outside balcony.

303 The 35 injured plaintiffs' cases proceeded to trial in mid-2006, occupying 11 hearing days. The trial judge delivered his reasons for judgment in November 2006, one month short of a 10 year interval between the balcony collapse incident and judgment: Gove v Black

[2006] WASC 298 (Templeman J). The case had gone to trial only on the issue of liability - albeit involving all 35 plaintiffs by their separate suits.

304 An owner/builder, Lavender Bay Pty Ltd (Lavender Bay), had been responsible for conversion of the Old Soap Factory at Fremantle to eight strata titled units. The newly created units were substantially complete by about November 1982 - the higher level units having outdoor balconies constructed as part of the conversion. Lavender Bay had engaged a registered builder, Mr Bumstead, to supervise its works.

305 Following the issue of separate strata titles in respect of each of the strata units created for the Old Soap Factory conversion, Lavender Bay sold them off to various purchasers.

306 The strata unit in question, No 1, was purchased by the second defendant, Ash Investments Pty Ltd (Ash Investments), in 1984 from Lavender Bay. Ash Investments was trustee of the Black Family Trust, and the first defendant, Mr Black, became the occupier of the strata unit. He was the host of the 1996 New Year's Eve party when the outdoor balcony of his unit, on which many of his guests were gathered, collapsed.

307 The injured plaintiffs did not pursue Lavender Bay, since it had gone into liquidation after completion and sale of the units in the early 1980s. Mr Bumstead had died prior to trial. The trial judge was careful in his analysis not to finally decide whether Lavender Bay or Mr Bumstead (or anyone involved in the construction of the balcony) had been responsible for the catastrophic collapse - following Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd [2001] NSWCA 461; (2001) 53 NSWLR 626 [86].

308 Nevertheless the encountered phenomenon of a catastrophic balcony collapse involving injury to 35 persons in circumstances where a builder no longer exists to be held accountable and the supervisor is deceased, is disconcerting. Viewed from a broader policy perspective, any scenario of 'bottom of the harbour' building companies erecting shoddy or dangerous buildings, then departing to escape all subsequent responsibility, is intolerable. A catastrophic balcony collapse involving physical injury to 35 persons, is something more in line with the expectations of building standards in countries other than Australia.

309 Broadly speaking, the injured plaintiffs in their respective actions at trial pursued six groups of defendants. Groups one to three included:

• Mr Black, as first defendant, who was occupier of the strata unit and host of the party when the first floor outdoor balcony, on which 35 of his guests were standing, collapsed. Mr Black had been occupier of the premises since 1984 as a tenant of the second defendant.
• Ash Investments, as second defendant, as owner of the strata unit purchased in 1984 from then owner/builder Lavender Bay. Ash Investments acted as trustee of the Black Family Trust.
• The body corporate for Strata Plan No 11175, namely the Owners of the Old Soap Factory (the Strata Company), as third defendant.

310 The injured plaintiffs' cases at trial against the occupier and registered proprietor (first and second defendants) failed, on a basis that there was insufficient evidence that they knew or should have been aware that there was any particular risk or danger, as regards the structurally insecure condition of the balcony - due to the unobserved rotting of some timber components before 31 December 1996. There was no appeal against the trial judge's dismissal of the cases brought by the injured plaintiffs against the owner and the occupier.

311 The plaintiffs' action against the Strata Company was also dismissed by the trial judge. The cause of action raised a case of strict liability upon an alleged breach of statutory duty, said to confer a private right of action upon the injured plaintiffs, by reason of the breach of s 35(1)(c) of the Strata Titles Act 1985 (WA) (as amended) (the New Strata Titles Act), and reliant upon principles established by the High Court of Australia since O'Conner v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464, 477 - 478 (Dixon CJ).

312 It is a curiosity that the injured plaintiffs' strict liability case for breach of statutory duty was grounded upon a bizarre (but legally correct) premise (and unchallenged on appeal) that a private outdoor first floor balcony area of the strata title unit which had collapsed, was to be assessed as 'common property' - in accordance with the definition of that term under the New Strata Titles Act - and thereby calling into relevance the managerial involvement of the Strata Company, as regards what was then assessed as common property.

313 At [520] of the trial judge's reasons, he rejected the plaintiffs' claim against the Strata Company, on the basis that:

I do not consider that the Strata Company was obliged to have an inspection carried out by a person whose level of expertise was such as to be able, not only to recognise that oregon had been used in the balcony, but also to appreciate the significance of that fact [520].

314 The injured plaintiffs challenged the trial judge's exculpation conclusion as regards the Strata Company on the appeal. That was resisted by the Strata Company. But the Strata Company went further, to contend by notice of contention, that the trial judge had been in error in concluding that s 35(1)(c) of the New Strata Titles Act conferred any private rights of action for breach of statutory duty either generally, or at least in respect of the injured plaintiffs who had brought suit for their injuries on the basis of being visitors to the strata unit, when the balcony had collapsed on 31 December 1996. The learned trial judge found it unnecessary to consider that legal question. I agree with McLure JA that the Strata Company's notice of contention must succeed on the basis that there is no private right of action for statutory duty arising in favour of the injured plaintiffs by reason of s 35(1)(c) of the New Strata Titles Act.

315 The injured plaintiffs successfully pursued as fourth defendant, the City, based upon the alleged breach of the City's common law duty of care said to have been owed to the plaintiffs to inspect the converted and completed strata units for consistency as between what had been built and the building plans and specifications which the City had approved. The trial judge's findings against the City are at [331] - [376] of his Honour's reasons.

316 A Certificate signed off by the City as to the above issue, is dated 8 December 1982, some 14 years prior to the balcony collapse incident. The terms of the City's Certificate at [332] of his Honour's reasons, relevantly state that the City:

1. The building shown on the plan has been inspected and that it is consistent with the building plans and specifications in respect thereof that have been approved by the Local Authority.
2. The building, in the opinion of the local authority, is of sufficient standard and suitable to be divided into lots pursuant to the Strata Titles Act, 1966.

317 The injured plaintiffs' case against the City, raising as it did an allegation of common law negligence (not breach of statutory duty), was that the Certificate issued under s 5(6)(c) of the Strata Titles Act 1966 (WA) (the 1966 Strata Act) upon completion of the units, was false - as regards the issue of consistency.

318 The injured plaintiffs contended at trial that there had been no sufficient inspection to justify the assertion in the Certificate that the completed building resulting from the conversion of the Old Soap Factory was 'consistent' with the building plans and specifications approved by the City, since there had been an unauthorised substitution of the specified hardwood (jarrah), with the softwood (oregon) for the timber joists and plates that were used as the beams in the outdoor balconies.

319 The common law negligence case, as contended for on behalf of the injured plaintiffs against the City, was that a reasonably careful inspection of the Old Soap Factory, conducted to ascertain that it was consistent with approved plans and specifications, would have revealed that wooden joists and plates, with which the outside balconies had been constructed by Lavender Bay, were of oregon not jarrah, contrary to what had been specified and approved by the City in the specifications.

320 Prior to issue of the Certificate in December 1982, the City's inspector, a Mr Monaco, had carried out a limited inspection of the Old Soap Factory conversion. Mr Monaco's inspection did not reveal that oregon timber had been substituted for jarrah in the balcony joists and plates, in lieu of the specified jarrah. Had Mr Monaco noticed the substitution of softwood for hardwood, his evidence at trial was that he would not have regarded such a substitution as appropriate. A nomination of a hardwood timber, ie jarrah, was in the specifications. This was a structural matter. So much was uncontroversial at trial and on appeal.

321 What was more controversial at trial, however, was the extent of any inspection required, prior to the City's certification under s 5(6)(c) of the 1966 Strata Act. The trial judge records Mr Monaco's observation that 'it would not be possible to carry with me the plans and specifications for a building as large and as complex as the Old Soap Factory' [347]. Thus, the inspection was made without the plans and specifications. Like the trial judge, my assessment, were I required to make a determination upon the issue of breach of a (found) duty of care, would be that such a response is wholly inadequate on behalf of the City. However, before breach analysis even arises, anterior considerations over determining an existence or otherwise of a common law duty of reasonable care by the City to the injured plaintiffs needs to be resolved. That is the significant issue of the appeal that I address, below.

322 The fifth defendant in the litigation was the architectural firm, Drexel London, retained by Lavender Bay, against whom the trial judge found that liability had been established for common law negligence, essentially on a two-fold basis, as articulated at [246] - [250] of his Honour's reasons. This was on the basis of a design deficiency as regards failure to incorporate in the design of the balconies a sufficient degree of 'redundancy' (in a context of the present case - meaning essentially, a failure to allow for some surplus load-bearing capacity in the balcony structure), and as regards certain failures associated with the unauthorised substitution of oregon for jarrah: see [208] and [285] - [289] of his Honour's reasons.

323 His Honour dismissed the injured plaintiffs' claim in common law negligence against the sixth defendant, consultant engineers, Halpern Glick, who had been retained by Drexel London to assist in limited aspects of the Old Soap Factory conversion project. The injured plaintiffs had contended against Halpern Glick, that it had failed to identify that the design of the balcony failed to provide stabilising bracing for the (vertical) central column of the balcony and so, in effect, to supply a required degree of redundancy that was missing in the design: see his Honour's reasons [291] - [330], especially at [295](b), where his Honour said:

[I]t is true that the design of the balcony depicted in drawing 15 made no express provision for bracing the central column of the balcony in such a way as to connect the column to the northern wall of the building [297].

It is clear that when Mr Welch [of Halpern Glick] visited the site on 8 April 1982, he appreciated the need to provide this link. On his sketch he noted that the central column was to be 'tied back by joist'. I accept the evidence of Mr Blake [of Halpern Glick] that this would have been an acceptable method of securing the central column. The note therefore served as an advice to Mr Bumstead that the column should be secured in this way [298]. (my emphasis in italics)

In these circumstances, I consider that Halpern Glick cannot be held responsible for the fact that the design of the balcony did not include any detail for the tying back of the central column to the north wall of the building. The claim against Halpern Glick must therefore be dismissed [302].

324 But, in my assessment, the notion of the (vertical) central column for the balcony being 'tied back by joist', in circumstances where jarrah joists (which became oregon joists) were the horizontal members which directly connected from the exterior wall of the unit to the vertical central column of the balcony, cannot be accepted as providing any relevant form of bracing or securing. In fact, the obscure notion of something being 'tied back by joist' thereby providing bracing and, thus, a required measure of additional load-bearing capacity for the outside wooden joist constructed balcony - presents to me as a complete physical non sequitur.

325 There was no challenge at the appeal to the presence of this acknowledged design deficiency as regards a missing redundancy factor, concerning drawing 15. The design deficiency, as regards a need for bracing of the vertical central column of the balconies, was not addressed sufficiently or at all by the central column (somehow?) being 'tied back by joist'. A physical connection by joist already existed. What was required was some additional securing or bracing mechanism for the central column. Mr Welch, by his sketch (prepared when he visited site on 8 April 1992, as the balconies were nearing completion), did not provide any 'link' that furthered or addressed the issue of need for bracing or securing of the central column of the balcony. As a result, the appeal against Halpern Glick must be allowed.

326 That broadly summarises the claims by the plaintiffs against the six classes of defendant at trial.

327 As to the issue of causation of damage, the finding by the primary judge (at [94]) dealing with the causes of the collapse of the balcony was not challenged at the appeals. His Honour concluded:

The primary causes of the collapse were therefore:

(1) the use of oregon for the joists and supporting plates; and

(2) the inadequate design of the southern supporting structure [94].

I also refer to his Honour's surrounding observations at [84], [89] and [92] on that issue.

328 With those observations, I am able to address ground 1 of the City's appeal, challenging the trial judge's conclusion that a common law duty of reasonable care was owed by the City to the injured plaintiffs, arising out of the circumstances in which the City's Certificate of 8 November 1982 had been issued.

329 The common law duty of reasonable care, as is pursued by the plaintiffs against the City, is formulated on a basis that it arises from the circumstances in which, as at 8 November 1982, the City, pursuant to s 5(6)(c) of the 1966 Strata Act, issued a Certificate in the terms I have set out, some 14 years prior to the collapse incident.

330 The following considerations, from the overall factual circumstances of the December 1996 incident, assessed in the context of the statutory framework of the 1966 Strata Act as a whole, together bring me to a conclusion that ground 1 of the City's appeal should be dismissed. Like the trial judge, my view is that the City, on analysis, did owe a common law duty of reasonable care to the injured plaintiffs, who were together present as visitors gathered on the first floor outside balcony of strata unit No 1, on New Year's Eve 1996:

(a) There is no difficulty in a conclusion that the injured plaintiffs fall within a foreseeable class of person to whom physical injury of the kind sustained would be envisaged by the City, at the time the Certificate was issued in November 1982. Foreseeability as to the harmed plaintiffs as a class is essential. But that of course is not the sole ingredient in making good a duty of reasonable care.

(b) The range of foreseeable plaintiffs likely to sustain injury by harm of the character encountered here, embraces, as a class, visitors to the strata unit, injured when the outdoor balcony suddenly gave way. That class of plaintiff is not unduly broad or ill defined.

(c) The loss sustained here is in the character of personal injury by trauma. This is not a case of pure economic loss - to which more onerous or constricting policy considerations may apply.

(d) Unlike for the failed case against the third defendant (the Strata Company), which was based upon arguments of strict liability for breach of a private statutory duty said to arise from the New Strata Titles Act, the plaintiffs do not contend for any private statutory duty in their favour as against the City. Nor, in prevailing circumstances, would I have found such a private cause of action in their favour, arising under that Act. The ramifications of such a conclusion are so significant (ie strict liability), that legislation argued to found such private rights of action needs to be assessed as sufficiently explicit to render the conclusion as to a private right of action, and as to the class of person to whom such a private duty is owed, very clear. That is not the case with s 5(6)(c) of the 1966 Strata Act.

Absence of a private right of action for strict liability in the injured plaintiffs is another relevant consideration in a distinct exercise of ascertainment of a common law duty of reasonable care. But, again, that aspect is not, of itself, determinative of the issue. Axiomatically, the lesser threshold of (reasonable) care raises different considerations. The statute is the setting for a common law duty, rather than its source: see Stuart v Kirkland-Veenstra [2009] HCA 15 [130] (Crennan and Kiefel JJ).

(e) There can be circumstances in which a common law duty of reasonable care is excluded by statute, either explicitly, or implicitly: see Sullivan v Moody (2001) HCA 59; (2001) 207 CLR 562. This is not such a case.

(f) Nor does this case present as a scenario of omission or nonfeasance by a public authority (in the position of the City) - a factual consideration highly relevant to the ascertainment of a common law duty of reasonable care, in circumstances where a statutory power or function has been conferred, but is not exercised. To the contrary, the present is a more routine case over positive acts of misfeasance raised as against the City. Cases of misfeasance against public authorities - where powers, functions or duties have been actively exercised, are less problematic in terms of the ascertaining of an existence of a duty of reasonable care by a public authority: Stuart v Kirkland-Veenstra at [117] - [118] (Gummow, Hayne and Heydon JJ).

(g) In reviewing the global statutory framework which sets the scene for the evaluation of a common law duty, it must be accepted that s 5(6)(c) of the 1966 Strata Act is not wholly concerned from a policy perspective with the issue of public safety. But that is not to say that the issue of public safety does not remain an inseparable consideration, inherent in any process of building inspection and the next stage of certification by a public body - for consistency as between approved building plans and specifications with the finished product. Public safety is not a consideration to be undersold in an analysis of evident purposes underlying s 5(6)(c), as the City, in effect, submitted at the appeal. Public safety is, in my view, a consideration inherent in the regulatory context for elevated structures that will potentially be used for human habitation for generations of occupant. Safety in occupation, over time, is an important component policy consideration, also to be weighed in an overall analysis of the statutory framework of the 1966 Strata Act, as a whole.

(h) Factually, what falls for consideration at this level of the ascertainment of a common law duty of reasonable care, are all relevant circumstances surrounding the inspection of the building, from a perspective of ascertaining the consistency of the constructed building against the plans and specifications, earlier submitted to and approved by the City. The issue of the Certificate by the City was a culmination of a series of preceding acts, all to be evaluated. This calls for a perspective wider than a bare evaluation of falsity in aspects of the Certificate issued by the City.

(i) It is correct that there has been no suggestion here that the injured plaintiffs, as visitors to the strata unit, placed specific or knowing reliance upon the City's Certificate - issued some 14 years previous - concerning consistency of the completed building with plans and specifications as lodged with and approved by the City. Nevertheless, in cases of this genre, absence of direct reliance is no obstacle to finding a duty of reasonable care. No doubt each injured visitor made an assumption in a very general sense by entry, that public authorities responsible for monitoring the conversion of the building and its plans would have competently gone about completing and discharging their responsibilities. This is not a case of negligent misstatement against the City, like MLC v Evatt [1968] HCA 74; (1968) 122 CLR 556 or Shaddock and Associates Pty Ltd v Parramatta City Council [No 1] [1981] HCA 59; (1980-81) 150 CLR 225 raising direct reliance requirements, as regards advice. Rather, this is a case of orthodox misfeasance in the active exercise of a public power. Nor is it a case of pure economic loss where, as I have observed, reliance, particularly in a circumstance of prevailing vulnerability in a plaintiff, is material as a consideration. This case presents more, in my view, as of an orthodox class as was considered by Mason J (as he then was) in Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424, at 464, where his Honour observed:

Reliance or dependence in this sense is in general the product of the grant (and exercise) of powers designed to prevent or minimize a risk of personal injury or disability, recognized by the legislature as being of such magnitude or complexity that individuals cannot, or may not, take adequate steps for their own protection. This situation generates on one side (the individual) a general expectation that the power will be exercised and on the other side (the authority) a realization that there is a general reliance or dependence on its exercise of power.

(j) The formulation of the precise duty of reasonable care that the injured plaintiffs contend was owed to them by the City here, is a duty to inspect the building for the purpose of determining that it was consistent with the approved plans and specifications. That formulation is not in terms so general as to be unhelpful, or at too high a level of abstraction: Cole v Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) CLR 469 [57], [81] (per Gummow & Hayne JJ).

(k) Nor, in my assessment, is a converse parameter infringed in that formulation of the duty. The formulation does not, in my view, carry with it a level of narrowness or confinement so as to, in effect, pre-empt a later application of the criterion of reasonableness under the Shirt calculus in a manner which is fair to the City, at the stage of breach evaluation, once this duty of reasonable care is found; compare par 85 of the joint reasons of Gummow, Hayne and Heydon JJ, in Kirkland-Veenstra.

At a stage of breach analysis, numerous distinct considerations arise, including magnitude of risk, the response to the risk, as well as considerations applicable to the limited resources of a public authority, as evaluations of fact. But I see no 'virtually automatic' 'slide' into a finding of negligence (per McHugh J in Tame [99]) in the formulation of this duty of reasonable care. In an assessment of all circumstances surrounding the inspection and ensuing issue of the Certificate by the City, it no doubt would be properly weighed in consideration that the City's inspector did not take with him the relevant plans and specifications to the site of the Old Soap Factory as he made the inspection. His capacity to inspect effectively was thereby fettered from the outset, rendering it difficult to argue that reasonable efforts were made.

The unauthorised substitution of jarrah hardwood timber with oregon softwood that occurred, created a significant structural deficiency in the constructed outdoor first floor balcony. That unauthorised balcony timber substitution should have been apparent to an inspector's naked eye, during a competent inspection. A comparative analogy to the obviousness of the difference between red wine and white wine, as was invoked by Professor London at trial (recorded by the trial judge at [223] of his reasons), remains illuminating for me as to what a competent inspection by the City's inspector ought to have brought into focus.

There remains with this duty as formulated, in my view, sufficient latitude and scope at a breach level analysis applying the Shirt calculus, for a court to recognise and excuse (as is appropriate) reasonable, albeit imperfect, endeavours towards meeting this formulated duty of reasonable care by the City, within its overall inspection and certification conduct.

(l) On my analysis (bearing in mind capacity for appeal against a refusal by the City to issue the Certificate), refusal of the Certificate by the City, grounded upon unauthorised substitution of oregon timber for jarrah as a structural issue, was likely, in my assessment to have been a significant negative for Lavender Bay. Refusal would have interrupted the processes pursuant to which separate certificates of title were sought to be obtained by Lavender Bay, in the course of its redevelopment and strata titling subdivision by conversion of the Old Soap Factory to individual strata units with separate certificates of title. The City appears to have lacked a specifically conferred power, under the 1966 Strata Act, to directly compel a timber substitution by Lavender Bay, of the unauthorised softwood timber. Nevertheless, I assess the likely commercial effects of a denial by the City of the Certificate, on this basis, to be adverse and significant for Lavender Bay's commercial interests as a developer. Nor is it easy to envisage how any appeal by Lavender Bay could hope to succeed against the City's denial of a Certificate, in circumstances where the adverse structural ramifications of an unauthorised substitution of oregon for jarrah was properly articulated.

Essentially then, the City in commercial terms held, in my assessment, a 'whip-hand' here upon a refusal of its Certificate, until the unauthorised substitution of softwood for hardwood issue was properly addressed and corrected by Lavender Bay. This afforded the City, in my view, the required element of potential control to generate a correction of the unauthorised balcony timber situation which had arisen. Existence of the element of effective control in the City over the problematic issue: see Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [151] (Gummow and Hayne JJ); and Kirland-Veenstra [113], [114] (Gummow, Hayne and Heydon JJ), in circumstances where power is being affirmatively exercised by the City, favours the ascertainment of this duty of reasonable care in the City, towards these injured plaintiffs.

(m) Reasonableness is now another vital touchstone in any assessment of the appropriateness of an imposition of a duty of reasonable care, as formulated: (see Tame v The State of New South Wales [2002] HCA 35; (2002) 211 CLR 317 [9], [12], [14], [35] (Gleeson CJ), [109] (McHugh J), [185] (Gummow & Kirby JJ), [272] (Hayne J), and [331] (Callinan J)).

In weighing considerations of reasonableness surrounding the potential imposition of this duty of reasonable care, in the overall factual and statutory surrounding contexts, I factor in a significant and obvious potential here for grave injury to anyone subjected to the trauma of a 5 m balcony collapse. It is fortunate indeed that this incident is not one where the court is faced with a more distressing scenario of deaths or catastrophic injuries to multiple persons, in the wake of such a balcony collapse - a wholly unacceptable outcome as regards building standards in Australia, and against which dedicated public competence in the exercise of statutory powers cannot be an unreasonable imposition.

331 These are my reasons for dismissing ground 1 of the City's appeal and as to my correlatively preferred equal apportionment of responsibility as between the City, Halpern Glick and Drexel London.

332 Otherwise, I entirely agree with the reasons of McLure JA.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DREXEL LONDON (a firm) -v- GOVE (BLACKMAN) [2009] WASCA 181 (S)

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : GOVE -v- BLACK & ORS [2006] WASC 298

File No : CIV 2375 of 1997, CIV 2370 of 1997, CIV 2371 of 1997, CIV 2373 of 1997, CIV 2374 of 1997, CIV 2376 of 1997, CIV 2377 of 1997, CIV 2378 of 1997, CIV 2381 of 1997, CIV 2382 of 1997, CIV 2398 of 1997, CIV 2411 of 1997, CIV 2412 of 1997, CIV 2413 of 1997, CIV 2414 of 1997, CIV 2415 of 1997, CIV 1202 of 1998

1 McLURE P: These reasons contain orders giving effect to the reasons for judgment in this matter delivered on 21 October 2009. On that date I ordered the parties to file minutes of proposed orders for which they contended. The orders were complied with.

2 Under cover of a letter dated 25 November 2009, the court provided to the parties a minute in each appeal which collected together all the proposed and contested orders. Because of delays in being able to re-convene the coram, the parties agreed to make their oral submissions before me following which the orders would be made by the coram on the papers, including the transcript of oral submissions.

3 However, at the conclusion of oral submissions on 7 December 2009, only one issue was in contest. The parties consented to me determining that issue and formally making the orders in each appeal. The issue in contest is in the Drexel London appeal (CACV 16 of 2007). Halpern Glick sought an order that it pay one third of Drexel London's costs of the appeal to be taxed. Drexel London sought an order that Halpern Glick pay 40% of those costs. Having regard to the extent of the issues in contest between those two parties and the outcome, my assessment is that the order sought by Halpern Glick is appropriate.

4 The parties will be provided with an advance copy of these reasons before their delivery in open court on Wednesday 16 December 2009 at 9.30 am. If any party wishes to contend that any order hereunder is inconsistent with the oral submissions made on 7 December 2009, they should advise the Court of Appeal office in writing, with notice to all parties by 9.30 am on Monday 14 December 2009. In the absence of any such notice, I will on 16 December 2009 make the following orders:

CACV 114 of 2007 - Injured claimants appeal

(1) The appeal as against the sixth respondent be allowed.

(2) The appeals as against the first, second, third, fourth and fifth respondents be dismissed.

(3) The sixth respondent's cross appeal as against the fourth respondent be allowed.

(4) The sixth respondent's cross appeal as against the first and fifth respondents be dismissed.

(5) The first respondent's notice of contention be upheld.

(6) The judgment of Templeman J entered on 6 July 2007 be varied as follows:

(a) paragraph 4 be set aside and in lieu thereof judgment be entered as follows:

(1) judgment be entered for the plaintiffs against the fifth and sixth defendants for damages to be assessed;

(2) as between the fifth and sixth defendants, the damages are to be paid as to 50% by the fifth defendant and 50% by the sixth defendant;

(3) the plaintiffs' claims against each of the first, second, third and fourth defendants are dismissed;

(b) paragraph 5 be set aside and in lieu thereof judgment be entered as follows:

(1) judgment is to be entered for the plaintiff against the fifth defendant, for damages to be assessed;

(2) the plaintiff's claims against each of the first, second, third and fourth defendants are dismissed;

(3) judgment be entered for the fifth defendant in the third party proceedings;

(4) the third party do contribute to the extent of 50% of any damages awarded to the plaintiff following an assessment of the plaintiff's damages pursuant to paragraph 5(1) above and the costs of that assessment;

(c) paragraph 6 be set aside and in lieu thereof judgment be entered as follows:

6. In the Graham Action the plaintiff's claims against the first, second, third and fourth defendants are dismissed;

(d) paragraph 7 be set aside and in lieu thereof judgment be entered as follows:

7. The fifth and sixth defendants, jointly and severally, do pay the plaintiffs' costs of the Group A and Group B Actions to be taxed in accordance with the procedure and on the basis set out in paragraph 9;

(e) paragraph 8 be set aside and in lieu thereof judgment be entered as follows:

(1) the fifth defendant do pay the plaintiff's costs to be taxed in accordance with the procedure and on the basis set out in paragraph 9;

(2) the third party do contribute to the extent of 50% of any costs payable by the fifth defendant to the plaintiff pursuant to paragraph 8(1) above;

(f) paragraph 10 be set aside and in lieu thereof judgment be entered as follows:

10. The fifth and sixth defendants, jointly and severally pay the costs of the Group A plaintiffs of obtaining a transcript of the trial, such costs to be apportioned between the Group A plaintiffs in accordance with the Formula;

(g) paragraph 11 be set aside and in lieu thereof judgment be entered as follows:

11. As between the fifth and sixth defendants, the Group A and Group B plaintiffs' costs are to be paid as to 50% by the fifth defendant and 50% by the sixth defendant;

(h) paragraph 12(1) be varied by the addition of a new sub-paragraph (d) as follows:

(i) paragraph 12(3) and 12(4) be varied so as to provide:

(3) Subject to paragraph (2) above, the costs of each of the first, second, third and fourth defendants are to be taxed as a single set of costs;

(4) Where costs were incurred by the first, second, third or fourth defendants in relation to individual claims, those costs shall be paid by the plaintiffs concerned;

26. The fourth defendant do pay the fifth defendant's costs of those proceedings insofar as those costs may have increased the fifth defendant's costs of the trial;

(1) The fifth defendant's contribution notices dated 23 December 1998 and 18 January 1999 against the first defendant be dismissed;

(2) The fifth defendant do pay the costs of the first defendant of those proceedings insofar as those proceedings may have increased the first defendant's costs of the trial to be taxed;

(1) There be judgment for the fifth defendant against the sixth defendant in the fifth defendant's fourth party/contribution proceedings against the sixth defendant;

(2) As between the fifth defendant and the sixth defendant there be no order as to costs in the fifth defendant's fourth party/contribution proceedings against the sixth defendant and the fifth defendant's third party proceedings in the Drexel Action;

(1) The sixth defendant's contribution notices dated 13 October 2004 against the first, second, third and fourth defendants are dismissed;

(2) The sixth defendant do pay the costs of the first, second, third and fourth defendants of those proceedings insofar as those costs may have increased any of those defendants' costs of the trial to be taxed.

(7) The appellants pay the first, second, third, fourth and fifth respondents' costs of the appeal including all reserved costs to be taxed.

(8) The sixth respondent pay 40% of the appellants' (other than the eleventh appellant's) costs of the appeal to be taxed.

(9) The sixth respondent pay the fifth respondent's costs of the cross appeal insofar as those costs may have increased any of the fifth respondent's costs of the appeal, to be taxed.

(10) The fourth respondent pay a third of the sixth respondent's costs of the cross appeal insofar as those costs may have increased the sixth respondents' costs of the appeal to be taxed.

(11) The appellants pay the first respondent's costs of its notice of contention, including all reserved costs, to be taxed.

(12) The sixth respondent pay the first respondent's costs of the sixth respondent's cross appeal, including all reserved costs, to be taxed.

1. The appellant's appeal against the first to tenth respondents and twelfth to seventeenth respondents be dismissed.
2. The appellant's appeal against the eighteenth respondent be allowed and the judgment of Templeman J entered 6 July 2007 be amended as provided for in paragraph 6 of the orders made in CACV 114 of 2007.
3. The notice of contention of the first to tenth respondents and of the twelfth to sixteenth respondents be upheld.
4. The notice of contention of the seventeenth respondent be upheld.
5. The notice of contention of the eighteenth respondent be dismissed.
6. The appellant pay 70% of the first to tenth respondents and the twelfth to sixteenth respondents' costs of the appeal to be taxed as one bill.
7. The appellant pay the seventeenth respondent's costs of the appeal in relation to ground 4 to be taxed.
8. The appellant pay the seventeenth respondent's costs of the notice of contention of the seventeenth respondent to be taxed.
9. The eighteenth respondent pay one third of the appellant's costs of the appeal to be taxed.
10. There be liberty to apply.

CACV 20 of 2007 - City of Fremantle's appeal

1. The appeal be allowed and the judgment of Templeman J entered 6 July 2007 be amended as provided for in paragraph 6 of the orders made in CACV 114 of 2007.
2. The first to seventeenth respondents pay the appellant's costs of this appeal to be taxed.
3. The first to seventeenth respondents and the eighteenth respondent do each pay one half of the appellant's costs of the hearing held before Templeman J on 23 March 2007 to be taxed.
4. The first to seventeenth respondents each be granted an indemnity certificate pursuant to s 10(1) of the Suitors' Fund Act 1964 (WA).