Veljanovska v Yugoslav-Australian Cultural Youth Folk Ansambl Vojvodina Inc.
[2018] VCC 1940
•28 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-16-03039
| Vera Veljanovska | Plaintiff |
| v | |
| Yugoslav-Australian Cultural Youth Folk Assembly | Defendant |
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JUDGE: | Saccardo | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29-31 October and 1, 2 and 7 November 2018 | |
DATE OF JUDGMENT: | 28 November 2018 | |
CASE MAY BE CITED AS: | Veljanovska v Yugoslav-Australian Cultural Youth Folk Ansambl Vojvodina Inc. | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1940 | |
REASONS FOR JUDGMENT
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Subject: Occupier’s Liability.
Catchwords: Scope of Duty of Occupier.
Legislation Cited: Wrongs Act 1958 (Vic).
Cases Cited:Western Suburbs Hospital v Currie (1987) 9 NSWLR 511; Turner v South Australia (1982) 56 ALJR 839; Nagle v Rottnest Island Authority (1993) 177 CLR 423; Romeo v The Conservation Commission of Northern Territory (1998) 72 ALJR 208; Wyong Shire Council v Shirt (1980) 146 CLR 40.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Thompson QC and Ms F Crock | Dellios Lawyers |
| For the Defendant | Mr D McWilliams | HWL Ebsworth |
HIS HONOUR:
1 In this proceeding the plaintiff seeks damages for injury sustained by her on 3 August 2013.
2 It is alleged by the plaintiff that on that day she suffered injury whilst attending the defendant’s social club in Albion and that her injury was caused by the breach by the defendant of the duty it owed as the occupier of the premises to the plaintiff.
3 At all material times the defendant occupied, managed and controlled a hall in Albion (“the hall”) at which is conducted a club known as the Yugoslav-Australian cultural club. The club had been operating since 1983. In approximately 1995 the club had completed the building of the hall and it opened it for use. For approximately eight years prior to the date of the plaintiff’s injury it had operated at that premises where it conducted dinner dances on a monthly basis.
4 There is no issue:
(i) that on 3 August 2013 the plaintiff attended the hall for the purpose of a dinner dance.
(ii) The plaintiff suffered injury on the evening of 3 August or the early hours of 4 August when she fell whilst at the hall.
5 Neither is it an issue that at the time of the plaintiff’s injury:
(i) the defendant was conducting a function attended by approximately 144 members of the broader Yugoslav community;
(ii) the function effectively took the form of a dinner dance in which food and alcohol were available to the attendees, the alcohol being purchased from a bar located at the rear of the hall.
6 It is alleged by the plaintiff that whilst at the club, sometime after midnight as she was walking to a table at which she had been sitting which involved her skirting the dance floor, she was knocked to the floor by someone engaged in a traditional Yugoslav dance.
7 There is no issue that:
(i) the floor plan relevant to the seating arrangements at the time which the plaintiff suffered injury is essentially that depicted in the plan which is the plaintiff’s exhibit A (the plan);
(ii) during the evening the plaintiff was sitting at the table numbered 15 which was located in the approximate position of that shown in the plan;
(iii) the bar was located to the rear of tables 11 and 12; and
(iv) the main access from the entry of the premises (which is marked at the foot of the plan with the word “entry”), both to the dance floor and to table 15, was by reason of a pathway (the central corridor) which was created by the positioning of the line of tables numbered 6, 7 and 8 on the plan on one side and tables 9, 10 and 11 on the other.
8 Essentially parties are in agreement that the floor surface of the interior of the hall comprised polished wooden floorboards upon which 16 round tables were assembled to provide an area of seating.
9 Within that area the tables were assembled at positions such that that they defined the boundaries of a rectangular open space which was employed as a dance floor.
10 A stage was located at the head of the dance floor upon which, at the time at which the plaintiff sustained her injury, a band was assembled which was playing Croatian dance music.
11 The music in question took the form of a “Kolo” which the evidence establishes is a type of dance in which:
· the participants hold hands and move in a line the direction of which is determined by the head of the line; and
· the speed of movement is determined essentially by the tempo of the music which can vary from fast to slow.
12 Whilst a number of factual issues are in dispute there is agreement between the parties upon the following matters:
(i) the boundaries of the dance floor were marked by nothing other than the position of the tables and chairs which surrounded it;
(ii) the spacing of the tables was such that it was possible to wind one’s way between the tables and chairs which surrounded them;
(iii) The purpose of the central corridor was to allow patrons of the club relative ease of access to and from the dance floor and the toilets and bar, both of which were located at the rear of the hall, and the use of the central corridor was the accepted route of access to those areas;
(iv) whilst access to those areas could be gained by taking other routes around various tables such access might involve the necessity to squeeze between chairs or the repositioning of chairs. Whilst it is clear that such access was available, the ease of passage through that access was of course dependent upon how many people were sitting at the various tables in the position of the chairs. There is no issue however that patrons were free to and did choose their own pathway to and from the dance floor and around the venue and that it was not the case that access to those places was confined to passage along the central corridor;
(v) the positioning of the tables and chairs located adjacent to the left hand and right-hand side walls of the hall[1] was such that no access to the rear of the club could be gained by walking between the tables and those walls;
[1] Tables 16, 15, 14, 13 and 12 to the right of the plan and tables 5, 4, 3, 2 and 1 to the left of the plan.
(vi) on the evening in question approximately 144 people had attended the club and this resulted in the club being “crowded” notwithstanding that it had a maximum capacity of 160 people;
(vii) At the time at which the plaintiff fell she was located on the dance floor but to its periphery in the vicinity of the border of the dance floor formed by the position of table 9;
(viii) Although alcohol was being served throughout the evening the plaintiff had not consumed any alcohol prior to sustaining injury and there is no evidence of any other attendee being affected by alcohol in a way which was relevant to the injury sustained by the plaintiff.
The factual issues to be determined relevant to the primary issue of liability
13 The issues in dispute by the parties to be determined by me relevant to the primary issue as to liability involve the following.
1. At the time at which she was injured:
a) was the plaintiff moving towards her table from the rear of the premises and in so doing was she walking in a direction from table 9 towards table 15; or
b) was the plaintiff moving away from table 15 and towards table 9;
2. Was the plaintiff’s injury occasioned by a fall which resulted from:
a) contact between the plaintiff and one of the dancers participating in a Kolo, which contact caused the plaintiff to fall; or alternatively
b) a simple fall in which the plaintiff merely lost her footing in the absence of any contact by any other person;
3. If the plaintiff was moving towards her table from the rear of the hall, given the activity which was being undertaken on the dance floor, was it unreasonable on the part of the defendant to require the plaintiff to gain access her table via a route which involved the plaintiff walking firstly along the passageway and thereafter traversing an area of the dance floor, rather than some other route which did not require her to traverse the dance floor
4. At the time at which the plaintiff suffered injury:
a) was the dance floor crowded; and
b) were the people engaged in the Kolo moving in a fast exuberant manner or a quiet docile manner.
14 In the context of those findings the question arises as to whether the plaintiff has established that the negligence by the defendant was a cause of injury to her.
Analysis and determination of factual issues relevant to liability
15 The viva voce evidence relevant to factual issues to be determined by me as set out above is that of three witnesses:
(i) The plaintiff;
(ii) Rada Ovuka;
(iii) Michael Konsz.
That evidence in turn may be summarised as follows.
The Plaintiff
16 The plaintiff attended the club at the suggestion of her friend Rada Ovuka. On the evening she observed nearly all of the tables to be full. She said the seating arrangement was that depicted in the floor plan which is Exhibit A and that during the evening she was sitting at table 15, she took part in the slower dances and did not at any time consume alcohol.
17 She described suffering injury in the following circumstances:
· At some time after 11pm but before 12am[2] by which time a lot of alcohol had been consumed by people attending the function[3], the plaintiff left her table to go to the toilet and returned making her way up the central walkway which she described as using because:
[2] T 15 L 30
[3] T 15 L 35
“There was no other way for me to get through”.
· As the plaintiff arrived at table 9 she picked up an empty bottle because she was collecting them to give to a friend for the purpose of making wine.[4]
[4] T 19 L 20 – 45
“as I was going past the people that were dancing….. They trip me up and I fell down... [5]
[5] T 20 L 15
· The plaintiff confirmed that she was on the dance floor, walking between tables 8 and 9 and that the dancers were dancing in a circle moving off the dance floor between tables 3 and 8 and returning between tables 8 and 9.[6]
[6] T 21 L17-21
There was a whole row of people holding hands dancing fast and jumping.[7]
[7] T 21 L 26
Q. Do you know the person who make contact with you?
A: No no idea …
Q. Okay. Whereabouts on your body did he make contact?
A. As I was walking and taking a step he- he knocked me in my legs.
Q And you know what part of his body hit you?
A. I think with his legs but I did not see I am not sure.[8]…
I fell to the ground……It was a heavy fall. I was not unconscious but I was severely dazed.[9]
[8] T 22 L26 – 41
[9] T 23 L39-45
18 In the course of her evidence and cross examination the plaintiff described the contact between herself and the other person as involving a kick, she equally maintained that she was knocked down[10] explaining
[10] T 41 L39
“All I know is that I was hit in the legs and fell down”[11]
[11] T42 L9
I do not know how many people hit me. I think it was only one person that hit me, because they were dancing in a circle[12]
[12] T 42 L28
Maybe the people that were in the circle hit me I don’t know[13]
At that time I was walking down and then they came around with a fast dance across towards the - in between 8 and 9, and I was going past, one of the dancers knocked me down”[14]
[13] T43 L 1
[14] T43 L23 – 25
19 I am satisfied that the plaintiff was a witness who was doing her best to describe the circumstances in which she was injured.
20 I am equally satisfied that:
(i) the incident occurred very quickly and that her evidence is most probably based on her impression of what occurred and to some extent a reconstruction of that event in circumstances in which she was not expecting and did not see the contact which she described as being responsible for her fall; and
(ii) the plaintiff for the above reason was not in the position to describe with any precision the mechanism of the fall.
21 Whilst for the reasons set out below I am satisfied that:
· contact was made by someone who was probably dancing on the dance floor with the plaintiff which contact caused the plaintiff to fall heavily and suffer injury; and
· that contact occurred in the area of the plaintiff’s legs;
I am not satisfied that the evidence allows me to fix with any more particularity other than that which I have recorded above the circumstances in which the plaintiff suffered injury and in particular the movement of the person who caused the plaintiff to fall and whether that person was a man or a woman, notwithstanding the plaintiff in her evidence referring to the person by applying the term “he”.
Rada Ovuka
22 For some 20 years, until approximately five years ago, Ms Ovuka held the position of president of the club.
23 It was at Ms Ovuka’s invitation that the plaintiff attended the club on the evening of her injury at which time the club was holding a Saturday night dance. Ms Ovuka described the general positioning of the tables within the hall as that depicted by Exhibit A. She described the dancing during the evening as involving all types:
So we have fast dancing, we have slow dancing, it depends…
But we have all. Like, on the - just on the floor dance, the young ones used to go round the tables. Depends of the music.’[15]
[15] T 315 L 12-16
As to the plaintiff’s movements immediately before she suffered injury Ms Ovuka said:
I didn’t see her go , but I saw Vera when she is back from the toilet. … I saw her come near the number 9 table… And then I didn’t look after. But when I turn round, I saw Vera on the floor….. She was between- might be when you look at the floor, I couldn’t describe exactly but she was between nine and 15 like on the floor[16]…… Before the accident?... Yeah, I saw her coming at 9 number 9.[17]
[16] T 316 L 10-23
[17] T 316 L 26-28
Commenting upon the dancing of time at which the plaintiff fell Ms Ovuka said:
“The line is called Cacak. That is very that similar. I can describe it because…everybody knows the Greeks Zorba whatever … And that kind of -you know , the younger ones they hold their hand on top of them shoulders…. And they dance. This is very similar fast stands is Cacak calls. …. That’s similar to Zorba……. Well of course they’re,-he had the music and jumping…… Well the dancers of gone around and when Vera was on the floor maybe they didn’t see her there and they---“[18]
[18] T 317 L 11–26
24 Whilst Ms Ovuka spoke broken English without the assistance of an interpreter nevertheless she made it clear that:
(i) She recalled observing the plaintiff to be returning from the toilet along the central passageway towards table 15, at which time young dancers were engaged in a fast “Cacak”;
(ii) She temporarily lost sight of the plaintiff but thereafter observed her to be lying on the floor in the vicinity of table 9.
Michael Konsz.
25 Mr Konsz was a founding member of the club and was involved in its establishment in 1983. He said that the current facility was established in around 2005 and that members would attend the club on Tuesday and Friday nights. He said that dances were held at the club on the first Saturday of every month for the purpose of raising money and that the function which the plaintiff attended on the night of the injury fell into that category.
26 He described the capacity of the hall as being approximately 160 people and that the attendance on the evening of the plaintiff’s injury was such that the total number of people in attendance was approximately 144 such that the club was pretty crowded[19]. He agreed that the positioning of the tables was as demonstrated in the floor plan which is Exhibit A with the exception that tables 8 and nine were a bit further towards the back of the room to allow more room to dance having regard to the number of people who were present.[20] he said that Food & Drink was available.
[19] T 418 L 16
[20] T 399 L 17
27 Mr Konsz said that during the evening all sorts of dances were played including a Kolo and Cacak. Mr Konsz described the latter dance as being a fast one.[21] He said that the dances in which people can move in the line holding hands could be fast or slow.[22]
[21] T 402 L 17
[22] T 403 L 7
28 Mr Konsz said that a raffle normally occurred which finished at around about midnight, the raffle took half an hour to organise and that many people left after the raffle, the result being that on the night in question he estimated there were only 70 people present at the time at which the plaintiff suffered injury.
29 He described the plaintiff’s injury as occurring in the following circumstances;
· Mr Konsz was sitting at table 14 with his wife;
· Immediately before the plaintiff was injured he remembered a group of people to be present on the dance floor of approximately 15 in number who were dancing a slow dance;
· Mr Konsz observed the plaintiff walking from her table towards him. As she approached him, she fell;
· The nearest dancer was approximately 90 cm or a metre away from her and he did not believe that contact between any dancer and the plaintiff was implicated in the cause of her fall:
“Nobody pushed her. Nobody-I haven’t seen nobody close enough to do that”[23]
[23] T415 L 9-10
30 In cross examination Mr Konsz agreed that to move between the tables other than through the central corridor was squeezy[24] and that people were expected to move up and down the central corridor. He said that sometimes because people might be blocked by dancers they might for that reason squeeze between the tables.[25]
[24] T418 L 19
[25] T419 L 24
31 Mr Konsz gave the following evidence as to the possible reconfiguration of the tables:
Q: Did it ever occur to you, in running these functions, that it would be a good idea to move the tables in from the wall so that patrons could walk down safely away from the dancing if they were going to the toilet? A: Then you block the main entrance to the middle of it.
Q: Well, you could. But so what?
A: Maybe – we'd rather have the middle wide open. Now, it – we can let that – suggest that to the member of the club if they want to do that way. But up to now we always kept it as this.
Q: Or, could I suggest, you could put smaller tables down against the walls so people could walk down there away from the dancing?
A: We can do that too, I suppose. No harm done.
Q: Have you ever done it?
A: We can do it.
Q: You could do it?
A: I show this to members when I come to meeting.
Q: It wouldn't be a bad idea, would it?
A: Yes.
Q: So people wouldn't have to mix with the dancing?
A: Yes.
Q: You agree?
A: I agree.[26]
[26] T 420 L 16 – T 421 L2
32 Whilst in closing submissions Mr Thomson QC on behalf of the plaintiff relied upon the concession made in the passage above I take that concession to be made with the benefit of hindsight involving what could have been done rather than what should have been done.
33 In particular I do not accept this to be a concession as to what a reasonable occupier applying foresight, in the context of no incident of this type having occurred previously in the course of the operation of the club would have done to prevent the exposure of users of the club to unreasonable risk of injury.
34 Mr Konsz agreed that there were dances in the form of “Kolos” in which people kicked their feet out and that the way that people moved was dictated by the tempo of the music.[27]
[27] T 422 L 17 – 26
Findings as to factual issues relevant to primary liability
35 I am satisfied that all the witnesses who gave evidence upon the issue of liability were doing their best to tell the truth as they remembered it.
36 It is clear however that there is a disparity in the evidence of:
(i) the plaintiff and Ms Ovuka on the one hand; and
(ii) Mr Konsz on the other hand;
as to the direction in which the plaintiff was moving at the time at which she suffered injury.
37 The weight of the evidence as to this issue supports the plaintiff’s position and I find that evidence to be persuasive primarily for that reason.
38 It follows, accepting the evidence of Mr Konsz as to his position at the time in which the plaintiff suffered injury, that his observations of the plaintiff’s direction of movement are totally unreliable.
39 The plaintiff’s evidence that contact between herself and someone else was the cause of her fall was unequivocal and unwavering notwithstanding cross examination upon this issue which was extremely thorough.
40 Her position that such contact was made is supported by contemporaneous statements made by the plaintiff to ambulance officers who attended the scene and to the triage nurse who managed her admission to hospital.
41 Whilst it is clear that the plaintiff was wearing “high heel” shoes at the time which she fell, in my opinion the video evidence demonstrates the plaintiff to be comfortable in those shoes as she moved to and from the dance floor and for the shoes to provide the plaintiff with a stable platform which allowed her to move on and off the dance floor and to engage in dancing without any difficulty.[28]
[28] Defendant’s Exhibit 1
42 The combination of those factors (none of which provide any support for the evidence of Mr Konsz to the effect that the plaintiff suffered injury mainly because she fell off her heels) when considered in the context of the unreliability of Mr Konsz as to the direction in which the plaintiff was walking at the time at which she was injured, move me to prefer and accept the plaintiff’s evidence as to the circumstances in which she came to fall.
43 As to whether or not the dance floor and premises was crowded at the time at which the plaintiff suffered injury, and the type of dance which was being undertaken[29], the evidence of both the plaintiff and Ms Ovoka is largely consistent on this issue and I prefer that evidence to the conflicting statement by Mr Konsz.
[29] Namely whether the dance involves a fast Kolo, which is the plaintiff's evidence, or a slow Kolo, which is the evidence of Mr Konsz.
44 Although, as I said, I accept the evidence that the plaintiff fell by reason of contact made by someone on the dance floor I am not satisfied that the effect of that contact allows me to draw an inference one way or another as to how crowded the dance floor was at the time.
45 For the reasons set out above I am satisfied that:
(i) the plaintiff suffered injury as she was moving towards table 15 in the manner which she described in her evidence; and
(ii) the plaintiff’s injury was occasioned by the fact that she was bumped or in some other way contacted by someone on the dance floor.
46 I am not satisfied however that the evidence establishes precisely what the person who made contact with the plaintiff was doing at the time at which the contact was made other than it is probable that the person was dancing. In particular I am not satisfied that the evidence establishes that the person was dancing in an aggressive or unrestrained manner or otherwise.
47 Whilst I accept the evidence that at the time at which the incident occurred a significant number of people were still present at the venue, there is no evidence as to how crowded the dance floor was at the time which the plaintiff suffered injury. Neither is there any evidence that the dance floor was so crowded that there was no room for the plaintiff to make her way safely around the edges of the dance floor if she wished to do so. The diagram prepared by the plaintiff which demonstrates her movements tends to suggest, if anything, that the plaintiff chose her route to her table which dissected the bottom right hand corner of the dance floor rather than one which involved her skirting the edge of the dance floor and maintaining a position which kept her close to tables 8 and 14.
48 Finally, with respect to the issue as to the relevance of the movement of dancers on the dance floor or in its vicinity, whilst I accept the position put on behalf of the plaintiff that the defendant was aware that guests may at times dance between tables, I am not satisfied that the plaintiff has established that the behaviour of guests dancing around tables at the time at which she was injured in any way contributed to the injury sustained by her.
49 It follows for these reasons that I am not satisfied that the plaintiff has established that her injury was caused by any failure by the defendant to supervise or instruct club members as to how they should behave whilst dancing. Nor am I satisfied that the evidence establishes that:
· the dance floor was overcrowded; or
· the dancing both in its exuberance or by reason of the fact that it spilled out into the areas occupied by the tables, was anything other than what might normally be expected in the operation a the venue of this type.
Legal Principles
50 I am satisfied that it is appropriate to describe the risk of the plaintiff suffering injury in the circumstances about which I have made the above findings as being neither far-fetched nor fanciful and accordingly foreseeable.
51 That having been said, it is clear that a risk may be so unlikely to occur, or that it’s likely consequences may be so trivial, that in all the circumstances a reasonable occupier may consider that it is not worth the trouble or expense involved in avoiding or reducing that risk.
52 Given the range of injuries which may be occasioned by a fall caused by unexpected contact between a dancer and someone walking along the periphery of the dance floor, I am satisfied that it could not be said that the consequences of the foreseeable risk of injury in this instance could be regarded as being so trivial that the existence of that risk would not move a reasonable occupier to undertake the relatively simple and inexpensive task of creating a walkway between the tables positioned alongside the walls.
53 It follows in my opinion that a reasonable occupier in the position of the defendant would have taken that action unless the risk, which in this instance was foreseeable, was so unlikely to occur that a reasonable occupier in the position of the defendant would have considered it unnecessary to act in a positive way to deal with the risk
54 It is clear that the decision whether a duty of care of an occupier has been breached must be considered in the context of the obligation of those occupying a premises to apply positive thought to the prevention of accidents being occasioned to lawful entrants onto their property. See Western Suburbs Hospital v Currie[30].
[30] (1987) 9 NSWLR 511 at 518
55 As Gibbs CJ commented in Turner v South Australia[31]:
…Where it is possible to guard against a foreseeable risk which although perhaps not great, nevertheless cannot be called remote or fanciful by adopting a means which involves little difficulty or expense, the failure to adopt such means will, in general be negligent”
[31] (1982) 56 ALJR 839 at 840
56 Prima facie the above statement applies to the circumstances of the present case. That having been said, however, the duty of care imposed upon the defendant as an occupier of the premises should be determined taking into account the action that a reasonable person in the defendant’s situation:
“would have taken to guard against the foreseeable risk of injury which existed”[32] and that an assessment of such action must be undertaken on the footing that the defendant had to take into account “the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety[33]”
[32]Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 431
[33] Ibid
57 As Kirby J commented in Romeo v The Conservation Commission of Northern Territory:
“It is one thing to hold that a person owes a duty of care of some kind to another. But the critical question is commonly the measure or scope of the duty . The failure to distinguish these concepts can only lead to confusion”[34]
[34] Romeo V The Conservation Commission of Northern Territory (1998) 72 ALJR 208 [122]
58 In Wyong Shire Council v Shirt, Mason J described the test which must be applied in circumstances in which a risk of injury is foreseeable in the following terms:
“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 in 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”.[35]
[35] Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48.
59 In reality this statement of the common law is mirrored by the latter position adopted by the Wrongs Act and prescribes the approach which I will take to my analysis of this case in fixing the obligation of the reasonable occupier in the position of the defendant.
60 In deciding whether there was a breach by the defendant of its duty as a reasonable occupier which was a cause of injury to the plaintiff in this instance, given my satisfaction that the plaintiff fell by reason of contact made with her body by someone dancing but that there is no evidence which establishes what the dancer was doing at the time of that contact. In particular there is no evidence that the dancer was acting in any way inappropriately and although as I have said I accept contact was made by someone with the plaintiff I am not satisfied that the evidence which satisfies me of that fact allows me to draw an inference as to the appropriateness one way or the other of the behaviour of the dancer.
61 In the above circumstances the issue for my determination is whether the defendant, as a reasonable occupier, taking into account all the circumstances with which the defendant was presented at the time which the plaintiff suffered injury, would have put in place a process the operation of which ensured that no physical contact occurred between people walking around the edge of the dance floor to gain access to their tables and dancers.
Analysis of whether the defendant was in breach of its duty of care to the plaintiff as the occupier of the premises
62 Essentially in closing submissions submitted on behalf of the plaintiff the case with respect to liability is put on the following basis:
1. The defendant failed to properly supervise or control the dancing including delineating the proper area for dancing.
In pressing that submission the plaintiff points to the fact that alcohol was being served, young people were dancing fast and off the dance floor, dancing was likely to block the way to the toilet and to interfere with non-dancing guests, the club was packed with attendees, alcohol was served and that boisterous physical dancing which had the potential of causing injury was encouraged.
2. The defendant failed to take any steps to create a walkway to the toilet from the front of the hall which did not permit mingling between guests and dancers.
In pressing this position the plaintiff points to the fact that it was common ground that the usual route to the dance floor involved traversing areas where dancing was likely, that the defendant accepted that a walkway next to the wall could have been created by moving tables away from the wall or employing smaller tables and that the expense, difficulty and inconvenience of taking such a step would have been minimal.
63 In analysing whether or not the defendant was in breach of the duty imposed upon it by reason of the provisions of the Wrongs Act as the occupier of the premises in which the plaintiff was injured, I am satisfied that the following matters must be considered as impacting relevantly upon the behaviour expected of a reasonable occupier in the position of the defendant:
(i)First, it is trite to say that:
· the defendant’s liability must be determined on the basis that the defendant’s obligation is only to act reasonably; and
· the approach which should be taken to my analysis is one which focuses upon not what a reasonable occupier could have done with the benefit of hindsight to avoid exposing the plaintiff to the risk of injury which manifested itself in this instance, but rather what a reasonable occupier should have done taking in to account the circumstances with which it was presented immediately prior to the plaintiff sustaining injury;
(ii)Second, the defendant had conducted the club for some 8 or so years during which period:
· dances were held on the first Saturday of each month;
a) the format of which; and
b) the layout of the hall including the tables for which;
was essentially no different to that which was in place at the time of the plaintiff’s injury; and
· no similar injury or incident of the type suffered by the plaintiff had occurred[36].
[36]The fact that the defendant has continued to operate the premises on the same basis and floor plan to that which operated of the time of the plaintiff’s injury in the absence of any evidence of the occurrence of any further injury is also a factor to be considered.
(iii)Third, there is no evidence to suggest that any complaint had ever been made to the defendant in the course of its history in the operation of the Club which alerted it to any problem associated with:
· the use of the dance floor;
· the absence of any marking identifying the boundaries of dance floor;
· the safety of the access of persons seated at the tables which abutted the dance floor to the rear of the hall; or
· the safety of the positioning of the seats and tables which abutted the dance floor.
(iv)Fourth, no evidence, expert or otherwise, was submitted in support of the existence of a practice by other venue operators to delineate the boundaries of a dance floor by marking the floor surface.
Notwithstanding the absence of any such evidence, common sense leads me to the conclusion that the presence of any delineation by way of a line or lines drawn on the dance floor, notwithstanding the fact that it would it provide some guidance as to the boundaries of the dance floor, would not necessarily confine the activity of dancers to dancing between the lines.
In my opinion it is beyond argument that some people enjoy dancing in close proximity to others for any number of reasons (including the most obvious, namely to mask their lack of coordination) and others adopt the exact opposite approach and seek out a clear space in which to exercise/parade their skills.
In the absence of any evidence as to the effectiveness of the presence of lines which mark the boundaries of the dance floor in controlling the place where people dance I am not satisfied that I should draw an inference that the presence of such lines would have had any effect in minimising any risk to the plaintiff given the fact that the choice which dancers may make as to dancing within a certain space is most probably as random as the way different people move on a dance floor and react to the differing tempo of the music.
Further there is no evidence that the presence of such a demarcation on the floor surfaces would have influenced the route taken by the plaintiff to a table in such a way as to prevent her injury.(v)Fifth, as I said the evidence does not establish that the plaintiff was bumped or struck by someone dancing in an aggressive manner.
In reality given the difference in the modalities adopted by dancers which can vary from exuberant to conservative regardless of the tempo of the music, I do not consider it safe to draw such an inference notwithstanding the fact that some people were clearly moving in a line towards or between tables as the plaintiff approached the point at which she was injured.
Even with respect to those dancers, whilst it is probable that some members of that group were moving in an uninhibited way, there is no evidence which establishes the way in which they were moving or that their movement was in any way causative of the plaintiff’s injury.
(vi)Sixth, that people entering or exiting a dance floor can move safely through and between dancers without encountering specific problems or dangers (notwithstanding the fact that people are dancing and oblivious to that movement) is a matter of every day experience and common sense.
The ease with which that activity could be achieved in this instance is demonstrated by the video footage of the plaintiff doing so.
It follows that there is no reason why a person walking around the dance floor should be exposed to a more significant risk of injury or danger than that to which persons entering or leaving the dance floor are exposed and readily accept.
Although I am satisfied that the evidence establishes that the dance being undertaken at the time at which the plaintiff was injured was most probably more vigorous than that depicted in the video footage I am satisfied that the statement made above has general application. More importantly there is no evidence to suggest otherwise;(vii)Seventh, in circumstances in which the plaintiff, as she approached the dance floor from the rear of the hall, had a clear view of the movement of dancers, she was well placed to:
·choose a path to her table which provided her with access she considered to be safe, taking into account the fact that the dance floor was occupied by dancers; or alternatively
·delay her movement to her table if she thought that the boisterous or unpredictable movement of dancers exposed her to risk of injury; or
·adopt the process in making her way to a table which she would have adopted had she chosen to join into the dance,
each of these factors are relevant to the issue identified by section 14B(4)(f)[37] and tell against the plaintiff’s case.
[37]Wrongs Act 1958
Further, in my opinion a reasonable occupier would have been justified when considering the issue of safety of approaching that analysis on the basis that guests seated at tables 5, 4, 15 and 16, when moving away from those tables, would be in an equally good position to observe the movement of dancers and adopt the above precautions.
(viii)Eighth, whilst it is put on behalf of the plaintiff that the defendant should have erected a sign which prohibited dancers from dancing outside a confined area of the dance floor the boundaries of which had been fixed by lines marked on the dance floor, no evidence was adduced that this was a practice employed in other club or dance venues and common sense would suggest that such a practice would have little effect for the reasons to which I have previously referred as to the relevance of the marking of the boundaries of the dance floor by installing lines on the floor surface (see also my findings in paragraph 45 above which I rely upon in supporting this position.
In the absence of some expert or other relevant evidence on this point, I am not satisfied that I should make a finding that such a practice should have been employed by a reasonable occupier;
(ix)Ninth, as to the position put on behalf of the plaintiff that the defendant should have created a walkway between the tables and walls which they abutted, whilst it was possible to configure the premises in that way had eight or so tables been reduced in size so that they replicated the size of tables 8 and 9, I am not satisfied that the failure of the defendant to do so was in any way unreasonable given the combination of:
·my previous comments as to the ability of persons moving towards or across the dance floor to appreciate what was going on and to choose a course to their tables which effectively hugged the perimeter of the dance floor;
·the history of the operation of the club for many years in which activities no different to those which are being undertaking at the time of the plaintiff’s injury were undertaken in the absence of the occurrence of any injury or incident of the type suffered by the plaintiff.
(x) Tenth, whilst Mr Thompson QC, on behalf of the plaintiff, relied upon the concession made by Mr Konsz as to the possibility of reconfiguring the tables at the club by positioning smaller tables along the walls so as to create access to the rear of the club via that process, I take that concession to be one made with the benefit of hindsight and in reality as involving a concession from a truthful witness as to what could have been done rather than what should have been done in the context of the previous history of the club to which I have referred[38];
(xi) Eleventh, whilst it is put on behalf of the plaintiff that the nature of the unrestrained dancing which was a feature of some of the dances at the club should have motivated the defendant to create a walkway which separated people seeking to gain access to the tables from the dance floor I find that position to lack persuasive force for the following reasons:
·first, there is no evidence that such a practice was the norm or for that matter adopted by or expected of occupiers in the position of the defendant;
·second, in my view it cannot be said that the behaviour of the dancers who are winding their way through some tables in this instance is in reality anything out of the ordinary. It is a matter of common knowledge and experience that be it in Conga Line, a Zorba Dance, an Irish Jig or an Italian Tarantella, that dancers hold hands, move in circles or follow a self-appointed leader and roam the dance floor or its periphery. It follows that I am not satisfied that the behaviour of dancers at the defendant’s club was anything out of the ordinary which should have caused the defendant to adopt a practice other than the norm; and
·third, given the absence of any previous incident or complaint which alerted the defendant to the presence of the potential problem, when combined with the reasons set out my previous analysis, I am not satisfied that a reasonable occupier would have acted in the way contended for on behalf of the plaintiff.
[38]In making that statement I do so taking into account the fact that the defendant has continued to operate the premises on the same basis and floor plan to that which operated of the time of the plaintiff’s injury in the absence of any evidence of the occurrence of a similar injury.
64 I make all the above statements never losing sight of the fact that the consequences of a fall are hard to predict and may very easily involve an incidence of significant injury in the form of a fracture of some type.
Analysis in accordance with the provisions of the Wrongs Act
65 Section 14B(4) of the Wrongs Act provides that the following criteria must be considered when determining whether the duty of care of an occupier has been discharged;
a) the gravity and likelihood of probable injury;
b) the circumstances of the entry onto the premises;
c) the nature of the premises;
d) the knowledge which the occupier has or ought to have of the likelihood of persons 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;
fa) …
fb) … [39]
g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
[39] It is not suggested that the provisions of subparagraphs (fa) or (fb) have any relevance in this instances
66 The analysis and findings undertaken by me above deals in most respects with the various categories required to be considered under the provisions of the Wrongs Act.
67 I am satisfied however that I should make formal findings with respect to each of the above categories which in my view comprehensively deal with the matters required for my consideration in this instance.
68 In doing so I rely on my previous analysis and findings as set out above which should be incorporated where appropriate within my analysis of the specific categories identified by the Act.
(a) the gravity and likelihood of probable injury
69 There can be no issue that the defendant conducted social activities which included dances from its premises on more or less a monthly basis for over 8 years and that no one had suffered injury of a similar type or in similar circumstances to those which gave rise to the plaintiff’s injury.
70 Equally, as I have commented earlier, weight should be accorded to the potential for significant injury in the form of a serious soft tissue injury or a bone fracture associated with an unguarded fall as a result of pushing or tripping incidents associated with unexpected contact between a person walking in the vicinity of the dance floor and a dancer.
(b) the circumstances of entry onto the premises;
71 No real issue of relevance arises as to this point.
(c) the nature of the premises;
72 No real issue of relevance arises to this point.
(d) the knowledge which the occupier has or to have of the likelihood of persons or property being upon the premises
73 There is no issue the defendant conducted a social club and provided alcohol, food and music for the entertainment of people and a place for them to dance. Neither can be any issue that the way in which persons attending a social club conducted themselves while dancing varied from quiet activity to probably fairly exuberant dancing.
(e) the age of the person entering the premises;
74 There is no issue that the plaintiff’s age and life experience enabled her to make decisions as to her own safety and as to any risk of injury to which she was exposed whilst attending the premises.
(f) the ability of the person entering the premises to appreciate the danger; and
75 Clearly the majority of club members and their friends who attended were of an age which enabled them to appreciate dangers which might be present when walking in the vicinity of or across a dance floor whilst people were engaged in dancing. For the reasons to which I have earlier referred, it could not be said that the plaintiff’s injury involved any factor which she could not readily observe or appreciate or which was hidden to her.
(g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
76 I am satisfied that the burden upon the defendant of creating a designated walkway would not have been a significant one. Having made that finding, for the reasons which I have previously referred, I am not satisfied that this finding is such that in failing to provide a designated walkway for the plaintiff, the defendant was in any way negligent or in breach of any relevant duty the subject of the provisions of the Wrongs Act.
Conclusion
77 Given the findings which I have made above I am not satisfied:
a. that a reasonable occupier in the position of the defendant in this instance should have marked the boundaries of the dance floor by applying a series of lines delineating that boundary on the surface of the floor. Even if I am mistaken in making the above finding I am not satisfied that such a marking would have prevented the contact occurring between a dancer and the plaintiff as she made her way to a table across the corner of the dance floor; or
b. that a reasonable occupier would have established an alternate route of access for the plaintiff to her table by creating a walkway between the tables which were located adjacent to the walls of the hall and the wall to which they were adjacent.
78 For the reasons set out above I am not satisfied that the plaintiff has established negligence on the part of the defendant or any breach by the defendant of any relevant obligation imposed by the provisions of the Wrongs Act, and for that reason the plaintiff’s claim must fail.
79 In these circumstances I find it unnecessary to determine the issue of contributory negligence or to assess the damages to which the plaintiff might have been entitled had she succeeded in her cause of action.
80 It follows that I will make an order dismissing the proceeding and all hear the parties upon the issue of costs.
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