Turjman v Stonewall Hotel Pty Ltd

Judgment 1BATHURST CJ and ALLSOP P: We have had the advantage of reading the judgments of Giles JA and Sackville AJA. We agree with Giles JA. Because of the different views expressed by Sackville AJA, we would add the following remarks. 2The causal relationship between the negligent failure to provide Mr Byatt with all relevant documentation and the collapse of the ceiling is to be analysed by reference to the Civil Liability Act 2002 (NSW), s 5D. There are two aspects to this analysis: first, factual causation under s 5D(1)(a); and secondly, depending upon the answer to this first question, either the ascertainment of scope of liability under s 5D(1)(b) or the imposition of responsibility under s 5D(2). 3The factual causation here must start with Mr Byatt. It is he who should have been given the documentation and information. The primary judge found that Mr Byatt would have retained a vibration expert: see [126]-[127] of the reasons. If that were the determinative causal framework of analysis, the plaintiff failed to establish factual causation because it was not shown that any such vibration advice would have put a structural engineer on notice, either of the problem of the inadequate affixation of the ceiling, or of the risk of deterioration of any affixation of the ceiling. Towards the end of the argument Mr Campbell SC, in his customary frank way, all but conceded that: 27 September 2011, transcript p 49 1 28 to p 51 1 6, especially p 51 11 1-4. 4If, however, the approach that Mr Byatt would have taken would not conform with proper engineering practice, that causal analysis based on Mr Byatt's approach may not be determinative. A clear basis would exist for the operation of s 5D(2) to impose liability on Stonewall if a reasonable engineer in Mr Byatt's position would have necessarily engaged in investigation of the integrity of the ceiling. There is also much to be said for the proposition that the common law also would not permit the negligence of a third party to determine the outcome of the causal analysis in such circumstances: cf Elayoubi v Zipser [2008] NSWCA 335. 5Mr Campbell was forced back to the position that good engineering practice necessarily required that Mr Byatt, either through a reading of the material that he should have been given, or otherwise, should not have assumed anything about the structural integrity of the ceiling and should have appreciated that the only course reasonably open was to investigate the ceilings. 6The primary judge found that Mr Byatt was not aware of the terms of the letter from South Sydney Council of 18 June 2002, or of the email from Mr Harper to Stonewall Hotel Pty Ltd ("Stonewall") of 11 June 2002. It was the failure by Stonewall to supply the latter email to Mr Byatt, which led to the conclusion by the primary judge that Stonewall had breached its duty of care to the appellant. 7Mr Byatt in his witness statement (Blue 347-349) gave the following evidence: "7 I did not receive any advice or information, nor make any observation, that would suggest that the loading to either floor would be dynamic or that either floor had undergo noticeable deflection whilst in use. Had I been informed that the loading was dynamic, I would have recommended that a vibration consultant be engaged to check the implications of any potential resonance arising from those dynamic loads. ... 22 When preparing my report of 12 August 2002, I was not provide with a copy of the email from Mark Harper dated 11 June 2002, a copy of which is annexed hereto and marked ' C '. If I had been provided with a copy of this email, I would have arranged for a vibration expert to test the loading capacities of the floors and consequent deflections." 8It was not suggested to Mr Byatt in cross-examination that the approach that he said he would have adopted on that hypothesis was contrary to what would have been proper engineering practice. Further, that approach was consistent with at least one of the steps that the three expert engineers, Messrs Fisher, Barry and Alden, said was appropriate. Mr Fisher in his report of 24 March 2006, stated that one of the steps Mr Byatt should have taken was to advise the client to obtain the services of a specialist vibration consultant to assess the adequacy of the suspended floor (report par 12.6). Mr Barry expressed a similar view in his second report (report 28 May 2009 par 7.6.5). Mr Alden expressed the same view (report of November 2007 pars 4.5.10-4.5.11). 9Giles JA and Sackville AJA have set out in detail the evidence given by the experts in their reports and during the course of the hearing. It is apparent from their evidence that the critical difference between the experts was that Mr Fisher and Mr Barry would have proceeded immediately to test the adequacy of the ceiling, whilst Mr Alden would have retained a specialist vibration consultant and determined the further steps to be taken in light of that consultant's report. 10As Giles JA pointed out, the steps that Mr Byatt, or the hypothetical engineer acting in accordance with proper engineering practice was required to take, must be considered in light of the retainer given to the engineer, namely, to certify the structural soundness and capacity to withstand likely loadings. It was not suggested by the appellant that the retainer was inadequate as distinct from the claim that the engineer was not supplied with all the information necessary to properly perform that retainer. Further, as the experts agreed (see Giles JA at [99]) an independent investigation of the ceiling was not within the scope of the requirements of South Sydney Council. 11In these circumstances, the views taken by Mr Alden as to what was necessary in accordance with proper engineering practice to fulfil the retainer in circumstances where the engineer was aware of the contents of the Harper email, could not be said to be contrary to proper engineering practice. The unchallenged evidence of Mr Byatt was that he would have adopted the same approach. 12In these circumstances and for the reasons given by Giles JA, the plaintiff and the appellants did now show and have not shown a relevant causal connection between the negligent omission of Stonewall in failing to supply the Harper email to Mr Byatt and the failure of the ceiling for the purposes of s 5D(1)(a). There is no basis, in our view, to conclude under s 5D(2) that factual causation was established and that responsibility for the harm should be imposed on the respondent. 13BEAZLEY JA : I have had the advantage of reading in draft the reasons of Giles JA, the additional joint reasons of Bathurst CJ and Allsop P and the reasons of Sackville AJA. I agree with the reasons of Sackville AJA and the orders his Honour proposes. In particular, I would emphasise, as Sackville AJA has, that the information in the respondent's possession was such that a proper response required attention to be given, not only to " bounce movement ", but to other aspects of the building, having regard to its age, the materials used and their deterioration over time. That was not done and accordingly I am of the opinion that the respondent breached its duty of care to the appellants. 14GILES JA : The Stonewall Hotel in Oxford Street, Darlinghurst, was originally a bank building. In late 1993 the building was substantially renovated, including the installation of fire rated suspended ceilings, and approval was granted for the use of the ground and first levels as a restaurant. Approval was thereafter given for use of the second level as a social club in conjunction with the lower levels. Alcohol could be served on the lower levels, and some kinds of musical entertainment could be provided on all three levels although only the two lower floors were approved as a place of public entertainment. 15In mid 1997 approvals were given to use the building as an hotel and a place of public entertainment. For the latter approval, maximum capacities of 200 persons, 150 persons and 150 persons were specified for the respective ground, first and second levels. Extended hours of operation were permitted. 16The approval for use as a place of public entertainment ("the POPE licence") was renewed in September 2002. The removal involved an engineer's report concerning the structural integrity of the building. 17At about 5.20 am on 24 November 2002 the ceiling on the first level of the hotel collapsed. About 40 persons were on that level of the building, and about 150 and 50 on the ground and second levels respectively. Some of the persons on the first level were injured. 18Eight proceedings were brought claiming damages for injuries suffered in the collapse of the ceiling. It was agreed that the proceedings brought by Mr Thakee Al Mousawy would be the lead case, to be determined as to liability and damages, and that the other seven proceedings would be determined as to liability only at the same time. A statement of claim would be filed common to all proceedings, and the plaintiffs would be jointly represented in the lead case. 19As ultimately maintained the proceedings were brought against the owner of the building, Presdate Pty Ltd ("Presdate"); the lessee from Presdate which conducted the hotel, Stonewall Hotel Pty Ltd ("Stonewall"); the engineer whose report had been submitted in support of the renewal of the POPE licence, JA Byatt Pty Ltd ("Byatt"); and the town planning consultancy which had applied for the renewal of the POPE licence, Australian Town Planning Consultants Pty Ltd ("ATPC"). Mr Ross Creighton was a director of Stonewall and, through a company he controlled, its largest shareholder; he was also the sole director of and shareholder in ATPC. 20Hoeben J held that the claims against all of Presdate, Stonewall, Byatt and ATPC failed: Al Mousawy v Howitt-Stevens Constructions Pty Limited & Ors [2010] NSWSC 122. Pursuant to the parties' agreement, orders were made for judgment for those defendants in the other seven proceedings. 21There is no appeal by Mr Al Mousawy. These appeals are brought by four of the other seven plaintiffs, Mr Mark Turjman, Mr Corey Butler, Mr Steven McKenzie and Mr Antonino Tati (together, "the appellants"). The appeals are brought only against Stonewall. 22For the reasons which follow, in my opinion the appeals should be dismissed with costs.