Seven-year-old Eadie Doosey-Shaw didn’t want to move house. But the sun was out the day she arrived at her new Bulli home. It was eight days until Christmas 2011, and the extroverted Eadie had two friends visiting. The girls shared afternoon tea on the balcony and slung their towels, wet with pool water, over the handrail. They were laughing together when Eadie’s mother Cate left them to tend to the garden.
When Cate Doosey next saw her daughter, the child was unconscious and “crumpled” on the concrete below, with a broken baluster showing where she had fallen backwards from more than 2.5 metres overhead, fracturing her skull. She regained consciousness long enough to say a few words - “I don’t feel good”.
Paramedics drove Eadie to Sandon Point, where a crowd had gathered to watch a rescue helicopter land. As the chopper went to take off, Ms Doosey saw Eadie’s eyes roll back, and heard the doctor on board call for the helicopter to stop. Crouching over the child, the medico seemed to think better of it. “Go … just go,” he told the pilot. His hands shook so much he could barely click himself into his harness, Ms Doosey would later recall.
The circumstances of Eadie’s injury were the subject of an eight-day hearing in the NSW District Court late last year. Earlier this month a judge found the negligence of an Austinmer building inspector, Nigel Walsh, of Complete Building Inspection Services Pty Ltd, caused Eadie’s fall and subsequent harm.
Ms Doosey visited the property on June 23, 2011 and resolved to buy it, unless a pre-purchase building inspection gave her reason not to. She hired Walsh, who had inspected the same property for the vendors two months earlier, to carry out the work. Walsh’s June 27, 2011 report listed verandas/balconies among the areas he had inspected, but made no mention of any work required on the baluster that would give way under Eadie’s 31kg body, six months later. On the contrary, the report noted the balcony frame and posts “appear secure, structurally adequate and in a fair/good condition”.
The court heard police responding to the accident tested the balusters on either side of the broken one, and found they were easily pushed out at the bottom, with two of the closest three “loose to mere touch”. The posts were held in by rusty screws and a timber lip – once 5mm high – that had reduced to 1.43mm with time, natural shrinkage and movement, according to an engineer.
The court found Walsh a frank and truthful witness, but he had no recollection of either inspection. He told the court his practice when checking a balustrade was to hold and attempt to shake the rails and to apply some force to some balusters at the top, bottom and middle.
Judge Robert Montgomery considered the evidence of a consultant architect, Dr John Cooke, who said the balcony slats were “at the point of failure” at the time of Walsh’s inspection and that this would have been obvious to a competent inspector.
“I find it most likely that had [Walsh] applied even small force on the baluster, within his usual practice of visual inspection, he would have observed that the baluster would not retain outward force such that it was a hazard demanding identification as a major defect in his report,” Judge Robert Montgomery said.
Solicitors for Walsh and his company attempted to use a clause in their inspection report to avoid liability. They also filed a successful cross-claim against their insurer, Pacific International Insurance Pty Ltd, which refused to pay a claim arising from the accident.
Ms Doosey – herself a barrister – filed separate claims for Eadie and herself. She initially thought Eadie had died in the fall, she said. “I honestly thought it was such a fall onto concrete that it was too much for her – too much of a fall – that she must have been smashed up inside,” she said, in a report tendered to the court. “Waiting for the ambulance seemed like it went on forever … I’ve never had a worse time in my life.”
Ms Doosey was awarded damages of $155,644.55 plus ongoing medical costs. A decision on damages in her daughter’s case was deferred to another date.
Before the accident, Eadie had been doing very well at school and winning awards, but afterwards her English results, in particular, suffered. Though she gradually recovered, the accident had diminished her “vibrancy, confidence, adventurousness and humour”.