Hakoah Club Ltd v Robert James Green

[2002] NSWCA 242

CITATION:	Hakoah Club Ltd v Robert James Green [2002] NSWCA 242
FILE NUMBER(S):	CA 40518/01
HEARING DATE(S):	22 July 2002
JUDGMENT DATE:	22 July 2002
PARTIES :	Hakoah Club Limited (Appellant) Robert John Green (Respondent)
JUDGMENT OF:	Hodgson JA at 1; Foster AJA at 14; Brownie AJA at 2

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 5648/99
LOWER COURT JUDICIAL OFFICER :	Sorby DCJ

COUNSEL:	R J Colquhoun (Appellant) I D Cullen (Respondent)
SOLICITORS:	Moray & Agnew (Appellant) Robert Johns & Company (Respondent)
CATCHWORDS:	Negligence - foreseeability - no question of principle
CASES CITED:	Wyong Shire Council v Shirt (1980) 146 CLR 40
DECISION:	Appeal allowed with costs. Judgment of District Court set aside. Substitute Judgment for defendant with costs

40518/01
DC5648/99

HODGSON JA
FOSTER AJA
BROWNIE AJA

22 July 2002

HAKOAH CLUB LIMITED v ROBERT JAMES GREEN

Judgment

1 HODGSON JA: I will ask Brownie AJA to deliver the first judgment.

2 BROWNIE AJA: The appellant was the occupier of a building in which there was a hall. The appellant hired the hall out to Mr De Oliveira for him to conduct a Brazilian Carnival. That involved the provision of a band, singers and facilities for dancing. Within the hall there was a stage. The floor of the stage was about three feet eight inches or 1.1 metres above the floor level of the hall. Upon the stage there was a grand piano which apparently was kept there almost all the time, if not all the time. The grand piano was not needed on the occasion of the Brazilian Carnival.

3 Mr De Oliveira hired a band and he also hired the respondent to act as sound mixer for the band. There was a problem about the quality of the sound system provided. The respondent asserted but apparently only assumed that the appellant had provided it. In any event it was replaced by another sound system, which the respondent himself went and collected. It was apparently hired for the evening at the expense of Mr De Oliveira.

4 The respondent himself apparently single handedly arranged for or superintended setting up the stage including the sound system, a monitor and some microphones, including making arrangements for the positioning of the various members of the band.

5 The evening activities commenced at about eight o’clock and the band played a bracket of numbers. Whilst that was happening the respondent said he noticed things were not as they should be. At the end of the first bracket of numbers he made some adjustments to the sound system. The second bracket of numbers then commenced which involved two singers. The respondent described them as girls. He said he didn’t think they were acting very professionally. He said he noticed he could not hear their voices properly over the band and that they had their fingers in their ears, also indicating to the respondent the singers could not hear their voices properly.

6 Pursuant to a custom described by the respondent, he thought he should not go between the audience and the band. He, therefore, went around from his position at the sound mixer, behind the stage and behind a curtain at the rear of the stage and climbed up a flight of stairs on to the stage. He was concealed from the audience by a curtain placed across part of the stage. Looking at it from the position of somebody on the stage looking towards the audience, that was on the right hand side of the stage where the grand piano was positioned.

7 The respondent wanted to attract the attention of the singers to encourage them to move closer up to their respective microphones. In order to do that he had to reach a position near the front of the stage on its right hand side. His pathway was blocked by the piano and boxes and other materials stored under the piano. In order to reach a position near the front of the stage he was therefore required, he said, to climb up on to and slide or perhaps slither across the top of the piano. He attracted the attention of one at least of the singers and they moved forwards. The respondent then, he said, moved backwards across the top of the piano, sliding, and then tried to put his feet down on to the stage floor. He missed the edge of the stage and fell to the floor of the hall.

8 He sued the appellant for damages for negligence. The trial and the appeal have been conducted on the basis that the duty of care owed by the appellant to the respondent was that described by Mason J (as he then was) in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 to 48. It does not seem to me that the risk of injury to someone in the position of the respondent was foreseeable in the sense described by his Honour. It seems to me to be a far-fetched, fanciful or fantastic risk. Other epithets are also no doubt available. The sole act or omission constituting negligence found against the appellant was positioning the piano close to the edge of the stage, or, as his Honour put it, failing to position the piano more carefully on the stage. The piano was in fact close to the edge of the stage. Prior to the respondent mounting the top of the piano, it and the material stored under it formed an effective barrier to someone falling off the stage on the right hand side.

9 Someone in the position of the appellant foreseeing the risk that somebody might climb on to the top of the piano and somehow fall off the side of it down to the floor of the hall would have had to have foreseen a number of intermediate steps. However, assuming that the risk had been foreseen the next inquiry is whether a reasonable response to that would have been positioning the piano further in from the edge of the stage. I do not think so, but in any event it does not seem to me that this would have prevented the accident.

10 If all that was wrong, it seems to me there are still deficiencies in the judgment which would require the allowing of the appeal and an order for a new trial. There was a contest as to whether it was the appellant or Mr De Oliveira who provided the defective sound equipment. His Honour made no findings on the subject. There was a dispute whether the respondent was sliding or slithering across the top of the piano or whether he was standing there. There were no findings as to that.

11 If the respondent did succeed on the question of liability it is therefore impossible at this stage to say what would have been an appropriate apportionment of responsibility.

12 In any event I would allow the appeal with costs on the primary basis the risk of injury was far fetched, and required no action on the part of the appellant. I would set aside the judgment and the order made in the District Court and substitute a judgment for the defendant and an order that the plaintiff pay the defendant’s costs.

13 HODGSON JA: I agree. For the reasons given by Brownie AJA I think the primary judge was in error in finding that the risk was not so remote as to be far-fetched and fanciful and for that reason I too would allow the appeal.

14 FOSTER AJA: I agree there was no basis shown for a finding of negligence. I agree with the orders proposed.

15 HODGSON JA: The orders of the court are:

1. Appeal allowed with costs.
2. Judgment of the District Court set aside and in lieu therefore verdict and judgment for the defendant with costs.
3. The respondent is to have a certificate under the Suitors Fund Act if otherwise entitled.

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