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Calin v Greater Union Organisation Pty Ltd

Calin v Greater Union Organisation Pty Ltd

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Case Copied 20 June 1991 24 min read

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HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Toohey and McHugh JJ.

CALIN v. THE GREATER UNION ORGANISATION PTY. LIMITED

(1991) 173 CLR 33

20 June 1991

Negligence—Practice and Procedure

Negligence—Dangerous premises—Liability of occupier to person entering pursuant to contract—Injury to patron in darkened cinema—Duty of care. Practice and Procedure—Jury verdict—New trial—When ordered—Party failing to seek direction at trial—Relevance to application for new trial.

Decisions

MASON C.J., DEANE, TOOHEY and McHUGH JJ. The appellant (plaintiff) by her tutor sued the respondent (defendant) in the Supreme Court of New South Wales for damages in respect of injuries which she claimed to have sustained when she attended the Rapallo Cinema in George Street, Sydney, on 22 June 1983, at about 5.20 p.m. The appellant, accompanied by her husband, Constantin, and her son, Romeo, attended the cinema with the intention of seeing the film "Flying High II". The session at which the film was to be shown was advertised to commence at 5.00 p.m., the main feature to commence at 5.40 p.m. During the screening of the shorts which preceded the feature, the appellant, her husband and son entered the darkened cinema auditorium. The appellant's son had purchased three tickets from the box office in the foyer immediately before they entered the auditorium.

2. There was no usher or usherette in attendance as they entered. Romeo and Constantin preceded the appellant. They went down the aisle. The aisle had no steps. They heard a cry from the appellant and found her in a position on the floor of the aisle. She was in pain. The appellant claims that she had slipped on a banana skin and that there was a failure to take care on the part of the respondent in not having removed it.

3. In her statement of claim the appellant claimed that she was a contractual entrant on the respondent's premises and that it was an implied term of the contract that the premises were as safe for the purpose of her watching the film as reasonable care and skill could provide. The appellant asserted that, in breach of the agreement, the respondent by its servants and agents failed, amongst other things, to keep the aisle clean and free from food and refuse, to regularly clean the aisle, to provide adequate lighting in the aisle and to insist that an employee direct patrons to their seats by torchlight when the cinema was in darkness. In the alternative, the appellant asserted that she was an invitee on the respondent's premises and that the food and refuse in the aisle constituted an unusual danger of which the respondent knew or ought to have known. Again, in the alternative, the appellant asserted that the respondent was in breach of a common law duty of care. All these allegations were traversed by the respondent in its defence.

4. The action was heard by Finlay J. and a jury. It was common ground that the respondent was the occupier and operator of the cinema at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1991] HCA 23
Decision Date: 20 June 1991

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Supreme Court of New South Wales in a dispute between Calin and Greater Union Organisation Pty Ltd. The case concerned the plaintiff's claim for damages for personal injury sustained when she slipped and fell on a wet floor in a cinema foyer. The plaintiff alleged negligence on the part of the cinema operator.

The central legal issue before the High Court was whether the defendant had breached its duty of care to the plaintiff. Specifically, the court had to determine if the defendant had taken reasonable precautions to prevent patrons from slipping on wet floors in its cinema foyer, and if the plaintiff's injury was a foreseeable consequence of any failure to do so.

The High Court, in dismissing the appeal, affirmed the principles of negligence. It was held that a duty of care is owed by occupiers to lawful visitors to take reasonable steps to prevent foreseeable harm. The court found that the evidence did not establish that the defendant had failed to take reasonable precautions. The presence of a wet floor, in the absence of evidence of its duration or the defendant's knowledge of it, was not sufficient to establish negligence. The court emphasised that the onus was on the plaintiff to prove that the defendant had breached its duty of care by failing to take reasonable steps to avoid a foreseeable risk of injury.

The appeal was dismissed.

Orders