Stonewall Hotel Pty Ltd leased three-storey premises which it ran as a restaurant and nightclub. In November 2002, the first floor ceiling collapsed injuring a number of patrons. This was because the screws used to secure the ceiling to the floor above were inadequate and ultimately failed.
Six months earlier, a patron of the hotel had sent an email to Stonewall and the local council expressing concerns about the structural integrity of the second floor of the hotel. Harper had observed the floor moving under the load of approximately 200 people dancing and jumping on the third level. He thought it may collapse.
The council required Stonewall to obtain a certificate from a structural engineer confirming that the premises were structurally sound and capable of withstanding the load of its patrons. Stonewall therefore engaged an engineer named John Byatt, but failed to advise Byatt of the email or the council's letter. Byatt was also unaware that the second floor was used primarily for dancing.
Byatt reported that the first and second floors were adequate for their purpose but did not comment on the ceilings suspended beneath those floors. Based on this report, the council authorised Stonewall to continue operating as a place of public entertainment.
The ceiling subsequently collapsed, injuring several patrons who commenced proceedings against Stonewall for negligently failing to rectify the ceiling. A claim was also made against Byatt on the basis that he negligently failed to identify the defect in the ceiling. In his defence, Byatt stated that he would have engaged a vibration expert if he had known the floor was subject to dynamic loadings (ie dancing).
The claims against both Stonewall and Byatt failed at first instance. The Court found that Stonewall was negligent in its failure to provide Byatt with all relevant information, but this did not cause the injuries sustained as a result of the collapse. This was based on a finding that a vibration expert was unlikely to have identified any defect in the floor and would not have investigated the ceilings. Further, there was no negligence by Byatt because his retainer was limited to examining the floors (not the ceiling affixed below).
A majority of the Court of Appeal upheld this finding on appeal.
Turjman v Stonewall Hotel [2011] NSWCA 392
It is well established that occupiers of premises owe a duty of care to their patrons. But where a latent defect is responsible for an injury suffered by a patron, it may be difficult to prove that the occupier is liable. Reasonable investigations will not always identify the defect.
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