2.Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 8 February 2002 and, in lieu thereof, order that the appeal to that Court be dismissed.
On appeal from the Supreme Court of New South Wales
Representation:
D F Jackson QC with A J McInerney for the appellant (instructed by Herbert Geer & Rundle)
B W Walker SC with P A Regattieri for the respondent (instructed by R J Rimes)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Hoyts Pty Ltd v Burns
Negligence – Causation – Failure to warn customers that cinema seats retracted automatically – Respondent injured attempting to sit on a retracted seat – Whether Court of Appeal erred in interfering in primary judge's finding that warning sign would not have altered respondent's conduct.
Appeal – Rehearing before Court of Appeal – Relevance of credibility findings – Whether primary judge's conclusion based upon assessment of credibility of party – Whether Court of Appeal erred in disturbing such conclusion – Whether Court of Appeal omitted to find error before substituting its own conclusion on the evidence.
McHUGH, GUMMOW, HAYNE AND CALLINAN JJ. This appeal raises no difficult question of principle. It requires this Court to decide whether an intermediate Court of Appeal was justified in reversing orthodox and carefully considered findings of fact and credibility by a trial judge.
The facts
The appellant owns and exhibits films at the Hoyts Cinema Complex at Bankstown in Sydney. The respondent, who was working as a teacher's aide specializing in disabled children, attended the appellant's cinema complex on 17 March 1997. She was then aged about 47. She was accompanied by five adults and eight disabled young children. Her particular responsibility was Joshua, a boy of four years of age who could crawl very quickly but still required a wheelchair.
The respondent did not go to the cinema regularly. She had never been to the Bankstown complex before. Indeed, by 17 March 1997 she had not been inside a picture theatre for many years.
Neither outside or inside the theatre nor on the screen at any time was there exhibited a sign referring in any way to the seats in the theatre.
The group of which the respondent was a member went down an aisle of the particular theatre where the film that they wished to see was being shown. They seated themselves in the front row. The lights of the theatre were on when the respondent entered.
Because each seat automatically rose to rest at an angle of 70 degrees to the floor when there was no weight upon it, the respondent's seat must have been in an upright…
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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AGLC
Hoyts Pty Ltd v Burns [2003] HCA 61
Case
[2003] HCA 61
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Court of Appeal of the Supreme Court of New South Wales concerning a claim in negligence. The appellant, Hoyts Pty Ltd, operated a cinema where the respondent, Ms. Burns, was injured when she attempted to sit on a retracted seat while retrieving a child. Ms. Burns alleged that Hoyts was negligent in failing to warn patrons about the automatic retraction of cinema seats and that this failure caused her injuries.
The central legal issues before the High Court were whether the Court of Appeal had erred in interfering with the primary judge's findings of fact, particularly regarding the credibility of the respondent and the likely impact of a warning sign on her conduct. The High Court was required to determine if the Court of Appeal had sufficient grounds to disturb the trial judge's conclusion that a warning would not have altered the respondent's behaviour, and whether the Court of Appeal had properly substituted its own conclusion on the evidence without first establishing error in the primary judge's assessment.
The High Court reasoned that the Court of Appeal had improperly substituted its own findings of fact for those of the trial judge, who had the advantage of assessing the respondent's credibility firsthand. The primary judge had concluded that, given the circumstances and the respondent's state of mind at the time of the incident, a warning sign would not have prevented her injury. The Court of Appeal, however, inferred that a warning would have been effective, despite the primary judge's adverse findings on credibility. The High Court emphasised that intermediate appellate courts should be cautious in disturbing a trial judge's findings of fact, especially when those findings are based on an assessment of credibility, unless there is a clear error.
The High Court allowed the appeal, setting aside the orders of the Court of Appeal and reinstating the judgment of the primary judge. Consequently, the respondent's appeal to the Court of Appeal was dismissed.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 8 February 2002 and, in lieu thereof, order that the appeal to that Court be dismissed.
Background
Background to the litigation
Mc This appeal raises no difficult question of principle. It requires this Court to decide whether an intermediate Court of Appeal was justified in reversing orthodox and carefully considered findings of fact and credibility by a trial judge.The facts The appellant owns and exhibits films at the Hoyts Cinema Complex at Bankstown in Sydney. The respondent, who was working as a teacher's aide specializing in disabled children, attended the appellant's cinema complex on 17 March 1997. She was then aged about 47. She was accompanied by five adults and eight disabled young children. Her particular responsibility was Joshua, a boy of four years of age who could crawl very quickly but still required a wheelchair. The respondent did not go to the cinema regularly. She had never been to the Bankstown complex before. Indeed, by 17 March 1997 she had not been inside a picture theatre for many years. Neither outside or inside the theatre nor on the screen at any time was there exhibited a sign referring in any way to the seats in the theatre. The group of which the respondent was a member went down an aisle of the particular theatre where the film that they wished to see was being shown. They seated themselves in the front row. The lights of the theatre were on when the respondent entered. Because each seat automatically rose to rest at an angle of 70 degrees to the floor when there was no weight upon it, the respondent's seat must have been in an upright position immediately before she sat down on it. In order to sit upon it she must have exerted force of some kind upon it, either by pushing it or sitting down on it, to bring it to a position generally parallel to the floor. When the respondent seated herself, Joshua was in his wheelchair just to the right in front of her. After a time the lights darkened and the film started. Some light was emitted from the screen. Joshua became very agitated. He began to scream. The respondent thought that if he were taken out of his wheelchair he might calm down. As soon as the respondent placed him on the floor he quickly crawled away from her. She left her seat to retrieve him. He was screaming and kicking and apparently continued to do so as she attempted to resume her seat which had of course by then become upright again. This is how the respondent accounted for what followed:"Well, I had hold of him with my right arm, felt for what I thought was the seat, I sat down, I moved my arm like this and held him and when I sat down there wasn't any seat there but by the time I realised I had gone past the point of no return I couldn't stand up. ... I hit the metal bar and fell forward. ... The very bottom of my spine, the tailbone." The respondent suffered injuries as a result of the events which have just been described. The trial The respondent brought proceedings in the New South Wales District Court against the appellant for damages for negligence. The particulars that she alleged, and which involve what in this Court remain live issues, were that the appellant was negligent in failing to warn the respondent of the dangers from seats folding up when no weight was upon them and in failing to warn the respondent that, when looking after disabled children, her seat would rise should she need to leave the seat for any reason.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
HUGH, GUMMOW, HAYNE AND CALLINAN JJ
KIRBY J
(dissent)
On the basis of this conclusion about the negative impact which any warning sign would have had upon the respondent's consciousness or conduct in the circumstances, the primary judge dismissed the claim based on the alleged lack of warning. It followed that the respondent's action failed. Judgment was entered for the appellant.The decision of the Court of Appeal Against that judgment, the respondent appealed to the Court of Appeal. In her grounds of appeal, she challenged the findings and conclusions of the primary judge. Specifically, she persisted with her claim based on the alleged design defect of the cinema seat as well as the alleged failure to give a warning of the retractable feature of the seat. The Court of Appeal, whilst noting the way in which, at trial, the case had been presented in terms of the alleged defect of the seat design[28] confined itself to the issue of the lack of warning of the retractable features of the seat[29]. It did so on the basis that other grounds of appeal (including those relating to the suggested defects of design) were not pressed in argument[30].[28][2002] Aust Torts Rep ¶81-637 at 68,344-68,345 [12].[29][2002] Aust Torts Rep ¶81-637 at 68,344 [13]. [30][2002] Aust Torts Rep ¶81-637 at 68,346 [17]. The Court of Appeal defined the scope of the duty of care in terms of the general principles of negligence. In this respect it did not appear to notice the point made by this Court, following an earlier claim also based on a cinema injury, in Calin v Greater Union Organisation Pty Ltd[31]. That case affirms the continuing operation, in circumstances of contractual entrants, of the principles stated in Watson v George[32]. Nothing appears to turn on this different formulation of the scope of the duty of care accepted by the Court of Appeal. In this Court, the respondent did not suggest to the contrary. No notice of contention was filed raising this point, asserting a larger duty of care or seeking to revive the case at trial based upon the design defects of the cinema seat with its protruding pedestal. [31](1991) 173 CLR 33 at 38; cf at 44.[32](1953) 89 CLR 409 at 424. The Court of Appeal's treatment of the suggested error of the primary judge was confined to two paragraphs of its reasons[33]. In the first, it postulated a simple and inexpensive warning in the cinema foyer bearing the words "Take care. Seats retract automatically. Ensure your seat is down before you sit". In the second, the Court of Appeal noted the primary judge's rejection of the respondent's additional evidence, when she was recalled. However, it went on to state that there was "an overwhelming inference" that a person so warned "would have included that added piece of knowledge in the thinking processes in play when returning to the seat and would have taken care to ensure that the seat was down before she sat"[34]. It was on this basis that the Court of Appeal proceeded to reach its own conclusion "on the material placed before the District Court"[35]. On that footing, judgment was entered for the respondent. A new trial was ordered to assess the damages. [33][2002] Aust Torts Rep ¶81-637 at 68,347 [22]-[23] per Sheller JA, Heydon JA and Ipp AJA agreeing.[34][2002] Aust Torts Rep ¶81-637 at 68,347 [23].[35][2002] Aust Torts Rep ¶81-637 at 68,347 [25].
Ratio Decidendi
Legal Principle Established
Established by:
HUGH, GUMMOW, HAYNE AND CALLINAN JJ,