Turjman v Stonewall Hotel Pty Ltd [2011] NSWCA 392 | Case summary

Court of Appeal (NSW)|2011-09-26|Before: Bathurst CJ, Allsop P, Beazley JA, Giles JA, Hoeben J

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.

The renewal of the POPE licence 23The 1993 installation of the ceiling was by AB & S Wall Linings Pty Ltd ("AB & S"). The ceiling collapsed because it had not been properly installed. The ceiling on the first floor comprised two parts, one directly fixed to the floor above and one suspended approximately half a metre below that floor. In the directly fixed part failure occurred because the screws which fixed the ceiling to the timber joists above it were of insufficient length and otherwise unsuitable; there was pull-out failure, with over-loading of other fixtures of the ceiling. The suspended part failed either because of the transfer of additional load upon the failure of the directly fixed part or because of pull-out failure for like reason of unsuitable screws and faulty placement of suspension brackets, again causing load transfer and progressive collapse. The collapse would not have occurred if longer screws had been used and the suspension brackets had been properly fixed to the floor joists. 24Central to the plaintiffs' case at trial was the attention given or not given to the soundness of the ceiling when the POPE licence was renewed in September 2002. 25On 1 May 2002 Mr Creighton wrote to the South Sydney Council ("the Council") on ATPC letterhead requesting its renewal. On 18 June 2002 the Council replied that - " ... in order for Council to assess any POPEA the following matters are to be addressed: A certificate is to be submitted from a structural engineer which states that the premises is structurally sound and is capable of withstanding the loadings which arise from the use (particularly reference is directed to the floor loading/deterioration from dancing-jumping over the years). The chosen engineer has to be a Council Registered Engineer . ... " (emphasis in original) 26Between these two communications an e-mail dated 11 June 2002 had been sent by a Mr Mark Harper to Stonewall and to the Mayor of the Council, Mr John Farrer ("the Harper e-mail"). It read - "Dear Stonewall/John, I would like to bring to your attention an ongoing concern which may or may not require further action. My partner and I (architect and landscape architect) having some feeling for structural/engineering related issues have on a number of occasions discussed our unease at the "flex" or bounce movement in the floor boards on the top floor dance level at Stonewall. We guessed 200 plus people were dancing/jumping up and down on Sunday 1-2am. I would say that the centre of the room was moving under weight at a measurable magnitude, and the question would be:

Has a structural engineer certified the licence loading for the purpose of a nightclub.
If so, should it be regularly reviewed.
Has sufficient attention been given to the fact that the building is old and the materials of construction would be deteriorating over time - possibly hastened by its current use. My obvious concern and worry is that the third level of Stonewall is going to collapse one day. Mark" 27It may be that the bracketed words in the Council's request for a structural engineer's certificate in its letter of 18 June 2002 were provoked by the Harper e-mail. Be that as it may, cl 7(2)(a) of the Local Government (Approvals) Regulation 1999 provided that a council must not approve the use of a building or structure as a place of public entertainment unless it was of the opinion that the building or structure "will be structurally sound and capable of withstanding the loadings likely to arise from the use". Apart from the bracketed words, the Council's request substantially took up the words of the regulation. 28The primary judge found that the Harper e-mail came to the attention of Mr Creighton. The finding was not challenged on appeal. 29Having obtained his name from the hotel manager, Mr Richard Foo, as a structural engineer who could help, towards the end of June 2002 Mr Creighton telephoned Mr John Byatt of Byatt. On the primary judge's findings, which again were not challenged on appeal, he asked Mr Byatt to provide advice relating to the structural adequacy of the suspended floors at the hotel but did not mention renewal of a POPE licence; nor did he read out the relevant paragraph from the Council's letter of 18 June 2002. 30In a letter from ATPC dated 3 July 2002 Mr Creighton sent to Byatt a copy of a construction certificate plan for the hotel from 1997, in the letter saying - "On 2 July 2002 we were advised by South Sydney Council's Entertainment Licensing Officer that a Structural Engineer's Confirmation and/or Certificate should be adequate confirming that the floors are generally unchanged from Council's Consent of 24 April 1997 with any other Structural Engineer's particulars possibly to be included in same." 31With this and other plans later provided by Mr Foo, Mr Byatt attended at the hotel for inspections on five occasions. So far as presently relevant, under his direction openings were made in the ceilings of the ground level and the first level and in the floors of the first and second levels, in order to view the structural beams and their support and to identify the timber of the floor joists in order to check its stress grading. 32Based on these and other investigations Mr Byatt provided a report, addressed to Stonewall but sent to ATPC, dated 12 August 2002. The full report is set out by the primary judge at [54], and need not be repeated; it was to the effect that the floor structures of the first and second levels were adequate to support the maximum anticipated loading, and - " ... that the results of the investigation confirm the original structural appraisal which certified the use of the building as a hotel and that the floor framing generally is structurally adequate to support the anticipated loading." 33The report did not purport to comment on the ceilings of the ground and first levels. 34Through the opening on the ceiling of the ground level Mr Byatt had seen remains of an old lath and plaster ceiling and the suspended ceiling below it, and a hanger for the ceiling which appeared to be attached to the sides of one of the joists. The openings in the ceiling of the first level, made to observe a steel bean and its support, did not enable him to see anything of the ceiling support. Through one opening in the floor of the second level he saw some old lath and plaster ceiling, and through the other he saw the top surface of the suspended ceiling and a couple of furring channels (supports for the plasterboard). 35Mr Byatt saw tables and chairs on the second level and a small dance floor. He concluded that the floor loading on both the first and second levels was as would be expected of a normal hotel and was essentially static in nature without any significant dynamic component. The primary judge accepted his 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 undergone noticeable deflexion whilst in use. Had I been informed that the loading was dynamic, I would have recommended that a vibration consultant be engaged to check the implications of any potential resonance arising from those dynamic loads." 36Stonewall sent the Byatt report to the Council. An officer of the Council inspected the hotel. On 10 September 2002 the Council issued the POPE licence.

The decision below 37The failure of the claims against Presdate and ATPC need not be described. Aspects of the primary judge's reasons for the failure of the claim against Byatt, however, are material to the failure of the claim against Stonewall.

(a) The claim against Byatt 38The primary judge found "36 ... that Byatt's retainer comprised the statement of tasks communicated to Mr Byatt in the telephone conversation with Mr Creighton at the end of June 2002, i.e. to provide advice relating to the structural adequacy of the suspended floors of the Stonewall Hotel and the more detailed instructions set out in the letter from ATPC to Byatt of 3 July 2002." 39As later appears (see [78] at [41] below), his Honour found that Mr Byatt understood that his report was for the purposes of renewal of the POPE licence for the hotel. 40The primary judge held that on an examination of the "salient features" material to the relationship between Byatt and Mr Al Mousawy, and in particular because Byatt's retainer by Stonewall was limited to examining the structural integrity of the floors and did not require any investigation of the ceilings, the duty of care owed by Byatt did not go beyond a duty to exercise reasonable care in the investigation and assessment of the structural integrity of the floors. His Honour held also that no breach of that duty of care had been established, and further that the case against Byatt failed on the issue of causation. 41In connection with duty of care, his Honour said - "76 Expert evidence was given in this matter by three structural engineers: Mr Fisher (retained by the plaintiff), Mr Barry (retained by Stonewall) and Mr Alden (retained by Byatt). The opinions of Messrs Fisher and Barry as set out in their reports assumed knowledge on the part of Byatt of the contents of the letter from Council to Mr Creighton of 18 June 2002 and knowledge of the contents and of the email sent by Mr Harper on 11 June. Those opinions have to be read in the light of my rejection of the evidence of Mr Creighton on these issues and my finding of a more limited retainer. This significantly limited the value of their reports. 77 Subject to that qualification, both Mr Fisher and Mr Barry seemed to suggest that because the work which Byatt had been retained to perform was being carried out in the context of the renewal of a POPE authorisation, the obligation of Byatt was to go beyond the terms of its retainer and in some fashion, carry out a safety audit of the whole building. Mr Alden took a more restrictive approach and was of the opinion that Byatt's obligation was to fulfill the terms of its retainer and nothing more. 78 In his evidence, Mr Byatt agreed that he understood that his report would be sent to council and would be used for the purpose of supporting Stonewall's application for a renewal of its POPE authorisation. 79 Despite the strongly expressed opinions of Messrs Fisher and Barry, I do not see why a structural engineer, as distinct from any other professional who is expert in a particular field, should be required to go beyond the terms of his or her or its retainer. I accept that in meeting the terms of a particular retainer, a number of subsidiary steps may need to be taken but that is not the proposition underlying the opinions of Messrs Fisher and Barry. They postulate obligations going considerably beyond the actual retainer. On this issue, it seems to me that the opinion of Mr Alden is logical and compelling and I prefer it. 80 There was no evidence that Byatt was retained to prepare Stonewall's application for the renewal of its POPE authorisation. What Byatt was retained to do was to provide an opinion in relation to one aspect of the POPE authorisation renewal, i.e. the investigation into the construction of the suspended floors to evaluate their respective loading capacities. It was not retained to investigate and evaluate any other aspects of the building which may have been required for the POPE authorisation renewal. 81 In any event, the assumption implicit in the opinions of Messrs Fisher and Barry on this issue is not correct as a matter of law. There was no evidence before me to support the proposition that a certificate relating to a POPE consent must certify the safety of every element, structural or otherwise, of the subject premises. The council did not have power to impose conditions on the grant of a POPE consent which went beyond structural soundness and safety in the event of fire (see Revilla Pty Ltd v Council of the City of Sydney [2003] NSWLEC 343)." 42His Honour then cited as "relevant" a question and answer in the joint report of the three structural engineers - "82 On this issue, question 5 and its answer in the joint report of the engineering experts (exhibit C90) is relevant: 'Question 5: Does a structural engineering investigation into the nature of construction of suspended floors in an attempt to evaluate their respective loading capacities convey to structural engineers that non-structural features fixed to those floors have been investigated? It was agreed by all: NO - non-structural features would be investigated only to the extent necessary to determine the loads applied to the suspended floor structure.'" 43As to causation, one way in which causation was asserted was that, on the basis of breach by Byatt failing to advise Stonewall to engage a vibration expert in order to check that deflection, vibration and/or resonance did not adversely affect Byatt's conclusions concerning the structural adequacy of the suspended floors, the vibration expert either would have detected the inadequacy of the installation of the 1993 ceiling or alternatively its findings would have led to Byatt detecting the inadequacy. The primary judge said - "107 It is, however, not established that if a vibration expert had been engaged, he or she would have undertaken an invasive examination of the 1993 ceiling. The joint report of the structural engineers suggests otherwise: 'Question 9: If a structural engineer was retained to provide "a certificate ... which states that the premises are structurally sound and is capable of withstanding the loadings which arise from the use (particular reference is directed to the floor loading/deterioration from dancing - jumping over the years) ..." and vibration testing of the floors had been performed, would that testing have: (a) Involved any invasive examination of the ceiling? ... (A) We would not expect vibration monitoring to require any opening up as accelerometers can normally be clamped or otherwise fixed to accessible locations.' 108 Moreover, when vibration experts were engaged after the accident, they carried out their investigations without any invasive examination. This is clear from their reports (exhibit 3D25). 109 Mr Fisher assumed that the investigations of a vibration expert would have led to the discovery of the inadequacy in the affixation of the 1993 ceiling but did not explain how. Mr Alden was much more qualified in his opinion, explaining that it would depend very much upon what the vibration expert discovered as to whether he or she would engage in any invasive tests. Moreover, there was no evidence that Stonewall would have consented to the retaining of a vibration expert, had such a recommendation been made by Byatt, and would have consented to invasive and/or destructive tests of the first level ceiling had they been recommended."

(b) The claim against Stonewall 44The primary judge said - "118 There was no issue between the plaintiff and Stonewall that Stonewall as occupier of the hotel owed to the plaintiff as a patron of the hotel, a duty of care. The relationship of occupier and entrant has been long recognised as giving rise to such a duty. ( Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479.) Accordingly, Stonewall was obliged to take reasonable care to avoid a foreseeable risk of injury to the plaintiff. On the facts of this case, the content of that duty was to take reasonable care to provide premises which were safe. I do not understand that proposition to be in issue between the plaintiff and Stonewall." 45It had been submitted that Stonewall breached its duty of care because, having received the Harper e-mail, it should have conducted a full safety audit of the hotel which would have revealed the defective installation of the ceiling of the first level; alternatively, having received the Harper e-mail it should have advised Byatt of the contents of that e-mail and provided full information about the activities being carried out on the second level of the hotel, whereby Byatt would have recommended the retaining of a vibration expert, and if such an expert had been retained the defective installation of the ceiling would have been discovered. 46The primary judge did not accept the first submission as to breach of duty of care. His Honour considered that it "involves an over-reading of the e-mail from Mr Harper" (at [121]), and that the reasonable response to it was not to conduct a safety audit of every aspect of the hotel but to examine the structural integrity of the floors of the hotel, in particular the floor on the second level. 47As to the second submission as to breach of duty of care, his Honour held that breach had been established. The risk of the floor on the second level of the hotel collapsing was foreseeable and was a not insignificant risk, a reasonable person in Stonewall's position would have taken steps to have the structural integrity of the floor on the second level assessed, and - "124 The specific breach of Stonewall in this case was, having retained a structural engineer, failing to adequately brief him with all relevant information, i.e. the observations of Mr Harper and his partner as set out in the email and a detailed statement of the activities being carried on at the hotel, whether those activities were authorised or not." 48However, his Honour said that what was not foreseeable was that the ceiling on the first level of the hotel might collapse, and that "the crucial issue" was whether Stonewall's breach "made a material contribution to the collapse of that ceiling in terms of factual causation as set out in s 5D [of the Civil Liability Act ]" (at [125]). 49The primary judge held that causation was not established. He began - "126 In considering the causation question, it is necessary to have regard to what Byatt would have done had it been provided with relevant information about the hotel's activities and the observations of Mr Harper and his partner or as the plaintiff put it, what a hypothetical competent structural engineer would have done if his retainer had included that information. 127 Whatever approach is followed, the evidence is all one way, i.e. the appropriate response was to retain a vibration expert. Mr Byatt said he would have done that had he been in possession of that information and all of the structural engineers agreed that this was the appropriate response for a competent structural engineer carrying out the retainer given to Byatt if that engineer had been made aware of that information. 128 The next step in the plaintiff's argument is the same as that which was argued in the case of Byatt. The plaintiff submitted that had vibration experts been retained, they would have either taken steps themselves or have provided information which would have led to the discovery of the defect in the installation of the 1993 ceiling. Although I have already rejected this submission in relation to the claim against Byatt, I propose to refer in more detail to the evidence on this issue. This is in deference to the arguments put on behalf of the plaintiff in relation to this submission." 50The earlier rejection of the submission in relation to the claim against Byatt was at [109], set out at [43] above. 51The primary judge continued, and I set out a lengthy passage from his Honour reasons which conveniently includes evidence given by the three structural engineers - "129 The plaintiff relied upon the following evidence: 'WITNESS FISHER: I will reply to the question that I believe I am being asked and I will expand on it if you elaborate further. If an engineer, our fictitious engineer, had been given that email, which from memory identifies significant dynamic response and resonance of the dance floor with potentially overcrowding relative to a POPE licence numbers limitation, I believe he would have immediately realised that a dynamic analysis would need to be done for the floors that are there, that there may need to be better control on the limitation of numbers of people that are on the floor by the people who run the facility, and because of the risk of collapse of the attachment of things to the floor joists of the suspended floors I would have expected that engineer to take steps to check the adequacy of such fasteners, particularly those subject to the dynamic resonance and impact factors associated with the floor vibrating." (T.254.48-255.9) 'WITNESS BARRY: Just to emphasise the point that the email itself confirms that the area is subject to overcrowding and it has happened, so basically that puts an onus on the engineer to go carefully, but also puts the onus on the proprietors to ensure that the crowd numbers are controlled. HIS HONOUR: I think the thrust of Mr Webb's question was really directed at whether the line of inquiry followed by a hypothetical engineer would have eventually led to an examination of the fastening or the adequacy of the fastening of the ceiling. Mr Fisher says it would have. Do you agree with that? WITNESS BARRY: Yes, because it is indicative, it gives an indication of structural performance under the loading of a highly active crowd, and that includes inducing vibration and amplifying the deflections that are already there, which could have an effect on the adequacy of the structure." (T.255.19-32) 'WITNESS ALDEN: I was going to say if the first assumption is the engineer has got this document, I was going to say if the next assumption is there is no known council restriction which would cause him to walk away from it because it was an unauthorised use, then I think the first thing he would do is recommend to his client that he would get dynamics people involved. I think there's sufficient concern raised with this that an engineer such as myself would feel that it's getting out of his area of expertise. Once you've got the dynamics people involved I think then it would depend on where that investigation took you. If they investigated it and said, look, really the vibrations are negligible, it's not an issue, you know, they are not going to cause any damage or anything of the magnitude that would normally be expected to cause damage then that might be the end of it. If, on the other hand, they said, look, these vibrations that are being generated by this activity are sufficient to cause maybe damage to the finishes or something like that, it may be in that circumstance it would lead on to further inquiries. But I think it would depend entirely on the outcome of the advice you got from the other dynamics experts." (T.255.38-256.4) 'WEBB: Mr Alden, I want you to further assume that our notional engineer did what Mr Byatt did and looked at the ceiling of the ground floor and made some observations there about the continued existence of old lath and some plaster remaining on the underside of the joists. In the context of having this email, would that not mean that our notional engineer would himself be led to want to see what was, if anything, attached by way of lath and plaster attached to the joists on the floor above, with a view to contemplating the possibility of delamination? WITNESS ALDEN: It's a difficult one to answer because a lot of these things are a bit of suck it and see if you are involved in a job like that. I still think the first reaction to that would be to get dynamics people involved, and I think a lot would come out of what they tell you, because you can have vibrations that feel quite disturbing but really structurally are of no consequence whatsoever. I mean that in fact is the common situation, that even though people may be concerned about what vibrations feel like, that structurally in terms of a percentage of the gravity force it is negligible." (T.256.12-.28) 'WITNESS ALDEN: Yes. It's really a matter of whether something triggers you to investigate that option. But, as I say, I think really what I would do is initially get the dynamics people involved and then I would be influenced by what they tell me. In other words, if they say, "Yes, what's happening here is really of significance ", then I might well consider taking it further. If they come back and say, "It's not significant. It may be worrying some people, but it's not really a practical issue and you don't have to worry about it", I would probably not take it further. " (T.257.34-.41) 'WITNESS ALDEN: ... No, if the results of the dynamic investigation were these were material vibrations - in other words, they were likely to affect instrumental performance, and in terms of G forces they were significant and not trivial - then I would certainly start talking to the client about where that might lead, and maybe that would lead to looking at the floor and maybe it would lead to looking at the ceiling. Again, it depends very much on where the dynamics goes. If they say really what you have got is trivial and you don't need to worry about it, you may not go any further. ... No, I can't say that, because it's a common problem that people's perceptions of vibrations are out of all proportions to the structural significance of those vibrations. There's that article that Mr Fisher referred to by Murray who's made that specific point. " (T.260.7-.24) 'WITNESS ALDEN: Well, I think in a sense I've answered, in that I've said I would get a vibration expert involved and if they advised me that it was structurally significant, which I think you're asking me to assume, then I would possibly head down the path of looking at the floor structure and maybe the ceiling as well. ... WEBB: Would you see the occurrence of the fall of the ceiling itself as being demonstrative of a positive result from a dynamic engineer? This accident did happen, didn't it? WITNESS ALDEN: Well, yes. But we don't know - what we do know is that the fasteners were entirely inadequate and the ceiling was at the risk of falling from the date it was installed in 1993, and I would say at risk of falling with or without any jumping up and down or dancing, or anything like that. It was a grossly inefficient installation. So it's just a matter - it's a miracle that it didn't come down before, that's all I can say." (T.261.9-29) "WITNESS FISHER: I'm reading this email and at this stage I'm making reference to item 3, the penultimate paragraph, which says has sufficient attention been given to the fact that the building's old and the materials of construction would be deteriorating over time, possibly hastened by its current use. On the surface, it would suggest that this dancing dynamic use of that particular floor might not have been current for so many years. Certainly with the inadequate fastenings of that suspended and direct fix ceilings, time and the dynamic effects associated with the springiness of the floor and the dancing would have had a detrimental effect on the strength that was associated with those fastenings. So I would think that the additional dynamics and, hence, the additional gravitational impact load exerted on those fastenings would have been worse when it was used as a nightclub with positive dancing effects. And I just want to understand why somebody would not consider investigating something like that suspended ceiling, because any risk assessment - and this isn't a new term; risk assessment has been back in the Australian Standards back in 1985 - somebody needs to look into it. And I don't know anybody else who's protecting the public interest if the engineer doesn't." (T.262.25-44) 130 The opinions of Messrs Fisher and Barry are clearly influenced by hindsight. Whilst they are expressed with great certainty, they do not articulate why the retaining of vibration experts would lead to an examination of the installation of the 1993 ceilings. Their opinions assume without any basis being stated, that the advice of the vibration experts would have been that there was a problem with the floor on the second level of the hotel. They assume without explanation that "flex" or "bounce" in a floor would require examination of a ceiling attached to joists beneath that floor. 131 There is no evidence to substantiate those assumptions. To the extent that there was evidence on the point, it was to the effect that there was no vibration problem with the floor. Mr Byatt gave evidence that some bracing had been added to the floor on the second level of the hotel but that this bracing was of no structural significance. That evidence was not challenged. We know that when vibration experts tested that floor, no vibration problem was identified. 132 In contrast I find the assessment of Mr Alden to be reasonable and persuasive. The effect of his evidence is that before there was some possibility, let alone likelihood, of the ceiling on the first level of the hotel being examined, there would have to be a finding by the vibration expert that there was a vibration problem with the floor. If no such finding were made a competent structural engineer would take no further action. That is in fact what happened when vibration tests were carried out after the ceiling collapsed." 52The primary judge then considered what would have happened if there had been a finding by the vibration expert that there was a vibration problem with the floor. His Honour said that the first step for a structural engineer would be to examine the floor, not the ceiling, and that even if the ceiling were looked at "the defect in it was latent and would require significant effort and expense to investigate and identify" (at [133]). His Honour described the investigations which would have been necessary, and referred to and set out some evidence of Mr Alden ultimately to the effect that the investigation would cost as much as replacing the ceiling. His Honour said - "136 There was of course no evidence that, had recommendations been made either by the vibration experts or by a structural engineer for these kinds of investigations into the ceiling of the first level of the hotel, Stonewall would have given instructions for such work to be carried out. To the extent that the Court is able to draw an inference from the conduct of Stonewall, that inference would be contrary to such a conclusion. The failure of Stonewall to properly brief Byatt by advising him of the Harper email and the activities being carried out on the second level of the hotel does not support an inference that had the need for such an investigation of the first level ceiling been communicated to Stonewall, it would have given instructions to proceed." 53Hence his Honour came to the conclusion - "137 It follows that factual causation has not been established between the breach of duty established against Stonewall and the harm which eventuated. The plaintiff's case depends upon a sequence of events leading up to an investigation and discovery of the defect in the installation of the ceiling on the first level. That sequence of events depends upon assumptions which have not been made out by the evidence. The plaintiff has not established causation against Stonewall and accordingly his claim in negligence against Stonewall fails."

Appeal on a different basis 54As has been seen (see [41] above), at trial the claim against Stonewall was founded on the duty of care recognised in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. In that case the plaintiff slipped and fell in the foyer area of the defendant's supermarket, having entered to buy some cheese. The plurality in the High Court (Mason, Wilson, Deane and Dawson JJ) held that retention of the special duties of an occupier to entrants was no longer justified and that it was sufficient to determine whether in the circumstances a duty of care was owed under the ordinary principles of negligence, and that in the circumstances of that case - " ... the fact that the respondent was a lawful entrant upon the land of the appellant establishes a relationship between them which of itself suffices to give rise to a duty on the part of the appellant to take reasonable care to avoid a foreseeable risk of injury to the respondent" (at 488). 55The appellants wished to contend on appeal for a different duty of care. They accepted that they would be departing from the case run at trial, and in anticipation of Stonewall's objection sought leave to do so. 56The appellants submitted that the applicable duty of care was that stated by McCardie J in Maclenan v Segar (1917) 2 KB 325, a case in which a guest for reward at an hotel was injured when fire broke out due to a defective chimney arrangement. The statement of the duty of care, at 332-3, was - "Where the occupier of premises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties (unless it provides to the contrary) contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of any one can make them. The rule is subject to the limitation that the defendant is not to be held responsible for defects which could not have been discovered by reasonable care or skill on the part of any person concerned with the construction, alteration, repair or maintenance of the premises ... . But subject to this limitation it matters not whether the lack of care or skill be that of the defendant or his servants, or that of an independent contractor or his servants, or whether the negligence takes place before or after the occupation by the defendant of the premises." 57The appellants submitted that although McCardie J used the language of contract ("agrees for reward ... the contract ... contains an implied warranty"), the duty of care was in truth founded in tort, and had been seen as such in particular by Windeyer J in Voli v Inglewood Shire Council (1963) 110 CLR 74 (with reference to Fox v Buffalo Park 47 NYS 788 (1897)) at least where the entry was to a building or structure open to public entry for reward. They submitted that the Stonewall Hotel was such a building or structure, and ultimately submitted that it was not necessary that the public entry be for reward and that it was sufficient that they were lawfully on the hotel premises. 58By this means the appellants sought to outflank the reasoning resulting in failure of the claim against Stonewall at trial. The claim would no longer rest upon breach of duty of care by Stonewall in failing to inform Byatt of the Harper e-mail and the position as to dancing in the hotel, with consequent difficulties in causation as found by the primary judge. Rather, Stonewall would be liable because the ceiling was defective and collapsed due to lack of care or skill on the part of AB & S when installing it. It would be liable for breach of a version of a non-delegable duty of care, and it matters not that the careless installation had occurred many years before, or that AB & S was an independent contractor and not a servant or agent of Stonewall. 59In Calvert v Stolznow (1982) 1 NSWLR 175, decided when occupiers' liability according to different categories of entrant held sway, this Court held that a contractual duty of care as expressed in Maclenan v Segar required that the reward be paid for entry into the premises rather than for remaining in them. In that case the plaintiff was injured on the dance floor in a restaurant, and it was held that the reward by way of payment for food and drink was not paid for entry into the restaurant and so the duty of care was only the non-contractual duty of care owed to an invitee. The appellants considered it necessary to submit that Calvert v Stolznow was wrongly decided. For this reason a bench of five sat to hear the appeals. 60Stonewall submitted that the appellants should not be permitted to present a different case on appeal from that run a trial. After hearing argument the Court ruled that it would not be permitted, with reasons to be given later. My reasons follow. 61In Water Board v Moustakas (1988) 180 CLR 491 Mason CJ and Wilson, Brennan and Dawson JJ said at 497 - "More than once it has been held by this court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied." (footnote omitted) 62Even if the point could not possibly have been met by calling evidence below, it must be "expedient and in the interests of justice" to entertain it. In Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 a new constitutional point was not permitted, because the proper time for taking it was at trial and in general a party is bound by the course deliberately adopted at trial. The authorities to which Mason P referred included Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1, referring to "the sound general principle ... that parties must be bound by the course they deliberately adopted at the trial", and Coulton v Holcombe (1986) 162 CLR 1, in which Gibbs CJ and Wilson, Brennan and Dawson JJ said at 7 - "It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish." 63The appellants submitted that in the present case all relevant facts had been established and the point was one of law, namely, the formulation of Stonewall's duty of care. They submitted that there would be no inconsistency with the case run at trial, and that it was in the interests of justice that the rights and liabilities of the parties be settled by the application of correct legal principle. They suggested that as non-lead plaintiffs below, albeit with their interests represented by counsel also appearing for Mr Al Mousawy, they might be regarded as having a lesser responsibility for the conduct of the case at trial. 64This last matter can immediately be put aside. Under the case management orders the appellants committed themselves to counsel's conduct of the lead case and their own cases, to the results of which they would be bound. 65An immediate difficulty with the appellants' submissions is that the facts are not fully found. Mr Al Mousawy's amended statement of claim was treated as the common statement of claim. It was alleged that Stonewall "conducted an hotel restaurant and place of entertainment at the premises", but nothing was said about the circumstances in which Mr Al Mousawy or any other of the plaintiffs came to be on the first level when the ceiling collapsed. Mr Al Mousawy gave evidence, but (it seems because of his injuries) could not remember how he came to be at the hotel or whether he was with friends; none of the other plaintiffs gave evidence. Although there was some evidence (for example from police reports of attending the hotel after the collapse) of persons injured in the collapse of the ceiling, no doubt because it was of no moment in the way the case was then presented there was no evidence of the basis on which the appellants entered and used the hotel premises other than such as might be inferred from the fact that the premises were an hotel with entertainment and dancing. 66Perhaps in recognition of this, the appellants' submissions founded on Maclenan v Segar ultimately put aside that public entry be for reward, and their case was rather one of lawful presence in premises open to the public. This would perhaps run into conflict with Australian Safeway Stores Pty Ltd v Zaluzna , entry into the hotel where a drink could be bought and entertainment enjoyed being akin to entry into the supermarket where cheese could be bought. However, any examination of a Maclenan v Segar duty of care, its availability and application as a tortious duty of care, and the circumstances in which it may be available and apply should not be made in relative abstraction, but on facts found with the duty of care firmly in contention. For this reason alone it would be undesirable to embark upon the new case on appeal. 67There would also be a potential for injustice to Stonewall. The amended statement of claim had alleged negligence on its part, and there is no reason to think that it should have understood prior to the trial that Mr Al Mousawy and the other plaintiffs relied not on the general duty of care recognised in Australian Safeway Stores Pty Ltd v Zaluzna, but on some other duty of care. Stonewall went to trial accordingly, and was successful. It submitted on appeal that, had the duty of care founded on Maclenan v Segar been alleged against it, it may have investigated a cross-claim against the Council in relation to approval of AB & S's work in 1993 or a cross-claim against Presdate, its landlord in relation to the state of the building; there was also mention of a possible cross-claim against AB & S. We were informed that Mr Tati had initiated proceedings against the Council. 68Perhaps the cross-claims were always apt for consideration, but any question of how a defendant would have conducted proceedings had the plaintiff conducted them in a different way is always to a degree speculative, and at least one basis for confining a party to its case run at trial is that an opposing party should not be exposed to speculation on how it would have responded to the different case. The opposing party should generally not be required to do more than identify, beyond the fanciful, what it might have done. I do not think that it can be excluded that Stonewall would have acted differently. 69Additional to these matters are that Stonewall was sued in a complex of eight proceedings, by the case management directions in early 2008 under the lead case; that the proceedings went to trial including as to Stonewall's liability to all plaintiffs over thirteen days of hearing in February 2010 followed by written submissions; that after judgment on 8 March 2010 there was a further hearing and judgment on costs; and that the appellants as four only of the former plaintiffs now seek to run a new case on appeal. 70These particular circumstances are against permitting a different case against Stonewall on appeal. There has been comprehensive attention to resolution of the issues at trial. Apart from any waste of judicial resources, and of others' time and money, if Stonewall's success at trial is displaced in a new case on appeal, any justice to the appellants in permitting them now to present a different case on appeal would be significantly tempered by injustice to Stonewall if, after a long period of litigation, second thoughts on the part of the appellants were to negate Stonewall's successful defence of the claim as presented at trial. Further, the other plaintiffs (including Mr Al Mousawy) have not appealed, and so far as appears there is no arrangement whereby they might take advantage of any fruits of the appellants' second thoughts. If the new case were upheld and the appellants otherwise succeeded in establishing their claims, Stonewall would be liable to some but not liable to other of plaintiffs alleging injury in the same collapse of the ceiling. There is no evident basis for the plaintiffs being in different positions. Such differential outcomes can occur in the conduct of litigation, but the prospect of their occurrence in the present circumstances tends against expediency and the interests of justice in entertaining a new case on appeal.

Factual causation 71Stonewall did not challenge that it was in breach of its Australian Safeway Stores Pty Ltd v Zaluzna duty of care in failing adequately to brief Byatt with the Harper e-mail and information as to the activities being carried on at the hotel (I will hereafter refer to this as the relevant information). The appellants did not contend that it breached that duty of care in some other manner. The issue on appeal was factual causation. 72The primary judge found that, if apprised of the relevant information, Mr Byatt would have retained a vibration expert, and that that was the appropriate response of a competent structural engineer carrying out his or her retainer with the inclusion of the relevant information. Although his Honour described the relevant information as "the observations of Mr Harper and his partner as set out in the e-mail and a detailed statement of the activities being carried on at the hotel" (at [124]; see [47] above), it should also be assumed that Byatt was given the Council's letter of 18 June 2002 setting out what the structural engineer's certificate was to state; this would in any event follow from Mr Byatt's (or the hypothetical structural engineer's) appreciation that the report was for the purposes of a POPE licence, since the letter reflected the regulation. 73The appellants had to overcome the first, alternatively the second and third, of three subsequent steps in his Honour's reasoning as to causation - (a) that the structural engineer would not also have investigated the adequacy of the fastening of the ceiling, and would have done so only if the report of the vibration expert caused him or her to do so; (b) that the report of the vibration expert would not have caused the structural engineer to investigate the adequacy of the fastening of the ceiling, because the vibration expert would not have identified a vibration problem; and (c) even if a vibration problem was identified, the structural engineer's first step would have been to investigate the floor and not the ceiling underneath it, and the effort and expense of an investigation of the adequacy of the fastening of the ceiling was such that Stonewall would not have authorised it.

(a) Investigation as well as retaining a vibration expert 74As to this step there is, with respect, a difficulty in the primary judge's reasons. 75His Honour identified at [128] (see [49] above), the submission that the vibration experts would either have taken steps themselves or have provided information which would have led to the discovery of the defect in the installation of the 1993 ceiling. He said that he would refer in more detail to the evidence on that issue, and set out evidence of Messrs Fisher, Barry and Alden. 76The evidence of Messrs Fisher and Barry to which his Honour then referred, however, was on a different issue. Mr Fisher, with whom Mr Barry essentially agreed, said that the structural engineer would have immediately realised the need for a dynamic analysis and that he "would have expected that engineer to take steps to check the adequacy of such fasteners ... " (meaning fasteners attaching the suspension brackets to the floor joists). That is, the evidence was that the response of the hypothetical structural engineer would be to investigate the adequacy of the fastening of the ceiling, and was divorced from retention of a vibration expert. Its basis was substantially expressed in the last extract from Mr Fisher's evidence set out by the primary judge, namely, that because of the dynamic effects of the dancing - " ... I just want to understand why somebody would not consider investigating something like that suspended ceiling, because any risk assessment - and this isn't a new term; risk assessment has been back in the Australian Standards back in 1985 - somebody needs to look into it. And I don't know anybody else who's protecting the public interest if the engineer doesn't." 77The difficulty surfaces at [130]-[131] at [51] above. The primary judge took the opinions of Messrs Fisher and Barry to be concerned with what the vibration experts would have said and why retaining the vibration experts would lead to an examination of the installation of the 1993 ceiling, and his Honour was critical of the opinions for their unarticulated basis. But that was not what they were addressing, and of course they did not articulate why it was so. 78The evidence of Mr Alden to which the primary judge referred was also not directed to the issue identified by his Honour. Mr Alden was of the opinion that investigation of the ceiling would depend on what the vibration expert told him, and said that the structural engineer would not investigate the floor or the ceiling unless told that there was a structurally significant problem. In preferring his opinion, the primary judge misapprehended the evidence which he thought expressed the competing opinion. 79In my view, however, the primary judge's acceptance of Mr Alden's opinion was correct. 80Before explaining why, it should be observed that at this point breach of duty of care in failing to provide the relevant information is accepted, and the question is one of causation. It was not suggested that Stonewall breached its duty of care in failing to engage a competent structural engineer. Accordingly, in the enquiry into factual causation it should be asked what Mr Byatt would have done had he been provided with the relevant information, not what the hypothetical structural engineer would have done. 81Mr Byatt was found not to have been negligent on the information he had, including with appreciation that his report was for the purposes of a POPE licence, and although called in the plaintiffs' case he was not clearly asked whether he would have investigated the ceilings for himself. His evidence to the effect that, if apprised of the relevant information, he would have arranged for a vibration expert to test the loading capacities of the floors and consequent deflections suggests that he would not have investigated the ceilings for himself. On one view, in the absence of evidence from Mr Byatt the necessary causal link has not been established, particularly having regard to Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389; (1991) 6 ANZ Ins Cas 61-042. 82However, I am content to assume that in the enquiry into factual causation it should be asked what a non-negligent Mr Byatt would have done had he been provided with the relevant information or, for practical purposes, what would have been required of a competent structural engineer. What would have been sufficient for a structural engineer to have done, acting reasonably in discharge of his or her retainer? 83The extracts from the evidence of Messrs Fisher, Barry and Alden set out by the primary judge came from a concurrent examination, the so-called "hot tub". Some background and regard to further evidence is of assistance. 84Mr Fisher provided reports dated 14 February 2005, 24 March 2006 and 17 October 2007. Mr Alden provided a report dated November 2007. Mr Barry provided a report dated 28 May 2009. The three structural engineers thereafter conferred and provided minutes of their meeting, in which there was considerable common ground. 85From the beginning Mr Fisher's reports included that Mr Byatt should have investigated the suspended ceilings and in particular their support, to the point of the statement in the last report that it was "inconceivable that a Structural Engineer would certify the floors without such certification including the attached and/or suspended fire-rated ceilings etc, failure of which should have been appreciated by such an engineer as being of extreme hazard to patrons". Mr Fisher said that Byatt should at least have advised Stonewall that its certification did not extend to the ceilings, and that they should be inspected and certified by extension of his retainer or by other suitably qualified and experienced persons. He considered even on the basis of a retainer in the terms of the letter of 3 July 2002 that Byatt should have investigated the suspended ceiling framing and particularly its support details. In this respect, the primary judge was not entirely correct in saying (at [76], see [41] above) that his opinions assumed knowledge of the Harper e-mail and the Council's letter of 18 June 2002. 86Mr Fisher considered that Byatt's execution of its retainer was deficient in a great many areas, but as to this area the second report included - "In my opinion, PBL as the only structural consultant/expert advising Stonewall Hotel Pty Ltd (and for that matter Council) as to the structural adequacy and hence implied safety in use of the premises as a nightclub, had, as a professional engineer, a responsibility to investigate not only the structural adequacy, serviceability and condition of the primary and secondary floor framing elements but also the same parameters with respect to attachments to the underside of the floors such as suspended ceilings, equipment etc and, in particular, to have made recommendations as to the removal of the old lath and plaster ceiling from any supporting floor area affected by dance floor vibrations." 87From the reports, it is evident that Mr Fisher's opinions were driven by the view that a certification of structural adequacy "is intended to ensure that [the building is] safe for the intended use and hence without risk to users/patrons" (third report, immediately preceding the reference to inconceivability abovementioned). In this regard, the last extract set out by the primary judge at [129], see [51] above, in which Mr Fisher refers to risk assessment and the engineer as protector of the public interest is indicative of his view and its basis. 88Taking the reports out of date order, Mr Barry considered that although a POPE licence concentrated on structural adequacy "a skilled engineer would have undertaken a survey of the building as a whole and identify any building issue that could affect the use/exercise of the POPE licence by the Hotel", and that he or she would have done so even if the report was not required in connection with a POPE licence. He identified the building elements affected by use of a POPE licence, which included the ceiling. Even on Byatt's retainer as found by the primary judge, in his opinion, certification of the ceilings was required. Mr Barry also was critical of Byatt's execution of its retainer in a great many areas. He did not particularly explain why the skilled engineer would certify as to any "building issue" affecting the use of a POPE licence, and his opinion was not dependent on information as to dancing activities. 89Mr Alden's report began on the basis of a retainer effectively as found by the primary judge. He gave careful explanation. In short, he distinguished between structural elements and finishes, and explained that the structural engineer would generally have little knowledge of the latter. A structural engineer retained as above would provide advice as to the floor joists and beams comprising the structural system for the two floors, but not as to the ceiling which was part of the finishes, and he did not believe that the structural engineer "would have considered himself sufficiently expert in relation to proprietary ceiling installations to carry out an inspection of the ceiling". The structural engineer would therefore not have inspected the ceiling installation. Had the structural engineer been provided with the Harper e-mail or the Council's letter of 18 June 2002, he or she would have been alerted to use beyond approved capacity and normal hotel activities and to a suggestion of harm to the building; he or she might have suggested engaging an engineer "with specific expertise in dynamic issues", and may have been prompted - " ... to recommend to the proprietor of the hotel that he also engage other specialists (such as building consultants) to consider whether there was damage being caused to non-structural elements of the building, and to specifically note that his investigations were limited to the structural elements of the building. In addition, it may have prompted the engineer to extend his investigations to look more closely at locations such as the end bearing locations of joists to ensure that packers had not come loose or grout under the ends of joists and beams deteriorated," 90The minutes of the meeting of experts were consistent with their differing opinions, although clearly recognising the distinction between structural and non-structural features of a building (see for example question 5 set out at [42] above). 91The concurrent evidence was against this background. It was principally concerned with Byatt's performance of its retainer on the assumption of the retainer as found by the primary judge, who by then had made his view known. Mr Fisher in particular maintained that the structural engineer should conduct a risk assessment looking at "what can go wrong, what can fail", pursuant to a "liability [sic: responsibility?] to advise our clients who are generally totally unfamiliar with what we are dealing with ... ". Only at the last the structural engineers were asked to assume provision of the Harper e-mail to the hypothetical structural engineer, and there followed the evidence extracted by the primary judge. 92What appears from this, in my view, is that the opinions of Messrs Fisher and Barry on the basis of a limited retainer excluding relevant information carried over to an assumption of provision of the relevant information. The bsis for the opinions was, and remained when the retainer included the relevant information, what the primary judge described as carrying out a safety audit of the whole building, going beyond the retainer. 93Those opinions had not been accepted by the primary judge in the claim against Byatt; his Honour preferred Mr Alden's opinion. Similarly, in my view, even with the addition of the relevant information Mr Fisher and Mr Barry did not pay sufficient heed to the retainer, which was to certify that the premises, that is the hotel building, were "structurally sound and ... capable of withstanding the loadings which arise from the use ... ". Mr Fisher's opinion remained one of assessment of safety in general in use of the hotel, not one of assessment of structural soundness and capacity to bear likely loadings, and as I have said Mr Barry essentially went along with him. 94Mr Alden appropriately distinguished between structural elements and other matters, a relevant distinction for a structural engineering investigation (see again question 5 set out at [42] above), and his distinction remained for the scope of the retainer when provision of the Harper e-mail was assumed. The Harper e-mail would affect the fulfilment of the retainer, by causing the structural engineer to recommend engaging a vibration expert. But it would not cause the structural engineer at that time to investigate for himself or herself the adequacy of the ceiling installation; whether there was an investigation would depend on what the vibration expert said. In this regard Mr Byatt had said with some emphasis, and plainly Mr Alden was of the same mind, that a perception of flex or bounce movement from activity such as the postulated dancing could in fact be of no significance to structural soundness. 95The appellants submitted that Mr Alden's opinion as orally expressed was not consistent with being prompted to extend investigations as suggested in his report, see the relevant part set out at [89] above, but that is not so: the extended investigations were still of structural elements. 96They also submitted that Mr Barry's opinion had the status of an admission by Stonewall. That is not so. Although Mr Barry was qualified for Stonewall, his report was tendered by the appellants. Had he been called in Stonewall's case, he would have been be no more than a witness. In any event, an evidentiary admission is but an item of evidence to be evaluated with all other evidence. There is no substance in the submission. 97The opinions of Messrs Fisher and Barry may be shared by other structural engineers with a like view to Mr Fisher's view that "somebody needs to look into it. And I don't know anybody else who's protecting the public interest if the engineer doesn't". But the present question is what it would have been sufficient for a competent structural engineer, retained to certify structural soundness and capacity to withstand likely loadings and with knowledge of the relevant information, to do. Put another way, it is whether the hypothetical structural engineer would act unreasonably in not investigating for himself or herself the installation of the ceiling, but rather proceeding as Mr Alden opined. 98Regard to s 5B of the Civil Liability Act is relevant, although the context is causation and fulfilment of retainer - the hypothetical structural engineer is not being sued. There would be a not insignificant foreseeable risk of harm if the dancing compromised the ceiling's integrity, but bringing in a vibration expert and awaiting his or her advice would itself be a precaution against the risk. Probably of harm pending the advice would not be high, although the harm could be serious, and the risk of harm would not be overlooked (nor would the public interest be abandoned), since the structural engineer would recommend the investigation if the vibration expert's advice warranted an investigation. The burden of the stronger precaution of investigating the adequacy of the ceiling installation ahead of advice whereby investigation was appropriate would be considerable. The appellants submitted that it would not be as great as found by the primary judge, but the evidence was that defective fixing of the ceiling may not readily be discovered, and a decision to investigate would commit the hotel owner to possibly large expense and interruption to trading. 99In my view, Mr Alden's opinion would be well open to the competent structural engineer. The course reasonably taken by the structural engineer would begin from the task required of him or her, that is, certification that the hotel building was structurally sound and capable of withstanding the likely loadings arising from its use. This was concerned with structural elements, not the ceilings. Loads were not placed on the ceilings (except perhaps from light fittings, for example), but rather the ceilings placed loads on the structural elements; see in the minutes of the experts' meeting that "[t]he installation of a ceiling would not be considered a 'structural alteration', but it is an alteration which potentially by virtue of any change of load, could affect the building structure". In my opinion, the plaintiffs (and thus the appellants) did not establish that, had Stonewall provided the relevant information to Mr Byatt, the adequacy of the fastening of the ceiling would have been investigated by the competent structural engineer.

(b) The vibration expert's advice 100The primary judge implicitly found that the vibration expert would have advised that there was no problem with the floor of the second level, see [130]-[132] set out at [51] above. It followed from Mr Alden's evidence that the competent structural engineer would not have been caused to investigate the adequacy of the fastening of the ceiling. 101The appellants submitted that the finding was flawed. They said that it was founded on vibration testing after the collapse of the ceiling, when bracing had been added, and that it was not consistent with the experts' statement in the minutes of their meeting - "a) We would not expect vibration monitoring to require any opening up as accelerometers can normally be clamped or otherwise fixed to accessible locations., b) We do not believe that we can comment on what conclusion any specific testing would have been at that time, that is prior to the collapse and any post-collapse modifications carried out (we understand that some floor bracing and joist and fixings were added post-collapse but prior to the testing by Renzo Tonin)." 102If the finding was not warranted, there was no evidence that the vibration expert would have advised that there was a problem with the floor of the second level. In answer to the suggestion that in that event they had failed to prove their case, the appellants submitted that the absence of evidence was because the primary judge restricted the course of the concurrent evidence. 103The post-collapse vibration testing resulted in certification "that the level 2 dance floor has sufficient capacity for short term dynamic loading (dancing) in accordance with relevant Australian Standards". The testing was with a maximum of 16 persons dancing, but with calculation for a design case of 150 people dancing. 104Although the evidence was not specific, it appears that bracing was installed prior to the testing. The evidence of Mr Byatt to which the primary judge referred at [131] was not quite as his Honour said; it was that the bracing "is quite irrelevant to this - this area", apparently as a consequence of the stripping of the lath and plaster ceiling. The reference to "this area" is not entirely clear, but appears to have been to the collapse in general. 105In the course of the concurrent evidence Mr Barry described his calculation of deflections in the floor, which he found to be excessive. The primary judge observed that vibration testing after the collapse found the structural integrity of the floors to be adequate. Mr Barry said that that was "after alterations had been made", and his Honour said, "I will not take that up, it hasn't been pursued in the issue". The transcript continues - "WITNESS FISHER: That was done on the fact that it was done [sic] on a stiffened system. SEXTON: We have never seen Mr Barry's calculations. HIS HONOUR: And they were also based on assumptions which are contrary to the assumptions I have asked him to take into account. You can explore to the extent you wish. Does anybody want to add anything else before the barristers ask questions restricted to that topic, that is what do you say was required of a structural engineer to fulfil the retainer? WITNESS ALDEN: I have something to say in response to Mr Fisher but I have forgotten what he said now. HIS HONOUR: He said didn't the vibration specialist test the floors after and they were found to be adequate. Of course he made the comment that there had been additional strengthening or stiffening applied. WITNESS ALDEN: Yes. I wanted to note the difference is speed brace which is light horizontal bracing which would not affect the vertical behaviour. HIS HONOUR: We have not gone into that in the report so I'm not going to raise that." 106I do not understand the primary judge to have confined the evidence on bracing as affecting the post-collapse vibration testing. His Honour said that he would not raise it, but to that point in the concurrent evidence he had been directing the course of evidence and his observation reflected that he was turning it over to counsel to ask questions of the structural engineers. Counsel then serially asked questions of them. 107The primary judge said as to Mr Barry's calculations, plainly enough encompassing the post-collapse vibration testing to the contrary of the calculations, that counsel "can explore to the extent you wish". When concurrent evidence is being taken with a degree of direction by the judge, counsel are not passengers. They can and should seek to raise material issues and put material questions to the witnesses who occupy the hot tub, if necessary submitting that the judge's view of how the evidence should be brought out should be modified. Counsel for the plaintiffs had the opportunity to clarify how the post-collapse vibration testing was affected by the bracing. Mr Alden gave important evidence, that the bracing "would not affect the vertical behaviour". The opportunity to challenge this was not taken up. 108In my view, the primary judge was entitled to find that to the extent there was evidence on the point it was to the effect that there was no vibration problem with the floor, a qualified finding which accommodated the structural engineers' inability to comment as to "any specific testing" prior to the collapse. If that overstates the evidence, no finding could be made and the plaintiffs failed to prove that there was a vibration problem with the floor which would have brought about investigation of the fixing of the ceiling.

(c) Authorising an investigation 109With respect, again I have some difficulty with the primary judge's reasons. Assuming the preceding steps in the appellants' favour, the hypothetical structural engineer has been alerted to possible structural deterioration, and has been advised by the vibration expert that there is a problem which the structural engineer considers calls for investigation of damage to non-structural elements of the building. If the structural engineer had told Stonewall of this and advised making further investigations, relevantly of the fixing of the ceiling, Stonewall would have had little choice. It is unlikely that the structural engineer would provide a certification satisfactory to the Council unless the further investigation was carried out, and Stonewall had to obtain renewal of the POPE licence in order to continue trading as before. 110The clear likelihood is that Stonewall would have authorised an investigation. Terminating Byatt's retainer and engaging an unscrupulous structural engineer who would certify may be surmised, but not as a realistic prospect. I do not think that this aspect of the primary judge's reasoning as to causation should be upheld. However, that does not affect the result.

Orders 111In each appeal, appeal dismissed with costs. 112SACKVILLE AJA : The appellants were injured on 24 November 2002 when the ceiling of the first floor of a social club collapsed, in the circumstances described by Giles JA. The origins of the collapse lay in the defective installation of the ceiling in 1993, specifically the defective mode of attachment involving the use of inadequately sized and poorly fixed screws. 113The primary Judge found that the respondent (" Stonewall "), as occupier of the premises, owed a duty to the appellants to take reasonable care to avoid a foreseeable risk of injury. His Honour also found that Stonewall breached its duty of care by failing to brief a firm of structural engineers (" Byatt "), which had been engaged to prepare a report for the purposes of renewing the Place of Public Entertainment licence (" POPE licence "), with all relevant information. The missing information comprised the so-called Harper email of 11 June 2002 and the letter from Council dated 18 June 2002 (both of which are set out in Giles JA's judgment ([25], [26]). 114The Harper email expressed concern about the movement of the floor boards on the second floor when large numbers of people were jumping up and down. The email asked whether a structural engineer had certified the loading for a nightclub and whether: "sufficient attention [has] been given to the fact that the building is old, and the materials of construction would be deteriorating over time - possibly hastened by its current use." The Harper email concluded by expressing " concern and worry ... that the third [sic] level of Stonewall is going to collapse one day ". 115The Council's letter said that in order for the Council to address an application for a POPE licence: "A certificate is to be submitted from a structural engineer which states that the premises is structurally sound and is capable of withstanding the loadings which arise from the use (particularly reference is directed to the floor loading/deterioration from dancing-jumping over the years). The chosen engineer has to be a Council Registered Engineer . ..." (Emphasis in original.) As Giles JA has pointed out (at [27]), the terms of this letter followed the language of cl 7(2)(a) of the Local Government (Approvals) Regulation 1999. 116Within six months of the Harper email and the Council's letter being sent, and within three months of the POPE licence being renewed on the faith of Byatt's report, the first floor ceiling of the premises duly collapsed. A lay person might be forgiven for thinking that in these circumstances it is inevitable that Stonewall be held liable for the injuries caused to the appellants. After all, Stonewall had been warned of a danger created by large numbers of people jumping up and down, particularly in view of the age of the building and the deterioration of the materials used in its construction. Stonewall had been negligent in its response to the warning. Certainly the ceiling would never have collapsed had the installation not been defective in the first place. But the ceiling had survived for nine years and had the relevant components of the ceiling been inspected in mid-2002 the problem would have been discovered and, doubtless, rectified.

THE PRIMARY JUDGE'S REASONING 117Yet the appellants failed at trial in their claim against Stonewall. They failed because the primary Judge was not satisfied that Stonewall's breach of duty was a material cause of the injuries they sustained. His Honour found that even if a competent structural engineer had been briefed with the two letters, the engineer would not have undertaken or caused inquiries to be undertaken that would have discovered the defect in the ceiling which led it to collapse. 118The primary Judge accepted (at [120], [123]) that Stonewall breached its duty of care to the appellants by failing to advise Mr Byatt of the Harper email and by failing to provide Mr Byatt with " full information about what activities were being carried on at that level of the hotel ". The primary Judge also found (at [123]) that the risk of the floor on the second level of the hotel collapsing was clearly foreseeable and that a reasonable person in the position of Stonewall would have taken steps to have the structural integrity of the floor on the second level assessed. However, his Honour considered (at [125]) that it was not foreseeable that the ceiling on the first level might collapse. 119The primary Judge identified (at [125]) the " critical issue " as whether Stonewall's breach materially contributed to the collapse of the ceiling " in terms of factual causation as set out in s 5D of the [Civil Liability Act 2002]". His Honour said (at [126]) that to resolve this issue: "it is necessary to have regard to what Byatt would have done had it been provided with relevant information about the hotel's activities and the observations of Mr Harper and his partner or as the plaintiff put it, what a hypothetical competent structural engineer would have done if his retainer had included that information ." (Emphasis added.) 120According to his Honour (at [127]), the evidence as to what a hypothetical competent structural engineer would have done in these circumstances was " all one way ie the appropriate response was to retain a vibration expert ". His Honour considered (at [131]-[132]) that the engagement of a vibration expert would not have led to the defects in the ceiling being discovered. That followed from the fact that when vibration experts tested the floor after the collapse of the ceiling, no vibration problem was identified. Mr Alden's evidence, which his Honour accepted, was to the effect that (at [132]): "before there was some possibility, let alone likelihood, of the ceiling on the first level of the hotel being examined, there would have to be a finding by the vibration expert that there was a vibration problem with the floor. If no such finding were made a competent structural engineer would take no further action." 121Giles JA explains, correctly in my respectful opinion, that at least two aspects of the primary Judge's reasoning were erroneous (at [76]-[77], [109]). Partly, although not exclusively for the reasons given by Giles JA, I think that the primary Judge was wrong in finding that the evidence was all one way as to what a competent structural engineer would have done if properly briefed. There was considerable evidence to suggest that a competent structural engineer, having received the Council's letter and the Harper email, should have either undertaken investigations into the soundness of the ceiling or advised that such investigations be undertaken. That evidence also suggested that the collapse of the ceiling was reasonably foreseeable by an occupier who paid appropriate attention to the contents of the Council's letter and the Harper email.

EXPERT EVIDENCE 122Three independent structural engineers gave evidence relevant to causation. Mr Fisher was retained by the plaintiff; Mr Barry by Stonewall; and Mr Alden by Byatt. It is helpful to set out their evidence at some length.

Mr Fisher's Reports 123Mr Fisher's view from the outset was that a structural engineer who had received the Council's letter and the Harper email would have caused an assessment to be made of the ceiling. Because of the way the case was conducted, Mr Fisher expressed his opinion in the context of assessing the reasonableness of the conduct of Byatt, rather than in relation to causation. Nonetheless his opinion was material to causation. 124In his first report of 14 February 2005, Mr Fisher commented, on Byatt's report of 12 August 2002 (prepared prior to the collapse). Mr Fisher said that: "In view of the reported age of the building (circa 1920-1930) and the normal deterioration that accompanies it, the condition of the timber fasteners holding the original timber lathe to the joists and the integrity of the plaster needed to be assessed in this instance particularly in light of the type of occupancy/use being made of the 2 nd floor (POPE licence having been in existence for 5 years) and the earlier decision to leave the original ceiling in place when installing the new fire-rated suspended ceiling." In this context, Mr Fisher noted that the Council's letter had made particular reference to the floor load deterioration from dancing- jumping over the years. 125In his second report of 24 March 2006, Mr Fisher restated his view that Byatt had failed to act in a manner consistent with that to be expected of a reasonably competent structural engineer: "for the reasons already outlined above, a prudent Structural Engineer would, at the very least, have investigated a representative panel of the direct-fixed ceiling framing and a representative panel of the suspended ceiling framing (primary and secondary support members, hanger attachments etc) or, alternatively, have requested this work be undertaken by a representative of the ceiling system manufacturer ... Design and specification of proprietary suspended ceiling systems is not the general province of most Structural Engineers and many proprietary components are designed and certified by way of physical testing as permitted by AS 2785:1985. Nevertheless, Structural Engineers do and are capable of supervising/checking as-constructed installations for compliance with the manufacturer's specifications. This was not done by [Byatt] for a representative panel at each direct-fixed and/or suspended ceiling level." 126The primary Judge did not accept Mr Fisher's opinion that Byatt had breached its duty, largely because his Honour found that Byatt had not been given the Council's letter and the Harper email. Byatt's duty of care was marked out by the limits of its retainer and thus could not encompass the responsibilities attributed to it by Mr Fisher. 127But the rejection of Mr Fisher's opinion as to Byatt's duty of care does not mean that Mr Fisher's opinion should not be accorded weight insofar as it is relevant to the question of causation. As the following extracts from his second report indicate, Mr Fisher attached considerable significance to the wording of the Council's letter in expressing his opinion as to the response expected of a competent structural engineer: "1. ' [Byatt] appear to allege that they were only required to inspect the structural capacity of the floors whereas correspondence from South Sydney Council required that comment on the structural capacity of the building in general .' In my opinion, [Byatt] as the only structural consultant/expert advising Stonewall ... (and for that matter Council) as to the structural adequacy and hence implied safety in use of the premises as a nightclub, had, as a professional engineer, a responsibility to investigate not only the structural adequacy, serviceability and condition of the primary and secondary floor framing elements but also the same parameters with respect to attachments to the underside of the floors such as suspended ceilings, equipment etc and, in particular, to have made recommendations as to the removal of the old lath & plaster ceiling from any supporting floor area affected by dance floor vibrations. Certainly [the Council's letter] required the structural engineer to certify that 'the premises is structurally sound ...' and this implies certification of more than just the floors; elements such as to stairs between levels are obvious additions/omissions as would be the ceiling/roof structure to the Second floor . Furthermore, such a broad description would, in my opinion and that of a suitably qualified and experienced Structural Engineer, have required certification of the foundations by a Geotechnical Engineer. (Emphasis added.) ... 2. ' When undertaking an inspection as to the structural capacity of a building in general, would it be reasonable for a competent expert to assess a suspended ceiling attached to the floors? ' Yes; refer also [to] comments under 1 above." 128In his third report Mr Fisher said, in relation to the terms of Byatt's engagement, that: "The certification of structural adequacy, even if restricted to the suspended 1 st and 2 nd floors, is intended to ensure that such floors are safe for the intended use and hence without risk to users/patrons. In my opinion, it is inconceivable that a Structural Engineer could certify the floors without such certification including the attached and/or suspended fire-rated ceilings etc, failure of which should have been appreciated by such an engineer as being of extreme hazard to patrons. Byatt should have at least advised his client that his 'certification' did not extend to the attached and/or suspended fire-rated ceilings etc and that these elements should also be adequately inspected and certified either by extension of his interpretation of his brief or by other suitably qualified and experienced persons acceptable to Council ." (Emphasis added.)

Mr Barry's Report 129Mr Barry's view was that Byatt, in carrying out the pre-accident work, had not exercised the care and skill expected of an ordinary skilled structural engineer. He justified that view without reference to the Council's letter or to the Harper email: "These days, including as at July/August 2002, most local government and statutory authorities rely solely on the integrity of a structural engineer's certification for the issuing of building and POPE licence approvals. South Sydney Council maintains a list of approved structural engineers for construction work within their region. In my experience, Council will accept certification from these as-listed engineers without recourse to the engagement of a checking consultant. In this professional environment, it is up to the consulting structural engineer to be precise when inspecting buildings for the purpose of certification. Whilst the POPE licence rightly focuses on the structural adequacy of floor systems subject to crowd loading, a skilled engineer would have undertaken a survey of the structural engineering condition of the building as a whole and identify any building issue that could affect the use/exercise of the POPE licence by the Hotel. In my opinion, even if Byatt's [pre-accident] report of 12 August 2002 was not required in connection with a POPE licence, an ordinary skilled structural engineer in the circumstances of Byatt's retainer would have undertaken a survey of the structural engineering condition of the building as a whole in any event. The building elements affected by the Hotel's use of a POPE licence are: the ground, first and second floor structures; roof structure; ceiling; columns; walls; and footings. Other elements of concern for this Hotel would have been the juxtaposition of penetrations of structural elements to accommodate building services such as: fire service and plumbing pipework; electrical services; and, mechanical services and air conditioning ductwork. I consider that a skilled structural engineer would have surveyed these elements and included their condition in their report, pre-incident. Any uncertainties and/or limitations encountered during such an inspection should have been noted in and expressly excluded as not being certified by the engineer in the report."

Mr Alden's Report 130Mr Alden's opinion, accepted by the primary Judge, was that Byatt had exercised the appropriate level of skill as a structural engineer in discharging the retainer, having regard to the limited terms of the retainer. However, Mr Alden considered that the Harper email and the Council's letter would both have been relevant to the deliberations of a structural engineer commissioned on the basis of a retainer such as that issued to Byatt. 131Mr Alden said this about the Harper email: "Firstly, the email suggests that the approved occupancy capacity of the second floor was being exceeded. Both sets of [approved] drawings nominate a capacity for the Second Floor level area of 150 people, whereas the email suggests that more than 200 people were dancing/jumping. That is, the email suggests that the area was being used in a manner not in accordance with the development application and not in accordance with the Council approved drawings. Secondly, the email suggests that the area is being used as a nightclub for 'dancing/jumping' rather than the 'Hotel Seating & Standing' area shown on the drawings. This is despite the extensive seating provided at this level and the very small area of timber dance floor ... That is, the email suggests that the area was being used for activities quite different to those that might be expected from a review of the documents provided ... and quite different to that which might reasonably be anticipated from a normal inspection of the premises. Thirdly, the email raises specific concern about the response of the structure to those activities, suggesting that they may be causing harm to the building by hastening deterioration . I believe that the receipt of such a communication would have significantly affected a structural engineer's approach to such a commission . For instance, a cautious and diligent consulting structural engineer might well have declined to accept or proceed with the commission on receipt of information suggesting that the useage of the area was not in accordance with Council approvals, or alternatively suggest that another firm of engineers with specific expertise in dynamic issues be engaged (if the engineer did not consider that he had sufficient specialist expertise in relation to dynamic issues). If the engineer did proceed with the commission, I believe that it is likely that the concerns expressed would have prompted further enquiries, such as enquiries with Council to see whether the activities described in the email were in fact permitted and would be allowed by Council to continue, and enquiries with Mr Harper to better understand his concerns and observations. The email may also have prompted the engineer to recommend to the proprietor of the hotel that he also engage other specialists (such as building consultants) to consider whether there was damage being caused to non-structural elements of the building, and to specifically note that his investigations were limited to the structural elements of the building . In addition, it may have prompted the engineer to extend his investigations to look more closely at locations such as the end bearing locations of joists to ensure that packers had not come loose or grout under the ends of joists and beams deteriorated." (Emphasis added.) 132Mr Alden thought that the contents of the Council's letter were also relevant to the approach that a competent structural engineer would take to the commission: "Firstly, it states that a certificate regarding structural adequacy is required, not just a confirmation and/or certificate confirming that the floors are generally unchanged as stated in Creighton's letter of 3 July 2002. That is, the requirements of the Council facsimile are more specific and demanding than those set out by Creighton in his letter of 3 July 2002. Secondly, it specifically refers to deterioration from dancing - jumping over the years. This would have alerted the structural engineer to the existence of a concern about the type of activity and its effects on the building, and prompted further enquiries to ascertain the nature of activities and the extent of Council permissions . The receipt of such a communication might have significantly affected a structural engineer's approach to such a commission ..." (Emphasis added.)

Concurrent Evidence 133In the course of the expert's concurrent evidence, Mr Webb SC (who appeared for the then plaintiff) asked questions which, as he explained, were not intended to be confined to the terms of the Byatt retainer but went to Stonewall's position. The primary Judge indicated that the questions should initially be directed to the appropriate response of a structural engineer to the specific retainer pursuant to which Byatt was engaged. In that context the following exchange occurred: "HIS HONOUR: I think what is being put, Mr Fisher ... is if a competent structural engineer had been made aware of the contents of Mr Harper's email and had been given the retainer which I have asked you to assume, in your opinion would the steps which that person have taken led to an examination of the ceiling on the first floor, and then Mr Webb expanded that by saying both from the top or from the bottom, ultimately, as I understand what he was getting at, leading to the discovery of the inadequate fixing of the ceiling. ... WITNESS FISHER: I will reply to the question that I believe I am being asked and I will expand on it if you elaborate further. If an engineer, our fictitious engineer, had been given that email, which from memory identifies significant dynamic response and resonance of the dance floor with potentially overcrowding relative to a POPE licence numbers limitation, I believe he would have immediately realised that a dynamic analysis would need to be done for the floors that are there, that there may need to be better control on the limitation of numbers of people that are on the floor by the people who run the facility, and because of the risk of collapse of the attachment of things to the floor joists of the suspended floors I would have expected that engineer to take steps to check the adequacy of such fasteners , particularly those subject to the dynamic resonance and impact factors associated with the floor vibrating. HIS HONOUR: Mr Barry, do you agree with that assessment? WITNESS BARRY: Yes, I do. ... WITNESS BARRY: Just to emphasise the point that the email itself confirms that the area is subject to overcrowding and it has happened, so basically that puts an onus on the engineer to go carefully, but also puts the onus on the proprietors to ensure that the crowd numbers are controlled. HIS HONOUR: I think the thrust of Mr Webb's question was really directed at whether the line of inquiry followed by a hypothetical engineer would have eventually led to an examination of the fastening or the adequacy of the fastening of the ceiling. Mr Fisher says it would have. Do you agree with that? WITNESS BARRY: Yes, because it is indicative, it gives an indication of structural performance under the loading of a highly active crowd, and that includes inducing vibration and amplifying the deflections that are already there, which could have an effect on the adequacy of the structure." (Emphasis added.) 134Mr Alden was then asked to comment: "WITNESS ALDEN: I was going to say if the first assumption is the engineer has got this document, I was going to say if the next assumption is there is no known council restriction which would cause him to walk away from it because it was an unauthorised use, then I think the first thing he would do is recommend to this client that he would get dynamics people involved . I think there's sufficient concern raised with this that an engineer such as myself would feel that it's getting out of his area of expertise . Once you've got the dynamics people involved I think then it would depend on where that investigation took you. If they investigated it and said, look, really the vibrations are negligible, it's not an issue, you know, they are not going to cause any damage or anything of the magnitude that would normally be expected to cause damage then that might be the end of it. If, on the other hand, they said, look, these vibrations that are being generated by this activity are sufficient to cause maybe damage to the finishes or something like that, it may be in that circumstance it would lead on to further inquiries. But I think it would depend entirely on the outcome of the advice you got from the other dynamics experts. ... WEBB: ... Mr Alden, I want you to further assume that our notional engineer did what Mr Byatt did and looked at the ceiling of the ground floor and made some observations there about the continued existence of old lath and some plaster remaining on the underside of the joists. In the context of having this email, would that not mean that our notional engineer would himself be led to want to see what was, if anything, attached by way of lath and plaster attached to the joists on the floor above, with a view to contemplating the possibility of delamination? WITNESS ALDEN: It's a difficult one to answer because a lot of these things are a bit of suck it and see if you are involved in a job like that. I still think the first reaction to that would be to get dynamics people involved, and I think a lot would come out of what they tell you, because you can have vibrations that feel quite disturbing but really structurally are of no consequence whatsoever . I mean that in fact is the common situation, that even though people may be concerned about what vibrations feel like, that structurally in terms of a percentage of the gravity force it is negligible. WEBB: I thought all of you agreed that with an old building like this, if there were lath and plaster ceiling affixed to the underneath of the joists of that floor then you would certainly want to know about them because of the risk of delamination in such an old building, wouldn't you, and that delamination falling down on the ceiling and the suspended ceiling below. WITNESS ALDEN: It really depends, quite simply, if the ceiling had been properly installed it wouldn't have been a problem . ... WITNESS ALDEN: Yes. It's really a matter of whether something triggers you to investigate that option. But, as I say, I think really what I'd would do is initially get the dynamics people involved and then I would be influenced by what they tell me. In other words, if they say, 'Yes, what's happening here is really of significance', then I might well consider taking it further. If they come back and say, 'It's not significant. I may be worrying some people, but it's not really a practical issue and you don't have to worry about it', I would probably not take it further ." (Emphasis added.) 135Mr Webb then made it clear to Mr Alden that his questions were directed to the position of a reasonably competent engineer asked to consider the Harper email, although the questioning does not seem to have included reference to the Council's letter. The following exchanges occurred: "WEBB: ... We are assuming that this is a notional engineer who doesn't have any restriction on his retainer and who's just given this document by the occupier and is said, 'Gives us some advice and tell us what we have to do'. ... WITNESS ALDEN: I was thinking of the context of being on the floor. My reaction would be to get the dynamics people involved. ... WEBB: Could I bring you back a little bit and try to break it up into bits. Would you have opened up some more floor boarding areas? For example,[as] Mr Fisher has suggested in another context, to look to see if above the suspended ceiling you could see the existing lath and plaster ceiling secured to the underneath of the joists. WITNESS ALDEN: I'm just trying to think though it. It's a general retainer to sort of do anything you need to do to respond to this? WEBB: Yes. WITNESS ALDEN: It's a fairly difficult one because, I mean, in a sense, you might say, 'Well okay' - it does specifically refer to the second floor, does it? ... WITNESS ALDEN: I can really only answer it on the basis of some assumption of what the results of the dynamic investigation are: ... WITNESS ALDEN: ... if the results of the dynamic investigation were these were material vibrations - in other words, they were likely to affect instrumental performance, and in terms of G forces they were significant and not trivial - then I would certainly start talking to the client about where that might lead, and maybe that would lead to looking at the floor and maybe it would lead to looking at the ceiling. Again, it depends very much on where the dynamics goes. If they say really what you have got is trivial and you don't need to worry about it, you may not go any further. WEBB: I ask you to accept the accuracy of the observations which are contained in this email. From your experience, Mr Alden, you wouldn't have got a response from a dynamics engineer saying that this was a - indicating a trivial result, would you? WITNESS ALDEN: No, I can't say that, because it's a common problem that people's perceptions of vibrations are out of all proportions to the structural significance of those vibrations ... WEBB: ... I suggest to you that this is not just a question of vibration, but a question of observation, and ask you to accept without any reservation the factual matter which is contained in this document, including suggestions, for example, that the centre of the room was moving under weight at a measurable magnitude. WITNESS ALDEN: Well, I think in a sense I've answered, in that I've said I would get a vibration expert involved and if they advised me that it was structurally significant, which I think you're asking me to assume, then I would possibly head down the path of looking at the floor structure and maybe the ceiling as well. ... WEBB: Would you see the occurrence of the fall of the ceiling itself as being demonstrative of a positive result from a dynamic engineer? This accident did happen, didn't it? WITNESS ALDEN: Well, yes. But we don't know - what we do know is that the fasteners were entirely inadequate and the ceiling was at the risk of falling from the date it was installed in 1993, and I would say at risk of falling with or without any jumping up and down or dancing, or anything like that. It was a grossly inefficient installation. So it's just a matter - it's a miracle that it didn't come down before, that's all I can say. ... WEBB: Assume there were 70 people cavorting up there, your Honour, you would have to accept, wouldn't you, Mr Alden, on that basis there was likely to be some causal connection between what was happening on the upper floor and the fall of the ceiling at that time? WITNESS ALDEN: Well, no, I can't be certain. I mean there could have been. WEBB: I won't ask you to be certain. We well know that you were only --- WITNESS ALDEN: I don't know what the 70 people were doing, or it was the same activity when Mr Harper was there. I have been in situations where something has been structurally weakened and then some time later in the middle of the night, for instance, has suddenly fallen down. And the real issue has not been - in fact it's been surprising that it hasn't fallen down when you would expect the load to be at the greatest. So there may well be a causal link, but I can't be certain of that." 136Mr Fisher was asked to respond. He reiterated the opinion expressed in his reports: WITNESS FISHER: I'm reading this email and at this stage I'm making reference to item 3, the penultimate paragraph, which says has sufficient attention been given to the fact that the building's old and the materials of construction would be deteriorating over time, possibly hastened by its current use. On the surface, it would suggest that this dancing dynamic use of that particular floor might not have been current for so many years. Certainly with the inadequate fastenings of that suspended and direct fix ceilings, time and the dynamic effects associated with the springiness of the floor and the dancing would have had a detrimental effect on the strength that was associated with those fastenings . So I would think that the additional dynamics and, hence, the additional gravitational impact load exerted on those fastenings would have been worse when it was used as a nightclub with positive dancing effects. And I just want to understand why somebody would not consider investigating something like that suspended ceiling, because any risk assessment - and this isn't a new term; risk assessment has been back in the Australian Standards back in 1985 - somebody needs to look into it. And I don't know anybody else who's protecting the public interest if the engineer doesn't. WEBB: Right. Could I take you a little further down, Mr Fisher? I was asking you, rather, to address yourself to the situation of our notional engineer who is given the email and is asked to take on the task of advising the occupier/client about what he should do in relation to the information in the email. WITNESS FISHER: Yes. WEBB: Now, you've already said in another context, and that was what his Honour - partly what his Honour took you to at the end of his Honour's questions - you have already said in another context that you would have expected that the existence of the lath and plaster ceiling fixed on the bottom of the joists would be disclosed by an appropriate removal of the floorboards above the suspended ceiling, and that in another context you would have expected then that there would have been a recommendation by the structural engineer that that ceiling be removed forthwith. Do you maintain that opinion on the basis of a different context, namely, this context; namely, a notional engineer - not Mr Byatt but a notional engineer - with no limited retainer, just this document, would you have thought that that notional engineer competently would have investigated the situation of whether there was any remnant lath and plaster ceiling beneath the joists and, if you found it, to have recommended its removal? WITNESS FISHER: I would have recommended its removal. Even more so given the contents of this email . WEBB: Yes. WITNESS FISHER: And to remove that obviously means to either remove the flooring or remove the fire rated ceiling beneath it to get the - it would be easier to remove the fire rated ceiling because gravity takes everything down rather than trying to move it up through floor joists. WEBB; Leaving aside the question of removing the lath and plaster ceiling, would you have, as our notional engineer just looking at this email, have gone on to investigate the situation of the ceilings and in particular the ceiling that fell down? WITNESS FISHER: Yes, I would have to check Rondo's installation recommendations and specification. I wouldn't be surprised if they say that the ceilings aren't to be used where dynamic loads exist. I just can't recall, but, if I was uncertain, I would have made that request to Rondo, 'Hey look, we have gone and got the letter and got your ceilings there'. WEBB: Mr Fisher, could we leave that aside? That raises something I don't particularly want to raise, so let's leave that aside for one moment. But if you were given this email and you accepted unreservedly as facts the material in it, would you, as your notional engineer, have instigated an inquiry into the way in which both the gyprock and the suspended ceiling had been erected? WITNESS FISHER: Yes. WEBB: And that inquiry would, in the ordinary course, no matter whether it would be extensive or very limited, have very quickly disclose, would it not, that the fixing of both the fixed ceiling and the suspended ceiling was completely inappropriate? WITNESS FISHER: Yes." (Emphasis added.) 137Mr Barry agreed with Mr Fisher's analysis.

ANALYSIS 138The primary Judge was critical of aspects of the evidence of Mr Fisher and Mr Barry. In his Honour's view (at [77]), they: "seemed to suggest that because the work which Byatt had been retained to perform was being carried out in the context of the renewal of a POPE authorisation, the obligation of Byatt was to go beyond the terms of its retainer and in some fashion, carry out a safety audit of the whole building." 139There being no appeal from the decision in favour of Byatt, it can be accepted that his Honour's criticism was well-founded. But as I have indicated, the finding that Mr Alden's more restrictive approach to Byatt's obligations under the actual retainer was preferable does not require a finding that the views of Mr Fisher or Mr Barry should not carry weight on the question of causation, particularly when the objective facts are taken into account. 140The critical question on causation was whether the breach of duty by Stonewall materially contributed to the collapse of the ceiling and thus to the injuries sustained by the appellants. The answer to that question, as the primary Judge accepted and Giles JA also accepts, depends on what a competent structural engineer retained to furnish a certificate would have done if armed with all the correspondence and information that Stonewall should have provided. If, on the balance of probabilities, a competent structural engineer would have investigated the structural integrity of the ceiling or recommended that another qualified person should do so, it would follow that Stonewall's breach of duty materially contributed to the appellant's injuries. Had those investigations been carried out competently there is little doubt that the defects in the ceiling would have been discovered and rectified. 141The Harper email is one of the documents that Stonewall should have given to the structural engineer. It expressed concern about the flex or bounce movements of the floor boards. The primary Judge found that, having regard to the results of the post-accident vibration tests, the movement of the floor boards, of itself, was not indicative of a structural problem. 142But the Harper email did not only express concern about bounce movement. It asserted that 200 people were jumping up and down on the floor above the ceiling. As Mr Alden pointed out in his report, this indicated that the area was being used in a manner and for purposes not contemplated by the development approval. Moreover, the email directed attention to the age of the building, the materials used in its construction and the likely deterioration of the materials over time given the use. The expression " materials of construction ", used in the Harper email, was apt to include the means by which the first floor ceiling was affixed to the underside of the second floor. The " obvious concern and worry " identified by Mr Harper was not confined to the collapse of the floor , but was expressed in terms of the possible collapse of " the third [sic] level of Stonewall ". 143The Council's letter required a certificate from a structural engineer stating that " the premises is structurally sound and is capable of withstanding the loadings ", having regard to the possibility of deterioration from dancing and jumping over the years. As a matter of ordinary English, this would seem to require attention not merely to the flex or movement of the floor, but to the structural integrity of any part of the premises that might pose a significant risk to patrons. Indeed, it is not apparent how a certifier could be satisfied that the premises were capable of withstanding the loadings without considering, or recommending that proper consideration be given to, the integrity of the ceilings. 144This construction of the letter is reinforced by cl 7(2) of the Local Government (Approvals) Regulation 1999, some of the language of which was incorporated into the Council's letter. Clause 7(2) provides as follows: "(2) If the application relates to an existing building or temporary structure, the council must not approve the use of the building or structure as a place of public entertainment unless the council, having regard to the circumstances of the case, is of the opinion that the building or structure , with such alterations as it may require: (a) will be structurally sound and capable of withstanding the loadings likely to arise from the use , and (b) will contain reasonable provision for the safety of persons proposed to be accommodated in the building or structure, in the event of fire, particularly in relation to egress, and (c) will contain reasonable provision for the prevention or suppression of fire and the prevention of the spread of fire." (Emphasis added.) 145The regulation itself must be interpreted in the light of the definitions of " building " and " premises " in the Dictionary to the Local Government Act 1993: " building includes part of a building and any structure or part of a structure ... Premises means any of the following: (a) a building of any description or any part of it and the appurtenances to it; (b) land, whether built on or not; (c) a shed or other structure; ..." 146The construction accorded to the Council's letter and the Harper email by a court after the event does not necessarily dictate what a competent structural engineer would have done if briefed with that correspondence. It could be, for example, that the established practice of structural engineers, having regard to the limits of their expertise, is to comment only on the structural integrity of a building, excluding affixed ceilings, notwithstanding that the letters seeking advice might be read more widely. Or the practice might be to seek additional advice as to the integrity of the ceilings, but only from a vibration expert. 147The experts differed somewhat in their approach as to what would be expected of a competent structural engineer. Mr Fisher and Mr Barry were strongly of the view that the Council's letter would alert a competent structural engineer to the need to examine the integrity of the ceiling affixed to the second floor. It is true that both thought that a structural engineer asked to provide a POPE certificate should have examined the integrity of the ceiling or cause someone else to do so, regardless of whether the engineer had received the Council's letter and the Harper email. But they considered that the terms of the Council's letter made it clear that the role expected of a competent structural engineer extended to examining or instigating an examination of the ceiling and was not limited to engaging a vibrations expert to assess the significance of the " bounce " of the floor at the second level of the building. 148In Mr Fisher's view, the Harper email should have alerted a structural engineer to the dangers posed by the increased dynamic use of the floor, including dangers created by a suspended ceiling that may not have been installed in the correct manner. Mr Fisher said that he would have checked the installation of the ceiling or at least have instructed others to do so. Mr Barry agreed, pointing out that the email had highlighted overcrowding on the premises and the desirability of undertaking more investigations into the state of the ceiling. They were both obviously influenced by the rather obvious consideration that these premises were used by a large number of people acting boisterously and that a collapse of the ceiling could have serious, if not catastrophic, consequences. 149Mr Alden's position, as stated in his concurrent evidence, was that a competent engineer would have called in a vibration expert to advise as to whether the vibration of the floor on the second level had structural significance. If the vibration expert advised that the vibrations generated by the dancing and jumping was not significant from a structural point of view, Mr Alden indicated, not without some hesitation, that he would not take the matter further. Mr Alden's opinion clearly rested on the assumption that if the ceiling had been properly installed in the first place, there should not have been a problem. 150However, it is necessary to take account of Mr Alden's written report, in which he specifically considered the significance of the Harper email (at [131] above). In summary, he thought that the email suggested that:

the approved occupancy capacity on the second floor was being exceeded;
the area was being used in a manner not contemplated by the development approval and for activities quite different to those indicated in the documentation submitted to the Council; and
the activities might have been causing deterioration of the building. 151Mr Alden accepted that a " cautious and diligent " engineer might have declined to proceed with the commission or, alternatively, might have recommended the engagement of a firm with expertise in dynamic issues. Significantly, Mr Alden stated that if the engineer proceeded with the commission, he or she would have made further inquiries of the Council and Mr Harper to better understand the latter's concerns. Even more significantly, Mr Alden thought that the email might have prompted the engineer to recommend the engagement of other specialists, such as building consultants, to consider whether damage was being caused to non-structural elements of the building. In addition, he thought that the engineer might have been prompted to look more closely at locations such as the end bearing of joists in order to detect signs of deterioration. Mr Alden considered that the terms of the Council's letter were also significant, particularly in directing attention to possible deterioration of materials resulting from the dancing and jumping that took place on the second level over the years. 152Considered as a whole, the evidence in my view supports a finding that a competent structural engineer, armed with the Council's letter and the Harper email, probably would have undertaken enquiries to ascertain whether the suspended ceiling was sound or recommended that a specialist undertake such enquiries. The issues identified in the correspondence went beyond suggesting that the vibrations experienced by patrons while dancing and jumping on the second floor might, of themselves, have structural significance. The correspondence should have alerted a competent structural engineer to the possibility that the totality of activities conducted on the second level of the building might have affected the integrity of the first floor ceiling. As all the experts accepted, the correspondence indicated that the use of the second floor by hundreds of people dancing and jumping had not been contemplated in the development application for the premises and there was apparently a risk of deterioration of materials used in the construction of the various components of the building. 153This is not a conclusion which rests on the wisdom of hindsight. As Mr Alden's evidence indicates, the very terms of the letters drew attention to problems that were potentially very serious and posed a threat to the safety of large numbers of people. Nor does the conclusion rest on the ex post facto realisation that the ceiling had been improperly installed . No one had any particular reason to suppose in May 2002 that the ceiling had been installed negligently. But an engineer armed with the correspondence would have had good reason to think that the ceiling, which had been in place for nine years, might well have deteriorated by reason of the uses to which the premises had been put and that the deterioration might constitute a significant safety hazard. 154I have not overlooked evidence indicating that an inspection of the ceiling would not have been an easy task and might have been quite expensive, depending on how long it took to ascertain the true state of the ceiling and the risk it posed. The correspondence identified potentially serious safety risks and the engineer, if he or she was to act reasonably, could not simply ignore them or interpret the correspondence in a manner that addressed only some of the risks so identified. Stonewall, if it wished to provide a safe environment for its patrons, would have had to meet the necessary expense.

CONCLUSION 155The primary Judge should have concluded that the risk of the ceiling collapsing was reasonably foreseeable in the light of the correspondence received by Stonewall. He should also have found that a structural engineer, if briefed with the correspondence and information that Stonewall should have provided, would have investigated the integrity of the ceiling to the first floor or caused such an investigation to take place by an appropriately qualified person. On that basis, Stonewall's breach of duty was a necessary condition of the occurrence of the harm: CL Act, s 5D(1)(a). It is appropriate that Stonewall's liability extend to the harm caused to the appellants: s 5D(1)(b). 156The appeals should be allowed. In each case, the judgment in favour of Stonewall should be set aside and judgment should be entered in favour of the appellant on the separate question of liability. Each matter should be remitted to the primary Judge for an assessment of damages. Stonewall should pay the costs of the appellant on each appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2011

Turjman v Stonewall Hotel Pty Ltd

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