Counihan v Adelaide Commercial Theatres Pty Ltd No. DCCIV-00-1362

COUNIHAN V ADELAIDE COMMERCIAL THEATRES PTY LTD (TRADING AS NOARLUNGA THEATRES)
[2004] SADC 2
Judge Bishop
Civil

Annette Lesley Counihan (“the plaintiff”) claims damages against Adelaide Commercial Theatres Pty Ltd trading as Noarlunga Theatres (“the defendant”) for personal injury and other loss and damage allegedly suffered in consequence of an incident which occurred at the Noarlunga Theatre (“the theatre”) in the circumstances alleged in paragraph 3 of the amended particulars of claim:
“On the 3^rd of October 1997 the plaintiff attended at [the theatre] with her children to view a movie. She paid an admission fee. During the course of the movie the plaintiff left her seat with her small daughter to accompany her daughter to the toilet. While doing so the plaintiff fell down a step between the level of a stage area in front of the screen and a level of the front row of seats.”
Expressed colloquially, the allegation is that she fell off the edge of the stage which was elevated about 35 centimetres above the floor level of the front row of seats. Both liability and damages are contested.
The pleadings
The plaintiff has alleged that her fall was caused by the negligence and/or breach of section 17C of the Wrongs Act 1936 (“the Act”) of or by the defendant in that the defendant:
“(a)failed to barricade, fence or take other appropriate steps to prevent patrons gaining access to the stage area during the showing of a film;
(b)caused permitted or allowed patrons to have access to the stage area during the showing of a film;
(c)failed to provide any or any adequate lighting to allow patrons to safely move around and exit [the theatre] during the showing of a film;
(d)failed to provide any or any adequate signage to indicate to patrons the appropriate and safe route to toilets during the showing of a film;
(e)failed to provide any or any adequate means of identification of changes in level of the floor surface of [the theatre] in areas visited by patrons who move around [the theatre] during the showing of a film.”
Further or in the alternative the plaintiff has alleged that by payment of the fee she attended the theatre pursuant to a contract with the defendant; that it was an implied term of the contract that the defendant would exercise reasonable care for her safety while she was in attendance at the theatre; and that the defendant breached the contract in the manner alleged in sub-paragraphs (a) to (e).
The defendant has admitted that at the relevant time it was the occupier of the theatre pursuant to a tenancy agreement with the Minister of Education, Children’s Services and Training, but has denied that it was negligent, acted in breach of section 17C or breached any implied term of contract. Specifically, the defendant has:
·    denied the allegations in sub-paragraph (a) and said that it was not practicable or possible to barricade or fence the stage area during the showing of a film;
·    admitted the allegations in sub-paragraph (b), but denied that this was negligent or in breach of section 17C;
·    denied the allegations in sub-paragraph (c) and said that it did provide adequate lighting and that it was not practicable to provide any lighting beyond that which was provided;
·    denied the allegations in sub-paragraph (d) and said that it did provide adequate signage and that all exit doors were clearly marked;
·    denied the allegations in sub-paragraph (e) and said that the change in floor level was evident to anyone taking reasonable care and that the edges of the steps [adjacent to the stage and near where the plaintiff fell] had white tape attached to them to indicate the change in level of the floor surface.
In the alternative, the defendant has alleged that, if the plaintiff is entitled to damages, those damages should be reduced having regard to her share in responsibility for those damages, pursuant to section 27A of the Act, because the plaintiff was negligent in that she:
·    chose to exit the theatre through the exit doors on the other side of the stage rather than through the clearly marked doors behind her;
·    failed to take due care, particularly given the limited lighting which was necessary for the showing of the film;
·    failed to keep any or any adequate lookout;
·    failed to take any or any adequate care for her own safety;
·    failed to observe an obvious danger and take measures to avoid it;
·    failed to look where she was placing her feet.
The theatre
The theatre, which was built in the early 1980’s, was designed as a multi-purpose facility. The brochure (exhibit D2) describes it as a “fully equipped and air-conditioned 492 seat proscenium arch theatre. Excellent acoustic qualities, the steep raked auditorium and modern equipment provide ideal conditions for all forms of presentation for plays, opera, ballet, musicals and concerts. It is also an excellent venue for conferences, seminars and public meetings.” During school holidays, the theatre is also used as a cinema for the projection of moving pictures.
At the two views which were conducted of the theatre during the evidence, it was observed that, upon entering the street-level foyer, situated to the left are the box office, stairs (“the left-hand stairs”) which ascend to the auditorium (here described as “the theatre”) and, around a curve and further to the left, toilets which are not sign-posted. To the right are situated the confectionery stand, stairs (“the right-hand stairs”) which also ascend to the theatre and, around a curve and further to the right, a disability toilet which also is not sign-posted. Further again to the right is a vestibule and doors (“the lower right-hand door”) through which disabled patrons can gain access to and egress from the theatre and other patrons can gain egress. The lower right-hand door is situated adjacent to the right-hand side of the stage, when facing the stage. For patrons who are not disabled, entrance to the theatre is gained by ascending either the left or right-hand stairs, unless one of those stairways has been cordoned-off with a rope at the foot of those stairs. Upon ascending the stairs, patrons enter the theatre, about five rows below the back row, through either the left or right-hand vestibule and doors (“the upper left and right-hand doors”). Patrons can also leave the theatre by those doors.
Visible from within the theatre, permanently illuminated green and white exit signs are positioned above the entrances to the vestibules to the lower right-hand and upper left and right-hand doors. Behind each of those signs and in the ceiling of each of those three vestibules, there is positioned a circular blue-coloured light with a light switch on the nearby wall (T 760). On the lower left-hand side of the theatre and adjacent to the left-hand side of the stage, there is another vestibule and door (“the lower left-hand door”). Above the entrance to that vestibule, there is positioned a permanently illuminated green and white exit sign. Unlike the three other vestibules of the theatre, there is no light positioned in the ceiling of that vestibule. Instead, attached to the right-hand wall of the vestibule, about 40 centimetres from the carpeted floor, there is positioned a rectangular – shaped and blue-coloured light (“the blue exit light”), which can be seen in the photograph, exhibit P3(1). As shall be later related, the existence of the blue exit light did not emerge until during the presentation of the case for the defendant.
The theatre has two aisles, which are situated to the left and right of the stage (“the left and right-hand aisles”). Attached to the side-wall adjacent to each aisle, there is a hand rail. Between each row of seats, there are two steps. At both ends of each row of seats, there is positioned a small white light which illuminates the row-letter and the steps between the rows. Upon descending the steps via the aisles at the ends of the rows of seats, there are carpeted areas adjacent to both ends of row A and the lower left and right-hand doors. Adjacent to those carpeted areas (and on the same level), there is a wooden stage, the surface of which is painted a very dark matt-grey (T 704). From the areas adjacent to both of the lower doors, one can move directly on to the stage. At each end of row AA, which is in front of row A, there is positioned a small white light which illuminates that row-letter but, at the left-hand end, does not illuminate the step (yet to be described) leading down to row AA.
The front of the stage forms a curve or arc, the centre of which protrudes into the theatre. Immediately in front of the stage (but not at the sides) there are the seats of row AA, which are in a recessed area, pit or well, between the stage and behind the seats of row AA. That recessed area is about eight metres in length, one metre wide and 35 centimetres deep and curves in an arc similar to that of the front of the stage. Access to the seats of row AA is gained by walking down a step positioned at each end of that row and on a level between the carpeted area adjacent to each lower door and the carpeted level upon which the seats of row AA are positioned. The position of that step (which is angled about 30 degrees towards the stage) is indicated by white fabric tape about 2.5 centimetres in width adhering to the carpet along the length of the edge of the step and the edges of the contiguous carpeted level adjacent to each lower door. (The step and tape are depicted in photographs 4 and 5 of exhibit P3, the consulting engineer’s report of Mr Peter Maddern.) The step is 85 centimetres in length and 27 centimetres wide (T 912).
The fall
Having considered all of the evidence presented, I am satisfied and find that the incident occurred in the following circumstances.
During the afternoon of 3 October 1997, the plaintiff took her two daughters, Megan (then 11 years old) and Kate (who became nine on the following day) to the theatre as a ‘birthday treat’ to see the film “Batman and Robin”. She had not previously been to the theatre. After purchasing their tickets at the box office and refreshments at the confectionery stand, together with a female friend and her two children, the six of them ascended the right-hand stairs and entered the theatre through the upper right-hand door. Many of the seats on that side of the theatre were occupied (T 140). With the children leading the way, they walked down a few steps, through a row of seats to the left-hand aisle, up a few steps of the left-hand aisle and sat in seats “towards the middle of that left-hand side” (T 61). When they entered the theatre, the over-head lights were illuminated but, by the time they sat down (about three-quarters of the way up the theatre around row E or F (T 69)), the theatre was dark (T 68; 141). Although the plaintiff saw the stage when she walked in, she “didn’t think too much about it” (T 144).
About half to three-quarters of the way through the film, Kate told the plaintiff that she needed to go to the toilet. Taking her daughter’s hand, she ushered her to the left and out of their row passed about six other patrons (T 151). She did not usher her to the right, because “there were too many people to step over” (T 151). Busy looking down, she did not observe the upper left-hand door, which was situated further up in the theatre, about 45 degrees to her left. (Had she known of that door, she would have used it (T 129)). Holding on to the hand rail of the left-hand aisle with her left hand “because it was so dark” (T 72) and holding Kate’s hand with her right hand, they descended the left-hand aisle and “headed towards the exit sign at the bottom of the stairs” (T 72-73), which did cast some light (T 159); that is, they walked towards the lower left-hand door.
In the plaintiff’s evidence (T 73-74):
“I got to the bottom of the stairs, to the exit door, and it occurred to me that this was similar to the Glenelg theatre where you go out those doors and it takes you outside the cinema. I was a bit wary about going through there and so I thought best I go out where I came in. At least I’ll know where I’m going. ..... I was near the door. In fact I think at one stage I touched the handle .... I started walking first to the right-hand side where we came in, and it wasn’t until a few steps that I realised I was on the stage. It was because I was being silhouetted by the light and I said to Kate, ‘Quick do a U-turn, I’m on the stage.’ She turned around and I turned with her. As we got to the end of the stage I went over.”
(My emphasis.)
(Her wariness about going out through the lower left-hand door was well warranted in that, at the second view, it was observed that, although there are toilets adjacent to a passage behind that door, re-entry to the theatre through that door was not possible.) She indicated that the “few steps” she had taken on to the stage were from about where there is positioned the single step leading down to row AA, which is immediately in front of the stage (T 75). Understandably, she (and counsel) referred to the “steps”, because two foot-steps are there required to descend to row AA from the common level of row A and the stage and, in the photographs which depict that area, white tape is to be seen adhering to two levels; that is to the common level of row A and the stage and to the edge of the single step down to the level of row AA. In her evidence (T 75):
“I had only gone a few steps from where those steps there are. That tape wasn’t there. ...... I would have seen it as plain as day, but that tape wasn’t there.”
(My emphasis.)
And, later (at T132):
“I didn’t see those steps, that tape was not there. It was dark and it was not there, there was [sic] no lights shining on there whatsoever.”
(My emphasis.)
She was not aware that she was going on to the stage. She was aware that the carpet ceased at some point and that there was then a wooden stage, but she did not realise that it was the stage until later (T 76), when she was being silhouetted (T 157-158).
When the plaintiff took those few steps across the stage, she was still holding on to Kate with her right hand and, therefore, was on Kate’s left-hand side, away from the edge of the stage. When they turned in a clockwise direction to go back and leave the stage, the plaintiff moved closer to the edge of the stage than Kate (T 175). Her foot went over the edge “just before the steps” (T 77). She fell backwards (T 78-79), with her body bent backwards from the knees (T 77). Her shoulder blades hit the edge of the stage and Kate landed on top of her (T 76-77). Upon getting to their feet, they walked along row AA (in which one man was sitting (T 130)) to the right-hand side of the theatre, ascended the right-hand aisle stairs to the upper right-hand door by which they had entered the theatre, descended the right-hand stairs and went to the toilet, following which the incident was reported at the manager’s office near the box-office. The manager took them to the lower right-hand door of the theatre, from where the plaintiff indicated where she had fallen. On his direction, she then returned to the foyer, ascended the left-hand stairs to the upper left-hand door, descended the left-hand aisle and took Kate to her seat near Megan. In pain and feeling humiliated, she then left the theatre by the same route and sat in her car until the film had finished.
In cross-examination of the plaintiff, this interchange took place (T 161):
"Q“I put it to you that there was sufficient light from the Exit lights on that [left] side, the northern side, at the lower level and also from the AA seat light to be able to see the stage.
ANo, not from the AA seat.
QWell, what about from the exit lights.
AThe exit light from where I was standing – the movie was very very dark, extremely dark, there was very little light coming from the exit signs and from where I was on the stage I did not know that I was on the stage until I had turned around and said to Kate, ‘hey, let’s get off the stage’ I did not know.”
(My emphasis.)
Had she seen “those steps” to row AA, she said that she would have used them and gone through that row, “but they were not visible. It was all black” (T 163):
“If the white tape had have been there I would have been able to see those steps .... It was visible today when we went down there when the lights were down you could see the tape.”
(My emphasis.)
For reasons later to be expressed, I am satisfied that white tape was positioned in the vicinity of the step to row AA when this incident occurred and that, in that regard the plaintiff was mistaken. I am also satisfied that that tape was not seen by the plaintiff before she fell; and that the tape was then visible and could be seen when the lights were “down”. In her recollection, also, adjacent to the wooden stage and towards the carpeted area in the vicinity of the lower left-hand door, there was an area covered by wood, not carpet. In that regard, also, I am satisfied that the plaintiff was mistaken and that carpet abutted the wooden stage in the vicinity of the lower left-hand vestibule and the lower left-hand door.
Kate, who is now 15 years old, confirmed what the plaintiff said in evidence. When they began walking on the stage, other patrons began yelling at them, because their shadows were on the screen (T 433). She also confirmed that her mother’s shoulder blades struck the edge of the stage when she fell; and that she (Kate) landed on top of her because they were holding hands (T 434). She was not aware of the step down to row AA and did not see any white tape. Her eyes were generally focussed on the screen and the film (T 601). Where they fell was, she said, “really dark” (T 435); the screen was dark (T 605).
Megan, who was then 11 years old and is now 17, confirmed that there were many patrons sitting on the right-hand side of the theatre when they went across to the left-hand side (T 613); that her mother and Kate went on to the stage; that they then fell and everyone laughed; and that she went down to see how they were (T 615.) She saw them silhouetted against the screen and then move “a bit” to the left-hand side, before she heard the noise of them falling (T 616). She had not been aware of the stage until her mother and Kate went on to it (T 661). She did not see the step, nor any white tape, “because it was dark” (T 668).
The expert evidence
In the consulting engineer’s report (exhibit P3) of Mr Peter Maddern, who was called for the plaintiff, under the heading “Discussion” he made these almost self-evident remarks, with which most would agree:
·    films such as the Batman movies are obviously designed to attract the patronage of children;
·    it is to be expected that young children may wish to go to the toilet during the course of a film;
·    young children need to be accompanied to the toilet; and
·    these patrons are entitled to a clear and unambiguous indication of the appropriate paths to the toilet during a movie and are entitled to a passage which, in the expected circumstances, is safe [but, I would add, not necessarily such an indication within the theatre itself. There was no evidence of any such indication elsewhere having been given within a theatre].
Upon more contentious issues, Mr Maddern expressed the opinions that:
·    entry to the stage should have been appropriately barricaded off, for example, by removable poles and/or ties such as are used at the foot of the left and right-hand stairs [and, one may add, to prevent access to the back three rows behind the upper left and right doors]; in his view, access to the stage was not sufficiently inhibited, in that it was foreseeable that patrons could easily have moved inappropriately on to the stage area during a movie and then be at risk of falling;
·    the potential for injury as a consequence of falling is enhanced from elevated positions and human ability to maintain stability is dependent on potential risks being identified; and
·    in our society it is generally accepted that visual clues are necessary to identify changes in level, for example, the provision of hand rails which also assist in maintaining stability.
In his reported conclusion:
·    there was inadequate signage to inform patrons of the appropriate path to take to toilets during the course of the film;
·    there were inadequate means of identification of changes in level that may result in a fall and subsequent injury; and
·    areas from which a fall was of some risk during the course of the movie were not screened off.

In giving oral evidence, Mr Maddern acknowledged that, when making his inspection of the theatre on 18 December 1998, he did not do so with the lights turned off and a film being shown (T 493). He also acknowledged that it was not part of his exercise to determine the extent to which “the exit lights” illuminated the area near the step leading down to row AA from the level of row A in front of the lower left-hand door, because he is not a lighting engineer (T 507). (No evidence was adduced from a lighting engineer.) However, he did think that identification of the change in level with the step down to row AA, “might be more clearly lit and therefore defined” as a pathway (T 503; 521). (That pathway is well depicted in the photograph exhibit P3(1) which was tendered during his evidence, with the plaintiff standing on the stage directly above the step which is indicated with white tape (as is the edge of the level of both row A and the stage directly above the step).) He acknowledged that a hand rail alongside the step to row AA would be a ‘trap’ unless illuminated ( T 509). He suggested that “little lights” on the edge of the stage and the step would help identify that path (T 503) and the edge of the stage (T 511). He also suggested that a “full height” hand rail close to the left-hand wall adjacent to the stage could be positioned, so long as it did not protrude too far across the stage (T 510). However, he acknowledged that, in a multi-purpose facility, that would not be practical (T 511).
In the opinion of Mr Maddern, which I accept, patrons who are seated on the left-hand side of the theatre and are desirous of leaving by the lower right-hand door for the purpose of returning to the street-level entrance and exit foyer, where the toilets and confectionery stand are also located, should be directed, guided or encouraged to take “the proper path” in front of row AA and discouraged from taking “the improper path” across the stage (T 514-515). At present, there is no such direction, guidance or encouragement given. (On the second view, it was determined that the distance between the front of seat 10 in row AA (which contains 20 seats) and the corresponding arc of the stage is 74 centimetres, while the distance between the front of the middle seat in row A (which contains 29 seats) and the back of the corresponding seat in row AA is only 35 centimetres (T 911). Clearly, therefore, the available path in front of row AA is more than twice the width of the path available between rows AA and A.)
The theatre technician
Mr Rodney Larcombe, who was called for the defendant, was employed by Apollo Lighting Services (“Apollo”), which was contracted to the defendant to supply services at the theatre. From about September 1995, when the defendant commenced occupancy of the theatre pursuant to the tenancy agreement (exhibit P2), Mr Larcombe worked at the theatre. He was paid directly by Apollo but indirectly by the defendant (T 812). His main duties were to set up and operate the lighting and sound equipment (T 695). In July 2002, he ceased being employed by Apollo and has since continued working at the theatre as an employee of TAFE, which took over the management of the theatre. Mr Larcombe has been employed as a maintenance technician for nearly 40 years and has worked in other theatres, including Scott Theatre and Union Hall Theatre which are associated with the University of Adelaide. In his evidence (T 698):
“I was responsible for all the technical aspects; the lighting, the sound, the mechanics of the place .... I was also the general fix-it-type person.”
He was also the projectionist when films were shown during school holidays. He described some of the other multi-purposes for which the theatre is used. At the time of this incident, the manager of the theatre was Mr Ron Denson.
Mr Larcombe explained that both rows AA and A can be removed, when necessary. Part of the stage can also be lowered to create an orchestral pit. Carpet has abutted the stage on the left-hand side since 1995. (In that regard, as previously indicated, I am satisfied that the plaintiff was mistaken.) The white tape at the ends of row AA has been there since 1995 and has been replaced by him, when necessary (“probably once a year” (T 721)), because it “gets very dirty, it lifts off and it doesn’t look nice” (T 702).
Mr Larcombe described the lighting in the theatre. The over-head lights are controlled from the projection box at the back of the theatre. When a film is shown, the over-head lights are turned off, leaving the small white lights at the ends of each row of seats and, he said, the four exit lights, two on each side of the theatre (T 706). When I enquired, he (incorrectly) said that there were no side lights mounted on the brick walls on either side of the theatre, “Only the exit lights” (T 706). The screen is about 12 metres wide and seven metres high, of which the Batman movie occupied about eight metres by 5 metres, with the bottom of the film being positioned at stage level (T 707-710).
Between about three and five months after this incident occurred, Mr Larcombe personally raised by about nine inches the positions of the small white lights at the ends of every row of seats (except row AA), because those lights were touching the steps and “throwing very little light on to the steps” (T 719). That change was not necessary with the small white lights at the ends of row AA, which were already positioned immediately under the outside arm-rests (as depicted in photograph 5 of exhibit P3). (On the second view, it was noted that the spread of light at the left-hand end of row AA was about 10 centimetres on to the carpet below (T 916); and that, standing in the centre of the stage and looking towards the left-hand step of row AA, no light was cast on to that step, unlike the light cast upon the step at the right-hand end of row AA (T 917).)
Mr Larcombe explained that, on occasions, persons do have to move from the body of the theatre on to the stage, for example, citizenship ceremonies, school graduations and live performances (T 720-721). Although he was working on the day of this incident, he did not see it happen. (Later that day, he inspected the area and found nothing to be remedied (T843)) He agreed that there was probably no reason why the white tape could not have been placed along the edge of the stage (T 844). The “usual procedure”, he said, was to place a red rope across the left-hand stairs “to discourage people from using that entrance” (T 728-729). (That rope can be seen in position in photograph 6 of exhibit P3). Compared with Scott and Union Hall Theatres, he agreed that the theatre is ‘quite unusual or different’ in that patrons can descend the stairs on either side of the theatre and find themselves on the same level as the stage (T 777).
In examination-in-chief, Mr Larcombe confirmed the presence of the circular blue-coloured lights in the ceilings of the two upper vestibules and the lower-right vestibule of the theatre; that is, behind the exit signs in those areas (T 727-728). He was then asked (T 728),
“And just to complete this, there is not one, is there, at the northern [left-hand] lower exit”
and (incorrectly) he answered “No”. During his cross-examination (at T 743), his (and the court’s) attention was first drawn to the presence of the rectangular-shaped and blue-coloured light which is attached to the right-hand wall of the lower left-hand vestibule, adjacent to the lower left-hand door; that is, the light which has here been described as “the blue exit light” (T 751) (although the word “exit” does not appear on that light). To that light, attention was not drawn at the first view and the plaintiff was not questioned about it, either in examination-in-chief or cross-examination, until later recalled. Mr Larcombe (who was present at that view and had turned-on the lights) could not remember that light then being turned ‘on’ (T 744), which was also my clear recollection (T 744) and no note to the contrary was taken at that view. Nor could he later recall whether he had turned-on the blue exit light when the plaintiff’s legal representatives inspected the theatre before the trial commenced (T 839). (That light does not appear to be turned-on in photograph 8 of exhibit P3, which was taken by Mr Maddern on 18 December 1998 and in which a blue light can be seen behind the stage.)
In cross-examination, Mr Larcombe “assumed” that the blue exit light was working correctly on 3 October 1997, because that light was ‘usually’ working (T 743-744). The switch for that light, he (incorrectly) said was in the control or projection room, before correcting himself by saying that the switch was in the corridor outside the lower left-hand door (T 744). During the showing of films, he said, the blue exit light “would have been on, usually would have been [turned] on.” by him (T 745). Occasionally, he conceded, he forgot to turn-on that light (T 763). In his evidence (T 745):
“It was my practice to make sure everything was on and operating before the audience came into the theatre.”
The purpose of that light, he said (and I accept) was to give some light in that area (T 745), where there “wouldn’t be very much light” (T 755). (As previously described, unlike with the three other vestibules of the theatre, the blue exit light is not positioned in the ceiling, but low on the right-hand wall of the vestibule. No explanation for that difference was given in evidence.) Mr Larcombe said that he could not “absolutely say” that the blue exit light was turned ‘on’ on 3 October 1997 (T 746). He conceded that turning that light ‘on’ “would have been a bit of a detour” for him (T 750) from one side of the theatre to the other (T 755).
Subsequent to Mr Larcombe’s evidence being completed, the second view of the theatre was conducted, primarily because the evidence relating to the blue exit light had not been elicited until after the first view. The blue exit light (which is slightly less than 25 centimetres long and 10 centimetres wide) is attached to the right-hand wall of the vestibule, near the lower left-hand door. The light is positioned about 40 centimetres from the floor and 70 centimetres from the corner of the wall which adjoins the wall next to the left-hand side of the stage. (The position of the blue exit light is clearly depicted in photograph 8 of exhibit P3). The distance from the centre of the blue exit light to the edge of the floor of row A, directly above the middle of the step down to row AA, is 3.14 metres (T 912). Sitting in row F (which was about where the plaintiff had been seated) it was noted (T 915-916) that, with the theatre lights turned-off and the blue exit light turned-on:
“blue light from [that] area casts some illumination in the area of the carpet immediately between the bottom of the [left-hand] aisle stairs and the commencement of the stage but it does not appear to illuminate any of the stage. Neither does it appear to illuminate any of the area beyond the commencement of row AA. All one is seeing is the light [brown] coloured carpet”.
(My emphasis).
With the blue exit light turned-off, it was noted (T 916) that:
“there is a notable difference in illumination of the carpet area at row A and adjacent to the [left-hand] steps to row AA right across the vestibule ..... The only illumination is coming from the lights at the end of row AA, plus what is coming down from the exit light.”
(My emphasis).
On site, at the completion of the second view, the plaintiff was recalled and said that, on the day of this incident, the blue exit light was not illuminated. In her words (T 921):
“It wasn’t on. I love blue lights, I would have noticed it being on.”
Admittedly, she was not conscious that day of there being any blue lights illuminated in the theatre (T 923) (which is, perhaps, not surprising because the three other blue lights are positioned in the ceilings of the three vestibules, behind the green and white exit signs).
Having considered all of the evidence presented, I am satisfied that it is more probable than not that, as the plaintiff deposed, when this incident occurred the blue exit light was not illuminated; and that there was notably, and correspondingly, less illumination of those areas adjacent to the lower left-hand door, the stage and the level of row A near the step down to row AA. Clearly, that blue exit light should have been illuminated in accordance with the purpose for which it was intended, namely, to assist persons in moving around that part of the theatre.
Other witnesses
Upon the question of liability, the defendant called two further witnesses. Mr Ronald Denson, who was managing the theatre when the incident occurred, and Mr Robert Robertson, who is a director of the defendant.
Mr Denson had no recollection of the incident. He said that he would have been selling the tickets that day (T 794). Patrons were directed to enter the theatre by the right-hand stairs. The left-hand stairs were roped-off (T 795). That rope was removed after the film began (T 807), not that patrons who had already entered would be aware of that removal (T 807). Tickets were collected by a person near the upper right-hand vestibule. No specific seats were allocated. Patrons chose where to sit.
Mr Denson found it difficult to believe that the plaintiff would have indicated to him, during the film, where she had fallen, “because it would have been pitch black dark in there” (T 799) and “it’s almost hidden. ...it’s down into that well sort of thing, so it would be very difficult to see it, unless you were virtually right there” (T 800). For patrons desirous of moving across the theatre, from one side to the other, he suggested that they could pass directly under the projection box, along any aisle or in front of row AA (T 801), although he thought that the third alternative would be restrictive in width (T 802). To his knowledge, patrons did not use the toilets situated adjacent to the passage-way which led from the lower left-hand door. That passage-way went into the dressing room area and patrons would have difficulty in that regard (T 808).
Mr Denson said that the white tape was placed near the steps to indicate to patrons the position of those steps, the white lights at the ends of row AA not casting sufficient illumination for that purpose (T 813), the steps themselves being positioned at an angle (T 814). He found it “highly improbable” that the tape was not there on 3 October 1997; it was there “all the time” (T 817). That position, he supposed, was “a trap” if there was not something there (T 817-818). There was no reason for which the tape could not be affixed to the edge of the stage (T 820). There was “no impediment, no ropes or anything” preventing persons from walking across the stage because, he said, “it had to be, again because of safety; people needed to move” (T 825). He could not see the need for ropes or barricade to encourage patrons to use the path in front of row AA (T 826).
Mr Robertson has been in the entertainment industry for more than 30 years (T 855). The white tape was being used when the defendant began leasing the premises. In his considerable experience, there is no venue which uses foot-lighting or any illumination at the front of the stage; that, he said, is “very old technology” and “very rare” (T 863). Recessed lights had the potential to be distracting, because of the ambient light (T 864). A permanently elevated border would be dangerous, distracting to the eye and would have to be illuminated (T 864). Clearly, Mr Robertson was quite concerned about the performing arts, with focus on the performer (T 864). He did not “really” agree that the needs for safety in the theatre may differ between live performances and the projection of films (T 865). Most buildings, he said, are now designed to be multi-purpose (T 865).
In cross-examination, Mr Robertson at first acknowledged that what Mr Pickhaver described as “a well”, immediately adjacent to the stage, was quite an unusual feature in a theatre (T871). However, inconsistently and, to my mind, unpersuasively, he went on to say that, “When the stage is lowered it is a well. When it is not it is not a well .... when that stage is dropped and that is unusual” (T 872). He then described the level on which the seats of row AA are positioned as being “just the floor level at that row” (T 873). He did not perceive it as “unusual” that the only level, apart from those behind row A, which was on a different level from row A and the stage was row AA (T 873-874). He did not seem to be aware that, as Mr Larcombe had explained (T 701), although most of the stage can be lowered, the section nearest to the audience remains in position and only the larger, rear section can be lowered (T 701).
In Mr Robertson’s opinion, “with the exit lights on and so forth, I believe that there is enough light in there to see where the edge of the stage is” (T 874) (my emphasis). To the suggestion that when films are shown, particularly dark films, the edge of the stage would not be delineated by any lighting, he answered (T 876):
“It’s a subjective question .... You have got coloured seats, you have got usually blue stage lights on, that allow a certain amount of illumination. You have exit lights on, which give a certain amount of illumination ... your eyes become accustomed to the lack of light. So I have never, at any stage, had a difficulty in picking the steps or the leading edge of a stage”.
(My emphasis.)
In that response, by his reference to “blue stage lights” I take it that he could only have been referring to the blue exit light which, upon the finding that has been made, was not illuminated at the relevant time.
To the suggestion, in cross-examination, that the problem with the theatre is that patrons can come down the aisles and move on to the stage without a change in level, Mr Robertson somewhat cynically replied that, “You don’t expect people to walk on to the stage unless they are invited to.” (T 884), a response which ignored the possibility that patrons were not aware that they had moved on to the stage. To the suggestion that it would be quite feasible to put a barrier or ropes, of a similar nature to those at the bottom of the stairs, to discourage patrons from going on to the stage and encourage them to use “the actual exits”, he replied (T 888), “you don’t want to put anything that is too permanent because you’re going to have to take it away again in a multi-purpose venue.” He envisaged patrons walking between the rows if wishing to pass to the other side (T 889) or, if standing at the bottom of the aisle at row A, walking between the back of row AA and the front of row A (T 890).
Mr Robertson was aware of the presence of the blue exit light (T 890-891). In his understanding, the purpose of that light was to “throw a bit of extra ambient light” for the patrons coming into or going out of that vestibule (T 892). He had not previously noticed that the blue exit light was the only blue light which was not located in a ceiling (T 893). He could not recall ever having seen a sign such as “Keep off the stage” (T 893).
The plaintiff’s letters
A letter which the plaintiff wrote to the manager of the defendant on 12 February 1998 was tendered in evidence (exhibit D7(1)). In that letter, she said that, thinking the exit for which she was heading would lead her outside of the building:
“I looked across and saw another exit sign and proceeded to walk across to this sign. However, as I stepped out into an area close to the corner of the stage, believing it was an aisle, I fell down a drop of approximately one metre.
As a result of this I fell into the edge of the stage and sustained an injury ... The poor lighting certainly attributed to the cause of this accident. .... these injuries were sustained on your premises due to poor lighting and lack of barricades to prevent access to this area”.
(My emphasis.)
For the defendant, Mr Bell observed that the letter did not refer to the plaintiff having made a U-turn on the stage; and that, in her evidence, there was no reference to her having believed that she was stepping into an aisle when she fell. I have taken those observations into consideration in deciding that the incident did occur in the manner to which the plaintiff deposed in evidence. I do not consider that it is appropriate here to weigh critically every word of the plaintiff, either in that letter or the unsigned letter of 13 October 1997 (exhibit D3) which was found in the notes of her general medical practitioner, Dr Pakos.
Legal considerations

In her pleadings, the plaintiff has alleged, in the alternative, that her fall was caused by the negligence of the defendant, the defendant’s breach of section 17C of the Act or breach of contract by the defendant. Proof of each of those allegations is subject to separate legal considerations.
In relation to the allegation of negligence, in the circumstances of this case, the fact that the plaintiff was a lawful entrant upon premises occupied by the defendant established a relationship between them which, of itself, sufficed to give rise to a duty on the part of the defendant to take reasonable care to avoid a foreseeable risk of injury to the plaintiff and the question to be determined is whether the defendant was in breach of that duty (see Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, at 488, per Mason, Wilson, Deane and Dawson JJ.).
In relation to the alleged breach of section 17C of the Act, that section provides, where relevant:
17C.(1)    Subject to this Part, the liability of the occupier of premises for injury, damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence.
(2)In determining the standard of care to be exercised by the occupier of premises, a court shall take into account –
(a)the nature and extent of the premises; and
(b)the nature and extent of the danger arising from the state or condition of the premises; and
(c)the circumstances in which the person alleged to have suffered injury, damage or loss, or the property of that person, became exposed to that danger; and
(d)the age of the person alleged to have suffered injury, damage or loss, and the ability of that person to appreciate the danger; and
(e)the extent (if at all) to which the occupier was aware, or ought to have been aware, of –
(i)     the danger; and
(ii)    the entry of persons onto the premises; and
(f)the measures (if any) taken to eliminate, reduce or warn against the danger; and
(g)the extent (if at all) to which it would be reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger; and
(h)any other matter that the court thinks relevant.
(3)The fact that an occupier has not taken any measures to eliminate, reduce or warn against a danger arising from the state or condition of premises does not necessarily show that the occupier has failed to exercise a reasonable standard of care.”
(My emphasis).
Section 17C(1) clearly indicates that, subject to this Part, the liability of an occupier of premises for injury attributable to the “dangerous state or condition” of the premises shall be determined in accordance with “the principles of the law of negligence.” Those principles are expressed in the case law upon that subject, including Safeway Stores’ case (supra) and the earlier seminal case of The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40. Premises are in a dangerous state or condition if, in the ordinary course of human affairs, danger may be reasonably anticipated from them without protection (see Clarke J A In Agar v Dairy Farmers Co-operative Ltd (1989) 15 NSWLR 651 at 656-657; approved on appeal in (1990) 170 CLR 293, at 297).
In relation to the alleged breach of contract, “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 anyone can make them” (per McCardie J. in Maclenan v Segar [1917] 2KB 325, at 332-333 (with my emphasis); adopted in Watson v George (1953) 89 CLR 409, at 424 and Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33, at 38, 40, 43-44). The reference to “anyone”, in this context, is a reference to a person operating a cinema (see Calin’s case (supra), at 40, 43-44). As Brennan J observed in Calin’s case (supra), at 44,
“the duty of care which the common law imposes on an occupier of premises towards a person entering the premises under contract is no more than a duty to exercise reasonable care and skill. And, before a liability in tort arises, there must be a breach of that duty of care by someone ... The occupier’s duty, to whomsoever it falls to discharge it, is to use reasonable care and skill to make the premises safe for the purpose contemplated by the occupier and the person entering them under contract.”
(My emphasis).
In a case such as this, where the plaintiff had entered under contract and alleges that her damage was caused by some failure of the defendant on its servants to maintain the premises in a safe condition, as Brennan J said in Calin’s case (supra), at 44, the observation of Fullagar J in Watson v George (supra), at 425, is in point:
“the whole question will resolve itself practically into a question whether the defendant or a servant of the defendant has been guilty of negligence in connection with the source of danger and damage.”
(My emphasis).
In these circumstances, “The reasonable care expected of the [defendant] was the reasonable care expected of the operator and occupier of a cinema” (Mason C J, Deane, Toohey and McHugh JJ in Calin’s Case (supra), at 40-41).
Liability
In every tort of negligence there is a duty of care owed by the defendant to the plaintiff, a breach of that duty by the defendant and consequential damage suffered by the plaintiff. The first two of those legal requirements were addressed by Mason J (as he then was) in The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40. In relation to the duty of care, his Honour said (and Stephen and Wilson JJ agreed) at 44:
“According to Lord Atkin’s statement of principle in Donoghue v Stevenson [1932] AC 562, at 580, as it has been refined in later decisions, prima facie a duty of care arises on the part of a defendant to a plaintiff when there exists between them a sufficient relationship of proximity, such that a reasonable man in the defendant’s position would foresee that carelessness on his part may be likely to cause damage to the plaintiff”.
(My emphasis.)
After observing (at page 47) that the concept of foreseeability in connection with the existence of the duty of care involves “a more generalized enquiry”, his Honour continued, in relation to foreseeability in the context of a breach of that duty:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
(My emphasis.)
In application of these well established legal principles to this case, I am satisfied and find, on the balance of probabilities, that, by virtue of the plaintiff being a lawful entrant into the theatre of which the defendant was the occupier, there did exist between them a sufficient relationship of proximity such that a reasonable occupier in the defendant’s position would have foreseen that carelessness on its part might be likely to cause damage to the plaintiff. I am also satisfied and find that the risk of injury to a person in the plaintiff’s position from walking on to the stage, which was at the same level as the lower left-hand vestibule area, and falling from it during the showing of a film was neither far-fetched nor fanciful but real and foreseeable and, therefore, gave rise to a duty of care on the part of the defendant to the plaintiff. I consider that the scope of that duty extended to keeping the theatre in a condition such that naturally occurring hazards or dangers of a kind not ordinarily to be expected were not encountered and to taking reasonable measures to eliminate or warn against such hazards or dangers. In my judgment, the danger of a person in the plaintiff’s position falling from the stage into the recessed area of row AA, which is positioned below the common level of the adjoining stage and lower left-hand vestibule area, was reasonably to be anticipated and required the taking of reasonable measures to eliminate or warn against that danger.
Upon the more contentious question that then arises – whether a breach of the defendant’s duty of care has here been established – it is necessary to balance all of the relevant considerations, including the magnitude of the risk, the degree of the probability of its occurrence and the degree of injury likely to result, along with the nature and extent of the remedial response that should be ascribed to a reasonable occupier in the defendant’s position. In my judgment, that remedial response should have included the placing of an appropriately worded sign on the lower left-hand vestibule wall, above the blue exit light, telling persons to keep off the stage; the illumination of such a sign with the blue exit light; the placing of a removable rope barrier along the edge of the stage from the adjoining left-hand wall and towards the step down to row AA; and the placing of white tape along the horizontal edge of the stage in front of row AA.
In balancing all of the relevant considerations to which reference has been made, I am satisfied that, when the plaintiff fell from the stage, the defendant was in breach of its duty to take reasonable care to avoid a foreseeable risk of injury to the plaintiff in that the defendant:
·    failed to barricade and place in position an appropriate sign to prevent or warn the plaintiff against gaining access to the stage during the showing of the film;
·    caused, permitted or allowed the plaintiff to have unrestricted access to the stage during the showing of the film;
·    failed to provide any illumination from the blue exit light (which was not turned-on) to allow the plaintiff safely to move around and exit the theatre during the showing of the film; and
·    failed to provide any adequate means of identification of changes in level of the floor surface of the theatre in areas accessed by the plaintiff as she moved around the theatre during the showing of the film.
Upon the defendant’s failure to have provided a warning notice, I have had regard to the relevant considerations referred to in Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934, by Kirby J at 1946, in deciding that the duty of care owed to the plaintiff extended to the provision of a warning. Those considerations included:
“(1)whether the occupier had an economic or other interest in the entry of the plaintiff: Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, at 500;
(2)whether, because of previous incidents, public discussion or otherwise the occupier could be expected to know of any particular risks against which warnings should be given;
(3)whether there was any hidden feature of the place or activity that might not be plain to an ordinary entrant but which should be known to, or reasonably discoverable by the occupier, calling for a warning;
(4)whether, if the risk eventuated, the consequences would be likely to be minor or significant for the person affected;
(5)whether the imposition of a requirement to give a notice could be confined to a particular place or places or would have large implications, costs and other consequences; and
(6)whether the nature of the activity in question was such as to render the presence of a sign irrelevant to the actual prevention of injury.”
In my judgment, an appropriate barrier or warning sign would have prevented the occurrence of this incident and the plaintiff’s injuries. There is no reason to think that she would have disregarded such a barrier or warning. Indeed, hypothetically, she said that in evidence (T 131-132).
For these reasons, also, I am satisfied that the liability of the defendant to the plaintiff pursuant to section 17C of the Act has been established. In determining the requisite standard of care, I have taken into account everything referred to in section 17C(2) and, in particular that, in my view, the defendant ought to have been aware of the danger from which this incident resulted.
I am not satisfied that the defendant has discharged the onus of establishing that the plaintiff was contributorily negligent and that her damages should be reduced having regard to her share in responsibility for those damages, either at common law or pursuant to the now repealed section 27A of the Act. In my judgment, the defendant is solely responsible for this incident.
Finally, in relation to the alleged breach of contract by the defendant, I am satisfied, for the reasons expressed, that the defendant did breach the implied warranty that the theatre was as safe for the mutually contemplated purpose as reasonable care and skill on the part of a person operating a theatre could make it; and that the defendant is also contractually liable to the plaintiff in damages.
Damages
The plaintiff is now 46 years old. When this incident occurred she was 40 years old. She left school in Year 10 and did “counter work basically” (T 45). When about 18 years old, she became “very transient”, working with Westrail for some time and doing “factory work” to be able to keep travelling. When about 22 years old, she met her future husband. For about three years, she worked casually for his parents in hotels as a “ticket lady” and kept their books up to date (T 46). She married in 1983, when about 26 years old. With her husband, she went opal mining at Coober Pedy for about four months and there contracted “opal fever”. They then worked as tree-fellers at Wirrabara, in a governmentally promoted scheme.
After Megan was born in 1986, the plaintiff did not continue working. Kate was born in 1988. In 1987, she and her husband separated and, in 1991, were divorced. Since Megan was 5 years old, she has lived with her father, although she spends a lot of time with her mother. Kate has continued to live with the plaintiff. After Kate’s birth, she attended and passed three TAFE courses relating to computers, so that she could become qualified for work. Between 1991 and October 1997, she obtained work, “just part time for a few weeks just to relieve” (T 51) at the Grand Prix and for a cleaning company. She also attended several courses at Christies Beach High School, including car-maintenance, electronics and Year 12 computing. In 1997, she attended a silver jewellery course at Onkaparinga TAFE. (Documentary evidence of the many courses the plaintiff has attended was tendered, including her successful completion, in 2002, of Bite courses relating to computer skills for older persons wanting to rejoin the workforce.)
Before her fall, the plaintiff was seeking employment. She had purchased machinery for use in manufacturing jewellery. She had hoped to go to Andamooka and open a shop with her (then) male companion. (That relationship broke-up after the fall.) She had received from CES a Jobstart subsidy document for presentation to any prospective employer, which was valid until 28 November 1997 (exhibit P7). She was looking in the newspapers for work and attending job centres. Specifically, she was trying to obtain ‘clerical work, shop-assistant work, merchandising, bar work, anything to do with cashier work’ (T 58), which were areas in which she had experience. She had been unsuccessful. Since her fall, she has been in receipt of a disability pension.
Upon returning home after this incident, the plaintiff went to bed upset and in pain. Next morning she telephoned the surgery of her general medical practitioner, Dr Pakos, but there were no appointment vacancies. She went to another surgery, where a Dr Retna referred her to Flinders Medical Centre with “Aching all over the body” (see exhibit D5). In evidence, the plaintiff described her pain as then being, “in my neck, the middle of my back and my lower back/waist area” (T 87). The Flinders Progress Notes (in exhibit D5) confirm that she was then seen in relation to “neck/shoulder/hip pain” and was emotionally upset. The provisional diagnosis was ‘soft tissue injury neck/back’. She was prescribed Panadeine Forte and Diazepam and sent home. For more than a few days, she was bedridden. After about a week and a half, she went to Dr Pakos, having delayed until then because she had been given medication at Flinders and thought that she was going to be alright. Still she was sore ‘from neck to bottom’.
On 17 March 1998, Dr Pakos reported (in exhibit P8) to the plaintiff’s then solicitor that:
·    she had fallen down a deep depression in the floor;
·    she had consulted him on 14 October 1997;
·    she was diagnosed as having suffered a musculo-skeletal injury to her chest wall, musculo-ligamentous injuries to her upper back and neck and soft tissue damage to her right elbow and hand and she was in an acute anxiety state;
·    she was prescribed Diazepam and Prothiaden, a major tranquilliser, together with physiotherapy;
·    she had suffered significant psychological trauma and may require the help of a psychologist and had developed chronic insomnia problems;
·    she remained partially disabled, physically, in performing her day to day tasks; and
·    most injuries have now resolved apart from her upper back which he expected to resolve over the following six months.
On 12 October 1998, in a “follow up report” 12 months after the fall, Dr Pakos reported (in exhibit P8) that:
·    he had [previously] neglected to mention the persistent pain in the plaintiff’s lower back [of which pain he had first noted on 4 February 1998 that she had complained (T 565)], for which she had been seeing Mr Tomlinson, an orthopaedic surgeon;
·    her back was very stiff;
·    X-ray of her lumbar spine revealed narrowing of the L5/S1 disc space with minor osteophyte formation;
·    bone scan arranged by Mr Tomlinson had revealed no abnormality;
·    MRI had been arranged;
·    her then current symptoms included lower back pain radiating up the entire spine, which can become severe at times without warning, bilateral leg pain and lower back spasms, all of which were exacerbated with physical activities of gardening, vacuuming and hanging-out the washing;
·    her medication had been changed;
·    physiotherapy had been abandoned in favour of a self-help directed exercise program;
·    she would benefit from a referral to a specialised Pain Unit and psychological counselling; and
·    she was suffering from a musculo-ligamentous injury.
On 2 November 1998, in an “update” report, Dr Pakos reported (in exhibit P8) that:
·    her neck and lower back pain was the best it had been since the fall and there was only minimal tenderness over her lumbar spine, with good range of spinal movement;
·    the MRI [of 12 October 1998] had revealed minor disc bulges at C4/5, C5/6 and a broad-based annular disc bulge at L5/S1, with no cord compression [that report gave the interpretation “minor degenerate change”]; and
·    her injuries had stabilised, “however she would be prone to further exacerbation in the future if exposed to unsuitable positions involving lifting or repetitive bending. Thus back care exercises should be maintained indefinitely”. (My emphasis).

On 30 September 1999, about two years after her fall, Dr Pakos referred the plaintiff to Dr Thompkins, a psychiatrist, because he (Dr Pakos) noted and said in evidence (T 560),
“she is still emotionally labile, tremulous and agitated, arguing with her daughter constantly, suffers from early morning wakening, loss of appetite, loss of weight and it was becoming obvious that she was developing a quite complex anxiety disorder I guess best described as a post traumatic stress disorder.”
(My emphasis.)
She has since continued to consult with Dr Thompkins. She has not seen Dr Pakos for the past year.
In his four psychiatric reports and one statement which were tendered (exhibit P9), Dr Thompkins expressed the opinions and statements that:
·    the plaintiff suffered from a “full-blown Major Depressive Disorder, having many features readily assimilated under the rubric of a PTSD” (16 November 1999);
·    her claim for compensation had been formulated in the absence of formal psychiatric opinion and he suggested to her that she may wish to seek further or alternative legal advice because (as he understood the position) her claim had been formulated disregarding her “loss of chance” of future self-employment (16 November 1999);
·    while he was not an orthopaedic surgeon, he disagreed with medical assessment of the MRI of 12 October 1998 (28 March 2000);
·    whatever the extent or nature of her pre-fall spinal degeneration, it did not impede her engaging in a very full and extraordinarily diverse lifestyle (28 March 2000);
·    the plaintiff suffered from a sever PTSD virtually without interruption since the subject fall (28 March 2000);
·    subject to competent orthopaedic evaluation, the plaintiff also suffered from a variety of physical injuries affecting her spine (28 March 2000);
·    the PTSD (and any established physical injury) were, on the balance of probabilities, solely precipitated by the fall (28 March 2000);
·    it was highly unlikely that the plaintiff will ever be entirely pain free and that her level of mobility and independence will ever fully return to their premorbid state (28 March 2000);
·    because her severe psychiatric injury persisted without adequate treatment for about two and a half years, she will be prone to relapses for the rest of her life with adverse effects upon her work prospects (28 March 2000);
·    a recent chest X-ray report was inconsistent with the MRI of 12 October 1998 (3 April 2000);
·    the plaintiff should be assessed by an orthopaedic surgeon (12 April 2000);
·    the plaintiff continues to suffer from a “full blown major depressive disorder with various features ..... under the description of Post Traumatic Stress Disorder” (1 December 2003); and
·    he has seen the plaintiff on approximately 55 occasions since 26 October 1999 (12 in 2001, 6 in 2002 and 4 in 2003) (1 December 2003).
As apparent from his reports, Dr Thompkins is qualified in law. He was also not reluctant to express opinions upon orthopaedic matters, “because they would be of relevance to the psychiatric diagnosis” (T 390). He conceded, in cross-examination, that the two orthopaedic specialists in this case (Mr Osti and Mr Middleton) did not share his orthopaedic views (T 410). In his evidence, “a post-traumatic stress disorder is wider than a major depressive disorder” (which both he and Dr Lukacs had diagnosed in the plaintiff) and it was “unhelpful” to make an additional diagnosis of “a pain disorder” (as made by Dr Lukacs) (T 418). He disagreed with Dr Lukacs that the plaintiff’s level of impairment was 15 percentum (T 419). In his opinion, she has “a very major psychiatric impairment” (T 420). He disagreed with Dr Lukacs that the plaintiff had pre-existing limited psychosocial resources or stamina, rather she was resilient (T 451 – 452). He thought it “a fair statement” of Dr Lukacs that she was not prevented from working for psychiatric reasons, providing that her medication continued to be effective (T 459).
Dr Lukacs, a psychiatrist who was called for the defendant, assessed the plaintiff in February 2002, when he diagnosed and reported upon (in exhibit P11) “comprehensive aspects of a pain disorder associated with both psychological factors and a general medical condition (back/neck) ... [which] in combination with her pain disorder [she] may have suffered from a Major Depressive Disorder which at the time of this assessment was adequately controlled with the use of Zoloft anti-depressant medication”. In his opinion, her fall had resulted in “relatively chronic mild [psychiatric] impairment (15%).” She was not suffering from a severe disability and was able to attend to the basic aspects of her life demands “with an expectation of pursuing part-time employment.”
Upon reviewing the plaintiff in June 2003, Dr Lukacs reported (in exhibit P11) his diagnosis of “a [chronic] pain disorder associated with both psychological factors (essentially controlled Major Depressive Disorder) and a general medical condition (musculo-skeletal disturbance affecting mainly her back).” He considered that she had been “a vulnerable person with pre-existing limited psychosocial resources/stamina”, who has not recovered from the dislocation in her psychosocial functioning. He estimated the cost of any proposed future treatment to be about $1,000 per year, inclusive of medication, which could possibly extend for between two and three years. In his statement of 27 November 2003, he did not think that she was psychiatrically prevented from working, subject to the continued effectiveness of her medication.
In evidence, Dr Lukacs did not consider it unusual for a person with a chronic pain problem not to be referred to a psychiatrist for a year or two, unless there was a very strong psychiatric component (T 627). He thought that the plaintiff will probably need anti-depressant medication for two or three years (T 633). He did not consider that her condition constituted a post-traumatic stress disorder (T 645). Pain disorder, he said, is a psychiatric diagnosis (T 646). In his view (T 646),
“the pain disorder would be my primary diagnosis and the psychological/psychiatric aspect of that pain disorder involved a major depressive disorder”.
Mr Orso Osti, an orthopaedic surgeon, examined the plaintiff in June 2000. In his reported assessment (in exhibit P10), her presentation was in keeping with “chronic pain in the presence of underlying psycho-social overlay and in the absence of any evidence of neurological involvement in the cervical, thoracic and/or lumbar spine.” He believed that she did require ongoing psychiatric counselling and would benefit from regular exercise. He considered that her condition was stable and quantified her impairment at 5% of cervical spine function, 10% of thoracic spine function and 10% of lumbar spine function, linked to moderate facet joint dysfunction and related disabilities. He believed that she would be considered fit to work in a clerical/administrative capacity and/or performing light physical tasks, although it would be appropriate for her not to engage in activities requiring prolonged forward-bending, repetitive overhead work, prolonged driving and/or lifting more than 10 kilograms.
In evidence for the plaintiff, Mr Osti said that her fall could have made symptomatic a previously asymptomatic degenerative condition in her facet joints and that is the most likely anatomical source of her pain (T 205). He thought that her prognosis was favourable and that she was unlikely to require more aggressive management (T 208). Provided she were allowed to change position, she should be able to cope with administrative or receptive work (T 209). He would not expect her to require significant home help and would expect her to be able to cope with the normal activities of daily living (T 210), especially if she had some support from members of her family (T 211). He agreed with Mr Middleton that there was no objective evidence of any significant spinal damage resulting from the fall (T 211). He thought that her symptoms would have settled to a minor level within one or two years (T 212).
Mr Osti did perceive an organic origin attributable to the plaintiff’s chronic pain, hence his expression “in the presence of” and not “as a result of” (T 214). Pain, he said, does have an anatomical source (T 215). He thought that the plaintiff’s pain derived from irritation or dysfunction (T 216) of the [facet] joint (T215) and not from psychosocial overlay (T 217). To that extent, he differed slightly from Mr Middleton (T 215). To say that her physical impairment was due to her mental illness was ‘a scientific aberration’ (T 218). He would expect that the effects of her disability will markedly improve when this litigation is completed (T 236), even though her impairment will remain (T 237).
Mr Johnathon Middleton, an orthopaedic surgeon, examined and reported on the plaintiff in March 2002 for the defendant (exhibit D4). There was no obvious evidence of any exaggeration of her subjective complaints. Her spinal problems continued to interfere with her normal life-style. He did not find objective evidence of any significant damage occurring at any level of her spine in the fall. He thought that non-organic factors played a very major role in her ongoing difficulties and that any residual underlying organic symptomology or residual physical impairment would seem to be quite small. In evidence, Mr Middleton regarded Mr Osti’s suggestion of moderate facet-joint dysfunction as “a fairly non-descript diagnosis” (T 590). (There are two facet joints at every mobile level of the spine, one on each side (T 592).) He preferred Mr Osti’s diagnosis that the plaintiff’s presentation was in keeping with chronic pain in the presence of underlying psycho-social overlay.
Returning to the plaintiff’s evidence, still she has good and bad days (T 92). She has problems sleeping (T 109). Her cervical, thoracic and lumbar spine can still trouble her (T 92). Previously she had not experienced back trouble, except on specific occasions such as lifting-up a pot plant and with her period pains. She ceased physiotherapeutic treatment because she could not afford it. Still she has difficulty in bending down and picking-up objects. For 12 months after the fall, she had to rely, substantially, on the assistance of her daughters for housework, cooking, cleaning and helping her to dress. Friends also gave her considerable assistance. She has now learned to adjust to those tasks (T 282). Because she was unable to operate the clutch of her car, her husband swapped with his automatic car. Support bars were fitted to her toilet, shower, bed and bath. Still she obtains assistance, if available, in taking washing from the washing machine and hanging it on the clothes line. She no longer fossicks for gem stones. She has paid $22 a month for a gardener (T 280). During the last couple of years she has unsuccessfully applied for several jobs. Her name is listed at several job centres. About three years ago, she obtained office and other work-experience from Mr Paul Stevens with whom she was then in a relationship. That work she found physically very difficult.
Evidence corroborative of the plaintiff’s physical condition, her disabilities and the assistance which she has required since her fall was given by Megan, Kate, Mr Stevens, Mrs Green and Mrs Marriott. To Megan, her mother’s personality changed from being ‘bouncy bubbly and full of life’ to being depressed and sad (T 619). She continues to assist her mother in many tasks around the house. Kate, who has lived with her mother for most of the time, has provided her with constant support. Mr Stevens confirmed the girls’ evidence of their mother’s disabilities and their assistance. Her moods fluctuated and their intimate life together was affected. For about nine months in 2000, he gave her work-experience, primarily of a clerical nature, in his automotive parts business. She was intelligent, capable and had a good demeanour. However, with her injuries, she was not able to work beyond about three or four hours each day. For that reason, he did not employ her. As he said, “it’s very hard to employ people with disabilities” (T 345). She was always looking in the newspaper for work (T 360).
Upon the evidence presented, I am satisfied that the following position has been established. The plaintiff was a pleasant, frank and honest witness who appeared, on occasions, somewhat emotionally fragile. There was no suggestion of insincerity or exaggeration in her presentation. In her fall from the stage, she suffered musculo-ligamentous injuries to her cervical, thoracic and (I am satisfied) lumbar spine. She also suffered soft tissue damage to her right elbow and hand and was in an acute anxiety state. Those physical injuries significantly resolved in the next 12 months and there was only minimal tenderness over her lumbar spine when Dr Pakos reported on 2 November 1998. However, pain in those areas persisted because, as Mr Osti said, her fall could have made symptomatic a previously asymptomatic degenerative condition in her facet joints.
In June 2000, when the plaintiff was seen by Mr Osti, she suffered chronic pain in the presence of underlying psychosocial overlay. Her physical condition had stabilised and her impairment was quantified at 5% of cervical spine function, 10% of thoracic spine function and 10% of lumbar spine function. She was then physically fit for work in a clerical/administrative capacity and/or performing light physical tasks. From around that time, she endeavoured, unsuccessfully, to find work, particularly clerical, as qualification for which she had previously completed numerous courses of study. Although she was unsuccessful in then obtaining employment, having regard to the physical problems from which she suffered when engaging in work-experience with Mr Stevens during 2000 I do not consider that she would then have been able successfully to return to the work force, because of the psychiatric component of her fall-related injuries.
In consequence of her fall, the plaintiff also developed a psychiatric illness described (by Dr Thompkins) as a major depressive disorder with many features readily assimilated under the rubric of a post-traumatic stress disorder and (by Dr Lukacs) as, “a [chronic] pain disorder associated with both psychological factors (essentially controlled Major Depressive Disorder) and a general medical condition (musculo-skeletal disturbance affecting mainly her back).” That illness (by whatever name) has responded to medication and is now controlled. Upon the differing psychiatric opinions here expressed, I prefer and accept those of Dr Lukacs that the plaintiff’s level of psychiatric impairment is about 15%; that it is not a major impairment; and that in two or three years further medication will not be required. I am also satisfied that her psychiatric illness does not prevent her from working, as she is now endeavouring to do.
In assessment of the plaintiff’s damages, special damages were agreed in the amount of $9,734.65.
With regard to the plaintiff’s non-economic loss, in my judgment her pain and suffering, both physical and (particularly) psychiatric, have been significant. The amenities and her enjoyment of life have also been considerably compromised. That loss should now diminish. I assess her non-economic loss at $40,000, attributing $30,000 to the past (inclusive of interest) and $10,000 to the future.
With regard to the assessment of past economic loss, as Mullighan J observed for the Court of Appeal in Boothey v Morris & Morris (2002) 219 LSJS 379, at 390-391, the correct approach is to determine what net income after taxation the plaintiff would have earned had she not been injured and then determine what, if any, contingencies, favourable and unfavourable to her, should be considered. Necessarily a broad axe approach must here be adopted. At the time of her fall, the plaintiff was not working and had not worked for about 11 years, since Megan was born in 1986 (except for minimal casual work). At the time of her fall, she had made considerable efforts in obtaining qualifications for her return to work, probably part-time initially, because Kate was then only about nine years old. Were it not for the accident, I consider it probable that she would have obtained part (about half) -time clerical employment around the time that school resumed in February 1998; and that about three years later, when Kate went to secondary school in 2002, she would have obtained full-time employment. From the information provided (in exhibits P17 and P18), during those six years the average net weekly wage of a clerk (level 1) was about $400 and higher for a clerk (level 2). In my calculation, during those years, the plaintiff would have earned about $84,000 net. Allowing for contingencies and interest, her past economic loss is assessed at $86,500.
With regard to the plaintiff’s future economic loss, what ultimately has to be assessed is her loss of earning capacity, to the extent that such loss is or may be productive of financial loss, in all of the jobs and careers which otherwise would have been open to her. Upon the medical evidence, I am persuaded that, in consequence of her fall, she has been rendered less capable of earning income and the diminution of that capacity may be productive of financial loss (see Medlin v The State Government Insurance Commission (1995) 182 CLR 1, at 17, per McHugh J). She has been deprived of the opportunity, or has lost the chance, to earn unimpaired by her fall-related injuries as a physically fit person throughout the remainder of her working life (see Wade v Allsopp (1976) 10 ALR 353, at 358, per Stephens J). Again, necessarily a broad axe approach must be adopted and the award should be moderate. Under this head of damages, allowance should also be made for the psychiatric treatment and medication which the plaintiff is likely to require during the next few years (in that regard I prefer and accept the evidence of Dr Lukacs) and for gardening-related costs. Taking everything before me into account, allowing for contingencies (both favourable and unfavourable) and discounting 3% for the effects of inflation (Todorovic v Waller (1981) 150 CLR 402), the present value of the plaintiff’s future economic loss is assessed at $30,000.
For the gratuitous services which were rendered to the plaintiff by her daughters and friends during her convalescence, she is entitled to recover the value of services which were required to satisfy her need for care or services resulting from the defendant’s default (see Van Gervan v Fenton (1992) 175 CLR 327). Upon the evidence, I am satisfied that the plaintiff needed both physical and emotional support during the intensive phase of her convalescence and that those needs were met by her daughters and friends. Their physical support assisted her with day to day tasks such as cooking, showering, dressing and work in the laundry. Their emotional support assisted her in over-coming the embarrassment of her fall and in coming to terms with her pain, discomfort and disabilities. For these gratuitous services of a more demanding nature than normally to be expected of friends and family members, I consider that, upon the material presented, the amount of $3,000 should be allowed, inclusive of interest.
In summary, the plaintiff’s damages are assessed as follows:

Special damages (as agreed)

$9,734.65

Non-economic loss

       past (inclusive of interest)

        future

$30,000.00

$10,000.00

Economic loss

        past (inclusive of interest)

        future (inclusive of medical treatment)

$86,500.00

$30,000.00

        Gratuitous services (inclusive of interest) $3,000.00
_________

$169,234.65
========

For these reasons, judgment will be entered for the plaintiff against the defendant in the amount of $169,234.65. Upon the question of costs, counsel shall be heard.

Special damages (as agreed)	$9,734.65
Non-economic loss past (inclusive of interest) future	$30,000.00 $10,000.00
Economic loss past (inclusive of interest) future (inclusive of medical treatment)	$86,500.00 $30,000.00
Gratuitous services (inclusive of interest)	$3,000.00 _________
$169,234.65 ========

[2004] SADC 2

21 January 2004