Limelight Cinemas Pty Ltd v Beatty
[2018] ACTSC 18
•14 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Limelight Cinemas Pty Ltd v Beatty |
Citation: | [2018] ACTSC 18 |
Hearing Date: | 5 October 2017 |
DecisionDate: | 14 February 2018 |
Before: | McWilliam AsJ |
Decision: | 1. The appeal is upheld. 2. The orders of the Magistrates Court made on 10 April and 4 May 2017 are set aside and in lieu thereof, the following orders are made: (i) Judgment is entered for the defendant. (ii) The plaintiff is to pay the defendant’s costs. 3. The respondent is to pay the appellant’s costs of the appeal. |
Catchwords: | APPEAL – TORTS – Negligence – breach of duty – causation – respondent injured falling down stairs in a cinema theatre – whether error in finding breach of duty by occupier – whether error in finding that any breach of duty of care caused injury – appeal upheld with costs. |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 42, 43, 45, 46, 102, 168 Magistrates Court Act 1930 (ACT) s 274, pt 4.5 Court Procedures Rules 2006 (ACT) r 5052 |
Cases Cited: | Brozinic v Iss Facility Services Australia Limited and the Federal Capital Press of Australia Pty Limited trading as The Canberra Times [2014] ACTSC 8 Brozinic v The Federal Capital Press Pty Limited trading as The Canberra Times [2015] ACTCA 8 Wilkinson v Law Courts Ltd [2001] NSWCA 196 |
Texts Cited: | Australian Building Codes Board, Building Code of Australia Section H: Special Using Buildings, H1: Theatres, Stages and Public Halls Standards Australia, AS 2293.1 – 2005: Emergency escape lighting and exit signs for buildings, Part 1: System design, installation and operation |
Parties: | Limelight Cinemas Pty Ltd (Appellant) Angela Beatty (Respondent) |
Representation: | Counsel L King SC with D Shillington (Appellant) S Littlemore QC with S Whybrow (Respondent) |
| Solicitors McCabes Lawyers (Appellant) Aulich Civil Law (Respondent) | |
File Number: | SCA 28 of 2017 |
Decision under Appeal: | Court: Magistrates Court of the Australian Capital Territory Before: Magistrate Boss Date of Decision: 10 April 2017 Case Title: Angela Beatty v Limelight Cinemas Pty Ltd Court File Number: CS 1215 of 2013 |
Introduction
This is an appeal from orders of the ACT Magistrates Court made on 10 April 2017, and costs orders made on 4 May 2017. It concerns whether an occupier of a cinema at the Tuggeranong Hyperdome is liable in negligence for injuries suffered by the respondent in March 2012, when she fell down the stairs of a darkened movie theatre, while taking her two children to see a film.
The appellant, Limelight Cinemas Pty Ltd (Limelight Cinemas), was the defendant in the court below and the occupier/manager of the cinema complex at Tuggeranong Hyperdome. The respondent, Ms Angela Beatty, was the plaintiff in the proceedings below and was successful in obtaining orders for the payment of $90,000 in damages (following a finding of contributory negligence of 10%), plus costs assessed on a solicitor/client basis.
Those orders are the subject of this appeal. The grounds of appeal are set out in more detail below, however the Magistrate’s findings in the court below as to breach of duty, causation and contributory negligence are all challenged. For the reasons that follow, I have found that the court below erred in respect of the findings on breach of duty and causation and as a consequence the finding on contributory negligence falls away.
Facts giving rise to the proceedings below
On 23 March 2012, shortly after 7.00pm, Ms Beatty attended a cinema at the Tuggeranong Hyperdome with her two daughters. She purchased tickets for herself and her two daughters, and entered cinema two whilst movie trailers and advertising were playing, prior to the feature film commencing.
The theatre was perceived by Ms Beatty to be almost full (although the evidence of ticket sales for the relevant session indicated that the particular theatre was approximately half full).
There were three light levels or settings for the house lights in the theatre. The first level was where the lights were brightest, with no dimming effect. The second level was where the house lights had been dimmed, which occurred when the advertisements and movie trailers were showing. The third level was where the lighting on the wall lights was completely extinguished.
At the time Ms Beatty and her daughters entered the theatre, the house lights had been dimmed to what was described variously as a half-state or as ‘level two’, being almost dark.
Ms Beatty could not find three seats together, and decided to sit apart from her two daughters. She walked with them to the far side of the cinema and up a flight of stairs to the upper level of seating.
The flight of stairs was designed in such a fashion that each stair had an equal rise (or height) and the width of the aisle (between the curtain covering the wall and the seats) was consistent. However, the goings were not equal (being the horizontal plane of each step). For each new row of seats, there was a shorter intermediate step. The result was that those in the theatre alternated between taking a longer step followed by a shorter step as they navigated the stairs. The photographic evidence and that of the expert witnesses was that across each step nosing were two aluminium reflective strips separated by a non-slip surface in a contrasting colour from the carpet.
Ms Beatty took her daughters up the stairs to row N. After seating them, Ms Beatty turned to move down the same stairs she had just climbed with a view to taking a separate seat two rows below in row L.
At that point, she fell. Ms Beatty’s evidence was that her back was against the curtain and once her children had moved past her, she turned to travel down, but in fact she stepped into ‘nothing’. She instinctively reached out for a hand rail to her right, but there was none. She felt her right shoulder contact with the curtained wall and found herself upside down on the landing below, with her legs at an angle up towards the back of the cinema and her head towards the screen.
She suffered significant injuries to her left foot and left wrist, the precise nature and extent of which it is unnecessary to traverse here, because the parties agreed that if the appellant was found liable, then the quantum of damages payable (not taking account of any finding on contributory negligence) was $100,000.
None of the above facts are the subject of any challenge on appeal.
Findings of the Magistrate
Proceedings were commenced in the ACT Magistrates Court, with the matter heard over 22-23 March 2017. The hearing included a view of the particular site where the fall took place, the oral evidence of Ms Beatty and of Mr Singh for Limelight Cinemas, who was the manager of the cinema at the material time. The evidence is set out below only to the extent necessary for consideration of the appeal.
The adequacy of the lighting on the stairs was the critical issue in the case ultimately put by the plaintiff below.
At all three light levels, there was dome lighting at the side of each row of seats, illuminating the letter for the particular row. The case below centred on the adequacy of that lighting in illuminating the reflective strips on the steps and the stairway generally.
Expert evidence as to the adequacy of the light levels was given by Dr Watson for the plaintiff below, and Dr Cooke for Limelight Cinemas. This included considering the relevant lighting standard and whether the lux levels in the theatre met those standards.
The Building Code of Australia for Special Use Buildings, which included theatres, provided:
H1.7 In every enclosed Class 9b building, where in any part of the auditorium, the general lighting is dimmed or extinguished during public occupation and the floor is stepped or is inclined at a slope steeper than 1 in 12, aisle lights must be provided to illuminate the full length of the aisle and tread of each step.
Dr Cooke visited the site and recorded the levels of luminance on the step nosing. Relevant to the facts as found, at level two, with the house lights on but dimmed, the lux level at the centre of each step was 0.7 lux. Dr Cooke’s opinion was that the adequacy of the lighting had to take into account the reflectivity of the nosings, which were clearly visible even with the house lights turned off (that is, at level 3). He considered that when the effect of the reflective nosings was taken into account, the lighting of the stairs was adequate.
Dr Watson did not visit the site and relied upon Dr Cooke’s measurements. His opinion was based on a technical non-compliance with the Australian standard for emergency lighting. That is, the lighting levels were inadequate because they did not comply with standard AS 2293.1 – 2005 for emergency lighting, which was 1 lux. The lighting of the stairs thus fell short of the Australian standard by 0.3 lux.
The Magistrate preferred Dr Watson’s evidence to that of Dr Cooke, based on his qualifications and the relevant expertise of the experts (see [16] of the reasons). Accordingly, the Magistrate accepted that the standard of 1 lux applied and that the illumination of the stairs was non-compliant.
Part of the evidence relevant to the issue of whether the standard of care owed by an occupier was breached included a management contract between the appellant and Cinema Management No. 1 Pty Ltd ACN 118 607 195 (Cinema Management). That agreement provided that Cinema Management was to fitout the cinema complex in accordance with the requirements of all relevant Authorities (a defined term in the document), with the fitout works including new seats, carpets and side curtains in all eight cinemas in the complex.
The Magistrate accepted (at [43] and [46] of the reasons) that Mr Singh did not know that the lighting did not meet the standard.
On the question of causation, part of Ms Beatty’s evidence as recorded by the Magistrate (at [25]-[26] of the reasons) was that from the plaintiff’s memory, she did not look down at the steps when she was moving toward the seat in row L. She stated she used her peripheral vision to see the stairs. She said this was normal human subconscious because she knew where she was going as she had just come up the same stairs.
The Magistrate recorded at [26] of the reasons:
It was not put to her in cross examination that she ‘did not look at the step’. It was not put to her that the degree of lighting made no difference to her actions as a result of her not looking.
Findings on breach of duty
The Magistrate’s consideration of liability is set out at [53]-[71] of the reasons. The Magistrate referred to the statutory considerations mandated by s 43 and s 168 of the Civil Law (Wrongs) Act 2002 (ACT) (Act). Although not expressly stated, a fair reading of the reasons suggests that the Magistrate then proceeded to consider those factors.
The Magistrate dealt with whether a breach of duty had occurred at [53]-[70] of the reasons, commencing as follows:
[53] It was conceded by the plaintiff that breach of the [standard] did not of itself establish negligence. The plaintiff did not rely upon the configuration of the stairs or the absence of a handrail, particularly noting their compliance with the relevant building codes. However, I note that both the stairs and the absence of a handrail were the physical context in which the plaintiff was operating at the time of her fall.
[54] It seems to me in all the circumstances that the plaintiff’s conduct at the material time was wholly foreseeable. …
[55] In relation to the point made by the [appellant] that no other reports of tripping or falling have been made from cinema two, I am satisfied that the plaintiff has established that the risk of falling in circumstances where there was poor lighting, indeed lighting that failed to meet the basic requirements set out in the code, was a not insignificant risk. …
The Magistrate then referred to Brozinic v Iss Facility Services Australia Limited and the Federal Capital Press of Australia Pty Limited trading as The Canberra Times [2014] ACTSC 8 (Brozinic).
I interpolate that Brozonic was a case which concerned a fire door opening onto a plaintiff standing behind it. Mossop M (as his Honour then was) found that the defendant in that case was not negligent in failing to install a window in the fire door. His Honour’s findings were upheld on appeal: see Brozinic v The Federal Capital Press Pty Limited trading as The Canberra Times [2015] ACTCA 8.
The Magistrate cited Brozinic at [55]:
That it is a risk that might not materialise as a consequence of the familiarity of users with the door and the caution with which they deal with such an obvious risk does not meant that the risk is an insignificant one.
The Magistrate went on to state at [56]-[57] of the reasons:
It seems to me that this approach is equally applicable to a cinema where patrons may well be familiar with the cinema layout and may well be cautious in relation to the use of stairs in such a theatre. Further, the fact that no falling incident has …come to Mr Singh’s attention does not mean that the risk of falling on poorly lit stairs is an insignificant one.
In the circumstances, it was open to the occupiers to approach the building owners for confirmation that a lighting engineer or technician had certified the lighting to be used in the cinema complex. It seems that despite what I consider to be a highly foreseeable risk, the occupier did not turn its mind to the risk. Indeed it appears that the defendant did not approach the building owner for any confirmation that the step lighting had been considered as part of the upgrade to the facilities. Nor was a request made that the building owner make a variation of the fit out works to address the lighting …
The Magistrate referred to Brozinic at [58], and then to a number of cases, the correct citations for which have been discerned as Jones v Bartlett [2000] HCA 56; 205 CLR 166 at [21]-[23] and Phillis & anor v Daly [1988] 15 NSWLR 65 at 74.
The Magistrate stated at [61]-[62] of the reasons:
It seems to me that the configuration of the stairs and the absence of a hand rail may be physical circumstances capable of falling into a category of risk discussed above. However, when a system of lighting falling below the standards applicable to the situation is added then it is taken beyond what might be described as a usual danger.
I must consider the probability that the harm would happen if precautions were not taken or the likelihood of the probably injury. It seems to me in all the circumstances that there is a very high probability that a person would fall in circumstances where stairs of the construction found in cinema two were not adequately lit.
The Magistrate then found (at [63] of the reasons) that a fall down a short flight of stairs could well involve serious harm and that there was a high likelihood of serious injury, before stating what she considered to be a reasonable response to the risk at [64] of the reasons:
There was no evidence in relation to any cost attributable to the defendant of simply drawing to the owner’s attention the requirement to comply with the [standard]. It would be difficult to imagine how, where the fit out of a cinema properly and competently undertaken omitted compliance with an applicable standard, the defendant would be charged additional costs for requiring compliance with that standard. …
At [69] of the reasons, the Magistrate stated:
Although not specifically stated by the plaintiff, it seems to me that in terms of her ability to appreciate the danger, she was a person able to understand that a flight of stairs may in circumstances be dangerous.
Findings on causation
The Magistrate’s dealing with the question of causation is extremely brief. It is to be found at the conclusion of [71] of the reasons (emphasis added):
In all the circumstances, I am satisfied that the failure of the defendant to adequately light the aisle in the vicinity of row N involved a breach of its duty of care and caused the plaintiff’s injuries.
Findings on contributory negligence
As to the issue of contributory negligence, the court referred to s 102 of the Act and to Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 592 (Podrebersek) before stating the following at [73]-[74] of the reasons:
In this matter I am of the view that the plaintiff departed to some degree from the standard of reasonable care, as she failed to adequately take in to account the nature of the stairs as she descended to attain the seat she had identified for herself.
In all the circumstances, I consider that it is just and equitable to reduce the damages recoverable by 10%.
The Magistrate then referred to the agreed quantum of $100,000 and gave judgment in the sum of $90,000, reflecting the finding on contributory negligence.
Issues on appeal
The notice of appeal dated 11 May 2017 raises seven grounds, summarised as follows:
(a)Error in finding that Limelight Cinemas breached any relevant duty of care owed to Ms Beatty (Ground 1).
(b)Error in rejecting the expert evidence of Dr Cooke (Ground 2).
(c)Error in finding that the breach of duty of care caused Ms Beatty’s injuries (Ground 3).
(d)Error in reversing the onus of proof (Ground 4).
(e)Failure to give reasons for findings on breach and causation (Ground 5).
(f)Error in making a finding of contributory negligence of only 10% (Ground 6).
(g)Failure to give any, or any adequate reasons for finding that Ms Beatty contributed to the negligence in a proportion of only 10% (Ground 7).
Jurisdiction and nature of the appeal
Although they are well established and were uncontroversial in this case, it may be convenient for the benefit of the parties to set out the principles governing the exercise of the Court’s jurisdiction, pursuant to s 274 of the Magistrates Court Act 1930 (ACT).
This Court may hear and decide appeals from a judgment or order of the Magistrates Court as of right where the claimed exceeds $2000, and an appeal under pt 4.5 of the Magistrates Court Act is by way of a rehearing: Ruiz v Canberra Rex Hotel Pty Ltd (1974) 5 ACTR 1 at 3; Malek v Remondis Australia Pty Limited [2015] ACTSC 135 (Malek) at [11]. A rehearing is not a retrial. The appellant still carries the onus of showing that the decision appealed from ought be reversed: Powell v Streatham Manor Nursing Homes [1935] AC 243 at 249.
The general powers of this Court hearing an appeal from the Magistrates Court are set out in r 5052 of the Court Procedures Rules 2006 (ACT). The Court is obliged to conduct a real review of the trial and of the magistrate’s reasons, and has the power to weigh the evidence and draw conclusions, though bearing in mind the advantage of the magistrate in having seen and heard the witnesses: Fox v Percy [2003] HCA 22; 214 CLR 118 at [25]; Malek at [13].
An action in the tort of negligence requires the court to make findings of a breach of duty of care on the balance of probabilities. Such a finding is an evaluative judgment to be made by reference to the relevant provisions of the Act and established norms. An appellate court reviewing such findings made by a primary judge is required to determine whether the decision of the court below is wrong by falling into error of law, making a clearly wrong finding of fact or exercising a discretion on a wrong principle, and only on such finding is this Court justified in interfering with the decision of the court below: Kalis v New [2017] ACTSC 334 per Refshauge J at [7].
It is the duty of the appellate court to form an independent judgment about the proper inferences to be drawn from established facts. In deciding what the proper inference to be drawn is, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it: Warren v Coombes (1979) 142 CLR 531 at 551.
Relevant legislation
Section 168 of the Act is in the following terms:
Liability of occupiers
(1) An occupier of premises owes a duty to take all care that is reasonable in the circumstances to ensure that anyone on the premises does not suffer injury or damage because of—
(a) the state of the premises; or
(b) things done or omitted to be done about the state of the premises.
(2) Without limiting subsection (1), in deciding whether the duty of care has been discharged consideration must be given to the following:
(a) the gravity and likelihood of the probable injury;
(b) the circumstances of the entry onto the premises;
(c) the nature of the premises;
(d) the knowledge the occupier has or should have about the likelihood of people or property being on the premises;
(e) the age of the person entering the premises;
(f) the ability of the person entering the premises to appreciate the danger;
(g) the burden on the occupier of removing the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
(3)Part 7.1 (Damages for personal injuries—exclusions and limitations) and part 7.3 (Contributory negligence), other than section 102 (2), apply in relation to a claim brought by a person against an occupier of premises in relation to injury or damage.
(4) This section replaces the common law rules about the standard of care an occupier of premises must show to people entering on the premises in relation to any dangers to them.
(5) This section does not affect—
(a) other common law rules about the liability of occupiers to people entering on their premises; or
(b) any obligation an occupier of premises has under another Act or any statutory instrument or contract.
(6) In this section:
occupier, of premises, includes the lessor of premises let under a tenancy who—
(a) is under an obligation to the tenant to maintain or repair the premises; or
(b) could exercise a right to enter.
Section 43 of the Act is also relevant to the consideration of this appeal. It provides:
Precautions against risk—general principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
(a) the probability that the harm would happen if precautions were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity creating the risk of harm.
Section 45(1) of the Act is relevant to the causation grounds in this appeal. It is in the following terms:
General principles
(1) A decision that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the happening of the harm (‘factual causation’);
(b)that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability).
…
The burden of proving any fact in relation to the issue of causation lies with the plaintiff: s 46 of the Act.
Section 102 of the Act governs contributory negligence. It relevantly provides:
Apportionment of liability—contributory negligence
(1) If a person (the claimant) suffers damage partly because of the claimant's failure to take reasonable care (contributory negligence) and partly because of someone else's wrong—
(a) a claim for the damage is not defeated because of the claimant's contributory negligence; and
(b) the damages recoverable for the wrong are to be reduced to the extent the court deciding the claim considers just and equitable having regard to the claimant's share in the responsibility for the damage.
…
Sub-sections 102(2)-102(5) of the Act are not germane to this appeal.
Ground 1: Breach of duty of care
Failure to eliminate a risk that was reasonably foreseeable and preventable does not necessarily establish negligence in terms of a breach of duty of care. It is necessary to determine what was a reasonable response to that risk: Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; 211 CLR 317 at [99].
As part of that consideration, the Magistrate found at [62] of the reasons (set out above) that there was a ‘very high probability’ that a person would fall in circumstances where stairs of the construction found in cinema two were ‘not adequately lit’.
Part of the argument on appeal was directed to the lack of evidence as to the likely cost to Limelight Cinemas of remedying the ‘inadequate lighting’ so that it complied with the relevant codes and standards. In response, Ms Beatty submitted that it is a matter of common knowledge that all that is required to increase the illumination of a light fitting is to increase the wattage of the light bulb.
However, before the evidence is even considered, there is a difficulty with the legal principle as applied by the Magistrate. The finding of a high probability that a person would fall in circumstances where the stairs were ‘not adequately lit’ is vague, and obscures the nature of the consideration that was required. The reasoning that followed demonstrates that the Magistrate applied the incorrect test with regard to risk of harm.
The ‘risk’ that ought to have been considered is the risk of injury being caused by the defendant’s conduct, rather than the risk of an event that, in turn, carries a risk of injury: see Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 per Gummow J at [60]-[61]. This is consistent with s 43(2)(a) of the Act, set out above. The relevant conduct is a failure to take precautions against ‘a risk of harm’ that was foreseeable and not insignificant. The requisite consideration is the probability that the harm would happen if precautions were not taken.
The precaution that the Magistrate identified was the ‘system of lighting falling below the standards applicable to the situation’. Accordingly, the Magistrate ought to have considered the probability that a difference of 0.3 lux in luminance (that being the identified lack of illumination on the stairs) might cause a person in a cinema with dimmed lights to fall because she was unable to see where she was going (see also Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 per McColl JA (with whom Ipp JA agreed) at [129]).
That consideration does not feature in the Magistrate’s reasoning. Relevant to that question (although not determinative) was the evidence of a lack of any prior complaint about the lighting or reported incident in any of the cinemas for the three previous years.
Bearing in mind that it was the plaintiff’s onus to discharge, on the evidence adduced in the court below, it was not established that there was any change to the probability of a person falling on stairs in a dimmed room through the lack of an additional 0.3 lux in illumination.
Even if the ‘risk’ had been correctly identified, there is a further issue concerning what constituted a ‘reasonable response’ to it. Again, the issue arises in the context of the submission for the appellant that no evidence was led by Ms Beatty in the court below as to the likely cost of upgrading the lighting in circumstances where the appellant had no knowledge of any defect in the lighting (s 168(2)(g) of the Act). The detailed attention given in the reasons to the mandatory factors in s 43 of the Act appears to have diverted the Magistrate from what was ‘reasonable in the circumstances’ for the occupier to have done (being the words of s 168(1) of the Act).
The reasonable person is ‘a reasonable person in the defendant’s position, who was in possession of all the information that the defendant either had, or ought reasonably to have had’: s 42 of the Act. The circumstances as found by the Magistrate were that Mr Singh, the responsible person on behalf of Limelight Cinemas, did not know there was any failure to comply with the standard for emergency lighting on the stairs.
Before a finding could be made that an occupier breached its duty to Ms Beatty by failing to ask the building owner for confirmation that the upgrade (as set out in the management contract that was in evidence) included compliant lighting, there would need to be a finding that Limelight Cinemas knew or ought reasonably to have known that the lighting did or might not comply. That finding was not made. The highest the finding rose was that it was ‘open’ to the occupier to seek confirmation and that the occupier ‘did not turn its mind to the risk.’ The fact that it was ‘open’ does not mean that it was reasonable to require an occupier to make those enquiries. Again, on the evidence before the Court, I cannot see that such findings could have been made.
These misapplications of legal principle, derived from the words of the statute, were material to the Magistrate’s finding on breach of duty of care. Accordingly, Ground 1 has been established.
Ground 2: Rejection of expert evidence
The expert evidence was directed to the duty of care owed and breach of that duty. In light of my finding on Ground 1, consideration of Ground 2 is unnecessary.
Grounds 3, 4 and 5: Causation
Grounds 3, 4, and 5 may be dealt with together as they are all directed to the Magistrate’s finding on causation. Limelight Cinemas submitted that when deciding whether or not the appellant’s negligence caused the respondent’s injury, loss and damage, the Magistrate failed to apply the required test, set out in s 45(1) of the Act above.
It was contended that the plaintiff’s own evidence below as to the mechanics of her fall did not implicate the lighting of the stairs, and did not include the assertion that, for example, she could not see the steps of the cinema due to the poor lighting, and that as a result she fell and that caused her injury.
In response, it was contended for Ms Beatty that her evidence that it was a ‘subconscious decision’ to move down the stairs should be understood as a decision informed by all the information in her visual field, including her perception of the staircase as illuminated, and that it would be entirely artificial and against common human experience to break down that decision to a sequence of conscious decisions.
In the present case, it is not possible to know whether the Magistrate applied the test set out in s 45 of the Act or not. As will be apparent from the summary of reasons set out above, no reasons were given to support the bare conclusion at [71] that the breach of duty of care found by the Magistrate caused Ms Beatty’s injuries.
The relevant principles with regard to the obligation to give reasons were set out in O’Brien v Noble [2012] ACTCA 13; 6 ACTLR 132 (O’Brien v Noble) where the Court of Appeal stated at [20]:
A trial judge’s obligation to give reasons for his or her decision is well recognised. For present purposes the authorities can be summarised as follows:
(a)Judges at first instance, as part of the exercise of their judicial office, have a duty to state the findings and reasons for decision adequately to enable a proper understanding of the basis on which the verdict has been reached. Failure to fulfil this judicial obligation may constitute an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376 at 382 per Asprey JA.
(b)An appeal court should not be left to speculate from collateral observations as to the basis of any particular finding: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 per McHugh JA.
(c)Although the obligation does not require the spelling out of every detail of the process of reasoning, the reasons must resolve critical points in contest and facilitate appellate review: Kendirjian v Ayoub [2008] NSWCA 194 at [169] per McColl JA.
(d)Awards for damages should not be arrived at intuitively, but a process of methodical consideration must be undertaken; in Gamser v Nominal Defendant (1977) 136 CLR 145 at 149, Stephen J said:
[R]easons should condescend to some degree of particularity concerning the process by which the particular award of damages has been arrived at … An award of damages is not, nor should it ever be, arrived at intuitively.
(e)Merely stating a preference for particular evidence as opposed to a competing body of evidence is not sufficient. In Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 at 191; [28], Ipp JA said:
It is not appropriate for a trial judge to merely set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: ‘I believe Mr X but not Mr Y and judgment follows accordingly’. That is not the way in which our legal system operates.
O’Brien v Noble was also cited recently in Peter v Wade [2017] ACTSC 122 by Murrell CJ at [25].
Causation was an essential element of the plaintiff’s case in the court below. Some explanation for the Magistrate’s finding was undoubtedly required and its absence means that Ground 5 must be upheld. Such an error of law by itself would warrant remittal to the court below so that adequate reasons may be given.
However, the challenge in Ground 3 of the appeal was that the causation finding itself was in error. Although that was a finding of fact by the court below, given the absence of reasons, the acceptance of Ms Beatty’s evidence and the fact that Ms Beatty’s evidence is not challenged in order to found this ground of appeal, this Court is in as good a position as the Magistrate was to determine the question of causation.
In Wilkinson v Law Courts Ltd [2001] NSWCA 196, per Heydon JA (with whom Meagher JA and Rolfe AJA agreed) at [32]:
Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances. Among the essential circumstances is the following fact: ‘persons using steps may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety’: Stannus v Graham (1994) Aust Torts Reports 81-297 at 61,566 per Handley JA. …
In Owners Strata Plan 30899 v Perrine [2002] NSWCA 324 (Perrine), having cited the above passage, Davies AJA (with whom Sheller JA agreed) gave consideration to the circumstances before the NSW Court of Appeal in that case, stating (relevantly) at [55]-[57]:
The respondent did not give evidence that any difficulty in discerning the nosing of the steps contributed to her fall. Her evidence does not show that she was exercising due care as to where she put her feet. Her evidence is as consistent with inattention on her part as with any other explanation.
The respondent’s evidence was as follows:
“A. My – as I opened the door, proceeded to come down as I touched the first steps my foot just shot forward and I went on a free fall.
…
This evidence does not show that the respondent was misled as to the position of the edge of the steps. It merely shows that she missed the step.
In the present case, as was the case in Perrine, Ms Beatty’s evidence was that she mis-stepped – she stepped into ‘nothing’. Her evidence was not that she fell because of an inability to see any part of the steps. In particular, neither her evidence nor the evidence of the expert Dr Watson supports any finding that the 0.3 lux deficiency (the conduct found to constitute a breach of duty of care) had any causative effect, so as to constitute a ‘necessary condition of the happening of the harm’.
Even if I was prepared to draw the inference from Ms Beatty’s evidence that she thought she was stepping forward on one of the longer treads when in fact she was on a short, intermediate step, that does not enable a link to be made to the fact that the lighting did not meet the 1 lux standard, because Ms Beatty could have suffered the same misadventure when descending the steps with the house lights not dimmed at all.
It was incumbent upon the plaintiff to demonstrate that the 0.3 lux deficiency in illumination contributed in some way to her misstep. The evidence before the Court does not enable such a finding. The Magistrate’s comment at [26] of the reasons that it ‘was not put to her in cross examination that she did not look at the step’ is not to the point because Ms Beatty had not led evidence in chief as to her difficulty with the lighting.
In addition, that comment by the Magistrate does suggest that there was some confusion about the onus in this regard (being the complaint raised in Ground 4). However, because of my findings in relation to Grounds 1 and 5 above, separate consideration in these reasons as to what is required to establish a complaint about onus is unwarranted.
For the above reasons, the Magistrate erred in finding that the failure of Limelight Cinemas to adequately light the aisle in the vicinity of row N caused the plaintiff’s injuries and Ground 3 ought also be upheld, with the Magistrate’s finding on causation set aside.
Grounds 6 and 7: Contributory negligence
Consideration of the grounds relating to contributory negligence falls away, because based on the above findings, Limelight Cinemas was not negligent in the first place.
In the event the above findings are subsequently found to be wrong, there is a lacuna in the reasons as to whether any assessment of the relative importance of the acts of the parties in causing the damage was undertaken, in accordance with the principles articulated in Podrebersek to which the Magistrate had earlier referred.
As set out above, the Magistrate found that the plaintiff departed to some degree from the standard of reasonable care, as Ms Beatty failed to adequately take into account the nature of the stairs as she descended.
Had the Magistrate then considered the relative importance of the acts of the parties in causing the fall, the conduct of Ms Beatty may have taken on importance when compared with a difference of 0.3 lux in illumination of the step. That conduct included an admission that she did not look at the stairs with any particularity and acted according to her ‘normal human subconscious’, suggesting no adjustment was made by Ms Beatty for her own surroundings, such as taking any care as to where she was putting her feet.
However, given the findings on liability it is appropriate to refrain from further considering these grounds, including any discussion of the principles applying to intervention by an appellate court.
Conclusion
The idea that stairs are inherently and obviously dangerous, and that members of the public should exercise care when using them, carries even greater force when the circumstances are the navigation of stairs in a darkened room such as a movie theatre. Unfortunately for Ms Beatty, that danger came to pass.
For the above reasons, the appeal ought be allowed. That will have costs consequences, with the discretion of the Court being exercised so as to order that costs follow the event on appeal and in the court below.
Orders
The orders of the Court are as follows:
1. The appeal is upheld.
2. The orders of the Magistrates Court made on 10 April and 4 May 2017 are set aside and in lieu thereof, the following orders are made:
(i) Judgment is entered for the defendant.
(ii) The plaintiff is to pay the defendant’s costs.
3. The respondent is to pay the appellant’s costs of the appeal.
| I certify that the preceding eighty-six [86] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: |
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