VWA v Dracula's Theatre Restaurant Pty Ltd
[2015] VCC 1244
•10 September 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
COMMON LAW DIVISION
GENERAL LIST
Case No. CI-14-00105
| Victorian WorkCover Authority | Plaintiff |
| v | |
| Dracula's Theatre Restaurant Pty Ltd | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10, 13, 14, 16 and 17 July 2015 | |
DATE OF JUDGMENT: | 10 September 2015 | |
CASE MAY BE CITED AS: | VWA v Dracula’s Theatre Restaurant Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1244 | |
REASONS FOR JUDGMENT
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Subject: Accident Compensation
Catchwords: Claim for indemnity against a third party under s.138 of Accident Compensation Act 1985 – worker’s injury to the left knee at a school excursion whilst riding the ‘ghost train’ at defendant’s premises – whether there was negligence on the part of the defendant – occupier’s liability under s.14B(3) of the Wrongs Act 1958 – no breach of duty of care by defendant occupier.
Cases Cited:VWA v Jones Lang Laselle (Vic) Pty Ltd [2012] VSC 412; Central Goldfields
Shire v Hayley [2009] VSCA 101; 24 VR 378; Erickson v Bagley [2015] VSCA 220.
Judgment: The plaintiff’s claim is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Middleton | Russell Kennedy |
| For the Defendant | Mr J Brett | HWL Ebsworth |
HER HONOUR:
The issues
1 On 2 May 2007 Mrs Bernadette Dalton (Mrs Dalton), who was working as a teacher at Holmesglen Institute of TAFE (the employer) was at premises at 100 Victoria Street Carlton occupied by the defendant (Dracula’s Theatre), on a TAFE excursion with a group of TAFE students and two other TAFE teachers. She suffered an injury to her left knee while riding the “ghost train” at the premises. She had an arthroscopy in 2007. After two further incidents of injury to her left knee in 2011 and 2013, she had a further arthroscopy in 2012 and left total knee replacement surgery in late February 2015.
2 The plaintiff (VWA) seeks indemnification from Dracula’s Theatre under section 138(1) of the Accident Compensation Act 1985 (the Act), in respect of compensation paid and future compensation to be paid by the VWA to Mrs Dalton. Section 138(1) of the Act, relevantly, provides that where an injury….for which compensation has been paid, or is or may be payable by VWA…“was caused under circumstances creating a legal liability in a third party to pay damages”, the VWA is entitled to be indemnified.
3 Accordingly, it is for the VWA to show that Mrs Dalton’s injury was sustained due to the negligence of Dracula’s Theatre. To do so, VWA must establish the circumstances of her injury, must identify a breach of the duty of care by Dracula’s Theatre, and must establish that the alleged breach was a cause of Mrs Dalton’s injury.
4 Before me, it was common ground that Dracula’s Theatre was the owner and occupier of the premises and operator of the ghost train and that pursuant to section 14B(3) of the Wrongs Act 1958 Dracula’s Theatre owed Mrs Dalton a duty to take such care as in all the circumstances was reasonable to see that she would not be injured by reason of the state of the premises or things done or omitted to be done in relation to the state of the premises. It was also common ground that Dracula’s Theatre owed a duty at law to Mrs Dalton to take reasonable care to avoid exposing her to unnecessary risk of injury.
5 VWA argued that the risk of injury was not only foreseeable but probable given that patrons on the train were unrestrained and would move about when the train jerked and might come into contact with hard surfaces which were likely to cause injury, in this case, the exposed steel tubing on the inside of the front of the carriage, or the wooden board on the back of the front seat. VWA submitted that the reasonable owner/operator could have provided padding over these hard surfaces at little expense. In addition, VWA submitted that Dracula’s Theatre failed to undertake any risk assessment back in 1992 as required by the Occupational Health and Safety Act 2004 (OHS Act). For these reasons, it was submitted that the failure of the defendant to properly assess the risk of injury to patrons using the train and to provide padding to the hard surfaces of the carriage was a breach of its duty to Mrs Dalton and the cause of her injury. VWA submitted that the entirety of her ongoing left knee complaints are partly or wholly due to the alleged injury at Dracula’s Theatre in 2007.
6 In the event of a finding of notional liability, the VWA submitted that general damages would be in the order of $200,000. In addition, the VWA submitted that gratuitous attendant care should be assessed in the order of $62,400 (on the basis of 5 hours per week at $150 per week over 8 years). Finally, in relation to pecuniary loss, the VWA relied on past loss of earnings in the sum of $57,750 (3 days per week at $1100.00 net per week for 52 weeks) and future loss to February 2016 in the sum of $28,600. The VWA conceded that payments before 10 January 2008 could not be claimed by it.
7 Dracula’s Theatre says, first, that the circumstances of the accident and injury are very unclear, Mrs Dalton’s evidence is vague and/or exaggerated, VWA failed to call a relevant witness, and therefore it is impossible for the Court to determine how she suffered injury. Second, it says that the ghost train was designed, built and maintained with care. Third, it says that while the expert evidence identified a need to place padding over the steel tubing at the front of the carriage, Mrs Dalton’s own evidence does not permit a finding that she struck her left knee on such tubing, whether in the front of the carriage, or at the rear of the front seat. It is critical to note that over 700,000 patrons have ridden the ghost train and there has never been a similar complaint. Moreover, although it was possible for a passenger to strike their knee on the metal bar if they moved forward, the expert evidence was to the effect that, given the four inch gap between Mrs Dalton’s left knee and the surface in front (whether the front of the carriage or the back of the front seat),[1] if a passenger braced themselves with their feet and used the guard rail with their hands, there was no reason why their knee should ever strike the front surface. Fourth, it says that even if there was a risk of contact between a passenger’s knee, and the surface in front of the knee, such contact being a risk of injury is far-fetched and fanciful. This is particularly the case given that there has only been one such injury, on a ghost train which has been used by over 700,000 patrons. Fifth, it says, that even if a breach is found to have occurred, the Court should take into account the contributory negligence of Mrs Dalton in not bracing herself and not using the guard rail.
[1]As measured on the view conducted on 10 July 2015
8 In the event that notional liability is found on its part, Dracula’s Theatre submits that in assessing Factor “X” the Court should take into account what it says is the contributory negligence of the worker, which should be assessed at 50%. In the event that the formula in section 138(3) of the Act is found to be engaged, Dracula’s Theatre says that the evidence has not established that the entirety of Mrs Dalton’s ongoing left knee injury complaints are partly or wholly due to the alleged injury at its premises in 2007. If Mrs Dalton’s contention in this regard is made out, it was submitted that Dracula’s Theatre does not have adequate material to make full submissions on quantum.
9 Finally, it says that neither the OHS Act nor the Equipment (Public Safety) Act 1994 confer a right of action in civil proceedings and the Occupational Health and Safety Regulations 2007 (OHS Regulations) do not apply as they came into force after the occurrence of the subject injury.
The hearing
10 The hearing was conducted before me over 6 days. On 10 July 2015, during the course of the hearing and at the request of the parties, I conducted a view of the ghost train at Dracula’s Theatre, accompanied by the parties, their legal counsel and my Associates. Mrs Dalton sat in the train, and was photographed. The parties agree that the photographs demonstrate that, when seated in the carriage, Mrs Dalton’s left knee is at least 4 inches from the front of the carriage, or when seated in the back seat, from the back of the front seat. I rode in the back seat of the ghost train twice with my Associate sitting beside me, and with counsel in the front seat. One of the rides occurred with the lights set as they would have been when the train operated for patrons – that is, mostly dark except for when passing two installations that were lit up. At those two times, I could clearly see the passenger in the seat beside me, and her legs. The train ride was jerky, mainly laterally. If one sat up straight and held the hand-rail, one did not move forward at all. If one sat a little less straight, as I did once during the ride, and did not hold the guard-rail, it was possible for one to slip forward and for one’s knees to make contact with the back of the seat in front. However, once that contact occurred, it took little effort to straighten up, hold the hand-rail, brace oneself, and avoid further contact between the knee and the seat in front.
11 The parties tendered Court Books and other documents. Viva voce evidence was given by the following people: Mrs Dalton; Mr Paul Newman, the director of Dracula’s Theatre; Mr Nikola Josefski, forensic engineer; Dr Abby Hechtman, Mrs Dalton’s current general practitioner; and Mr Peter Hannon, Mrs Dalton’s treating orthopaedic surgeon in 2007.
Liability – The evidence
Mrs Bernadette Dalton
12 Her evidence may be summarised as follows. From 2003 Mrs Dalton was employed by Holmesglen TAFE to teach students with a range of problems. On 7 May 2007 Mrs Dalton went to Dracula’s Theatre on a school excursion. There were 3 teachers and between 20 and 25 students on the excursion. They met at the venue, and were taken by management to ride the ghost train. There was a rush to get into the carriages. She could not recall whether she rode in the front or back seat of her carriage, which seats four. Nor could she recall whether she sat next to the door or away from the door of the carriage. She sat next to another teacher, Felicity Burton, and there were 2 students with them in the carriage. The carriage took off quickly and before she was seated properly. The ride was very jerky. Her left knee repeatedly banged against the front part of the carriage, but she could not say how many times. She tried to move her left knee but could not recall if she was able to move sideways. She had her hands in front of her, possibly on the hand rail, during the ride. When the ride ended, she was in pain, lifted her trousers and saw that her left knee had begun to swell. She told her colleague, Felicity Burton, that her left knee was very sore. She had to remain at the venue for another 3 or 4 hours to maintain the required ratio of teachers to students.
13 Upon returning to TAFE after the excursion, her left knee was swollen like a football, and she was in a lot of pain. She told someone at work that her knee was too sore to manage the flight of stairs to her class room, and that she was going home. She saw a physiotherapist the next day or so, and had treatment for several weeks. She took over the counter anti-inflammatories and painkillers and the swelling subsided. She returned to work. A few weeks after the incident, she saw her doctor, Dr Davidson, at Southland Medical Centre. He arranged an x-ray and referred her to an orthopaedic surgeon, Mr Peter Hannon. Mr Hannon arranged for an MRI and then recommended left knee arthroscopy, which was performed on 9 November 2007.
14 Mrs Dalton said that after that procedure she returned to full time work but the left knee remained sore every day and she felt it was going to give way. In June 2008, she moved to Parkdale, and changed doctors. She began seeing Dr Peter Campbell at Parkdale Medical Clinic. She saw him mainly in relation to the problems she was having with bullying at work. During this period, she did not recall having any further left knee physiotherapy or consulting Dr Campbell about the left knee until April 2011. However, the left knee continued to be painful and sometimes swollen and she was taking over the counter medication for it.
15 In April 2011 she went to a school camp and was monitoring the separation of the boys and girls at night, which required walking up and down stairs and around the complex. While walking up or down the stairs, she could no longer remember which (although she acknowledged telling Mr Battlay[2] and Mr Gardner[3] that she was going down stairs, and telling Mr Barnes[4] that her left knee gave way when walking up and down stairs), she heard a crunch in her left knee and felt pain. She told another teacher that her knee had “gone again”. Upon returning from the camp, she saw her doctor, who referred her to Mr Andrew McQueen. Mr McQueen performed a further arthroscopy on 8 October 2012. Mrs Dalton was off work for 6 weeks then returned on modified duties in a new position, that of providing resources for teachers, as well doing one on one teaching. These modified duties lasted 49 weeks, and she then had to return to teaching full classes. Her left knee was extremely painful.
[2]Report dated 24 April 2013, (VWA Plaintiff Court Book p. 109).
[3]Report dated 7 February 2015, (Dalton Plaintiff Court Book p. 65).
[4]Report dated 1 April 2015, (Dalton Plaintiff Court Book p. 70).
16 In May 2013 she further injured her left knee by knocking it against a table.
17 She returned to see Mr McQueen in August 2013. He administered a cortisone injection at that time, and then a month later, a Synvisc injection.
18 She took leave of absence without pay for 15 months from October 2013 due to workplace bullying issues and was then offered a redundancy package, which she accepted.
19 In 2014 she obtained employment at Parkdale Secondary College and taught smaller classes for that year. Her left knee was very painful and she was taking Panadol Osteo.
20 In December 2014 she went back to see Mr McQueen, when her left knee swelled up the day after school finished when she was dusting in her house. He ordered an MRI and x-rays and recommended a total left knee replacement. Mrs Dalton sought a second opinion from another orthopaedic surgeon, Mr Matthew Barnes, and he performed the knee replacement surgery on 15 February 2015. Mrs Dalton said her progress has been slow; she is still taking anti-inflammatories and Panadol Osteo; struggles on stairs, and has had physiotherapy, hydrotherapy and does physiotherapy at home. She mainly sits with her left leg elevated. She also takes painkillers prescribed by Mr Barnes’ replacement, Professor Richard Di Steiger, who told her he would hope that she would be fit to return to work within 12 months of the surgery.
21 Mrs Dalton said that prior to May 2007 she never had left knee problems and never sought treatment for her left knee. She has had constant left knee pain and problems since May 2007, which affected her ability to stand for long periods, and affected her social life, her recreational and sporting activities and her ability to do housework. In the year prior to May 2007 she did waterskiing, motorbike riding, kayaking, snorkelling, walking, gardening, took dancing lessons, did all the housework and gave dinner parties. Since the incident on the ghost train, she has tried kayaking with her husband, but does not do any of the other activities mentioned. She has been unable to get down on her knees, does not vacuum or mop or stand at the sink for long periods. Her husband does 5-6 hours of household chores per week that she used to do. She had home help, two hours per fortnight, paid for by the insurer, for some periods, and this will recommence shortly. She needs this help in addition to what her husband does at home. She can no longer stand for more than 15 to 20 minutes.
22 In cross-examination, she agreed that the affidavit she swore in support of her serious injury application[5] made no mention of being rushed onto the ghost train but insisted that the atmosphere when they were getting on the train was rushed. She did not accept that the ghost train travelled very slowly, at less than walking pace. She said she could not recall whether there was a grab rail. She could not recall whether most of the jerkiness was lateral rather than forward and back. She said that she banged her knee almost immediately after the train started moving and felt a significant impact. She could not recall pushing on the grab rail at all, but said she could not stop her knee repeatedly banging on the front of the carriage. She agreed that photographs taken of her on the view showed that when the carriage was stationary the gap between her knee and the front of the carriage was around 4-5 inches. She said that she must have been thrown forward for her left knee to strike the front of the carriage and agreed that, for the knee to keep striking the surface, she must have been unable to prevent that happening repeatedly. She denied making up the knee injury.
[5]Sworn 13 December 2013.
23 Mrs Dalton agreed that she had not submitted invoices to WorkCover for any of the over the counter medication she had taken in respect of the left knee but said she was not aware that she was able to claim this. She denied exaggerating the position in terms of what activities she had done in the year prior to May 2007. She agreed that her affidavit sworn in support of her serious injury application made no mention of any inability to waterski, motorbike or to kayak. She agreed that she had last waterskiied 15 years ago but said that she had been on a motorbike a few times in the year before May 2007 and had also being kayaking in 2006. She denied exaggerating the amount of weight gain attributable to the 2007 left knee incident, although she agreed that she had seen a plastic surgeon in 2005 concerning the possibility of liposuction.
24 She agreed that the clinical notes of the Parkdale Medical Centre contain no references to left knee pain between June 2008 and February 2011, even though she went to that clinic on a number of occasions. She agreed[6] that if the notes did not record any mention of left knee pain, she had not mentioned it, although she also insisted that she had mentioned her left knee pain to Dr Campbell. She said that she may have gone to the doctor for unrelated reasons, or that she had “probably just got used to the ongoing daily pain”[7] but insisted that during this period she was having daily left knee pain.
Mr Paul Newman
[6]Transcript p. 48.
[7]Transcript p. 50.
25 The director of Dracula’s Theatre, Mr Paul Newman, gave evidence to the following effect. He has been there since the theatre restaurant opened in 1980. He opened a similar but larger venue in Queensland in 1985. He designed the Melbourne ghost train as part of a theatrical installation and had it built in Melbourne by a builder. He discussed safety issues with the builder in the factory and after installation of the train, with theatre engineers. He was unable to say that whether those engineers were aware of the existing laws concerning amusement rides or had any training in that regard. He said that since the ghost train has been in operation, nightly checks have been done on the equipment, but agreed that none of the checks performed were formal or were documented. This system had not changed since 2007. He first received notice of Mrs Dalton’s injury some seven and a half years after the incident, but did not then undertake a formal risk assessment, although he said “we got staff to see how to make it safer”. [8] The venue had hosted the TAFE students for a number of years on a voluntary basis, giving them a tour of the facilities, discussing lighting, stage props, makeup etc, and taking them on the ghost train.
[8]Transcript p. 117.
26 The ghost train is upstairs and is used to regulate the entry of patrons into the theatre from the bar area in a steady but slow stream so that patrons can be seated in an orderly fashion. The train comprises three identical carriages, each carrying a maximum of four passengers, which travel at the same speed on a loop so that one is always loading, one travelling, and one unloading. The track length is 34 metres, and the ride takes place at a fixed speed of 2.26 kph, and lasts just under a minute from start to finish. The carriages cannot travel at faster than the set speed, unless the gear boxes in each of the carriages is replaced. He said that the ride is designed so that carriages move from side to side. The carriages travel at the same speed unless one carriage has a fading battery, in which case the carriage will run more slowly. Generally, however, the batteries age at the same rate and are replaced at the same time. It was impossible to rush a carriage or a ride.
27 There was a video showing on a continuous loop in the area where patrons assemble to take the ghost train. The video has not changed since the ghost train began operating in 1992. Among other things, the video instructed passengers to stay in their seats, not stand, and to hold the hand rail. Mr Newman said that the purpose of the hand rail was to “give you something to slide along when you get in”[9] to the carriage, and the instruction to passengers to keep their hands on the rails was designed to deter them from grabbing the props along the ride. He denied that the main purpose of the hand rail was to keep passengers steady when they were being jerked around by the movement of the train, insisting that the passengers are not jerked around such that “it is an issue”. [10]
[9]Transcript p. 121.
[10]Transcript p. 122.
28 Mr Newman could not recall being present at the theatre on the day of the incident. He had inspected the steel tubing in the front of the carriages and the wooden board placed on the back of the front seat of the carriages. He said that it was unlikely but possible that a passenger could move forward on the seat and strike the steel tubing or the wooden board,[11] he also said that a passenger would “have to lean a fair way forward to do that, but to repeatedly strike your knee like that, would be very unlikely”.[12]
[11]Transcript p. 120 (27-31).
[12]Transcript p. 121.
29 The ghost train had operated for 18 years, has been used by 34,000 patrons per year, and there has never been a complaint concerning its operation. It has not altered in its configuration, although the padding and vinyl are replaced from time to time and the front of the trains have been freshly painted.
Mr Nikola Josefski
30 Mr Nikola Josefski, forensic engineer, provided an expert report dated 18 June 2015. He adopted the report at the hearing. He made a number of observations in his report, including: that there were three separate carriages on the ghost train ride; there was no padding in the carriages apart from padding on the seats and the backrest; there was welded square steel tubing which made up the majority of the frame; when seated, the steel tubing, which has sharp 90 degree corners, was at the same height as the knees; and the seats have vertical cladding beneath them so that once seated, the feet cannot be placed at any point behind the seat; and during the ride, parts of the body may come into contact with the square tubing.
31 Other than the padding on the seat and backrest, there was no other padding on the inside of the carriage at the time of the subject incident nor at the time of inspection. Had adequate padding been added to the carriages, the probability of the subject incident occurring and thus the probability of injury to Mrs Dalton, would have been significantly reduced or even eliminated.
32 Dracula’s Theatre failed to undertake a risk assessment of the carriages which, had it been undertaken, would have revealed the obvious hazards associated with sharp square steel edges inside the carriages, which could have been averted with the addition of padding. Adequate maintenance and inspections would have revealed this risk.
33 In cross-examination, Mr Josefski said that he had not measured the height of Mrs Dalton’s left knee, when seated in the carriage. He accepted that the steel tubing is slightly lower than knee height. Even on the back of the front seat, where the steel tube is covered by a wooden board, the board has a hard edge. He agreed that since Mrs Dalton was unable to say whether she had been seated in the front or the back of a carriage, it was not known what her left knee had struck. He agreed that, as a thrill ride, the ghost train ride was bound to be jerky but said that most of the forces were lateral. He agreed that there was a small chance of a passenger being thrown forward during the ride. If Mrs Dalton was sitting in the front of the carriage and was thrown forward, her knee might strike the steel tubing. If she was sitting in the back of the carriage, her knee might strike the wooden board covering the steel tubing. He agreed that the video instructed passengers to hold the guardrail, and that patrons could also brace themselves using their feet.
34 He also agreed with the following proposition by Mr Brett[13]:
…given the relatively gentle motion of the train with some jerkiness but that jerkiness is lateral rather than forward and backward and given the guard rail and given the capacity to brace yourself with your feet and given the gap of about 4 inches between the front of your knee and the surface in front, there is no reason why your knee should ever strike the front surface.
[13]Transcript p. 98.
Findings and reasons
35 I make a number of preliminary observations. The VWA cannot rely on the OHS Act because section 34 of that Act provides that the relevant portions of the OHS Act do not confer a right of action in civil proceedings. Secondly, the VWA cannot rely on the OHS Regulations, as these came into force on 19 June 2007, subsequent to the occurrence of the subject injury. Thirdly, by reason of section 11 of the Equipment (Public Safety) Act, that Act does not confer a right of action in civil proceedings. Fourthly, the Wrongs Act provisions concerning occupier’s liability redefine the common law duty owed by an occupier of premises, setting out matters to be taken into account in determining the scope of the duty and whether the duty has or has not been discharged in a particular case.[14]
[14]VWA v Jones Lang Laselle (Vic) Pty Ltd [2012] VSC 412 per Beech J at [5]; see also Central Goldfields Shire v Hayley [2009] VSCA 101; 24 VR 378 at [4]-[6]
36 Mrs Dalton completed a Hazard & Injury Report[15] for her employer on 24 July 2007 which described the incident as follows:
Student excursion to Dracula’s Theatre Rest. Staff and students collected/alighted ghost train for 3 minute journey. Seating was very cramped. My knees hit the seat in front of mine repeatedly as it was a jerky ride. My knee swelled immediately and I was in pain.
[15]Report dated 24 July 2007 (Dalton Plaintiff Court Book p. 135). Also referred to in Mrs Dalton’s Affidavit in Support of Serious Injury Application sworn 13 December 2013.
37 In addition, Mrs Dalton had treatment for the immediate sequelae of that incident from a physiotherapist, by way of medication, and then by arthroscopy at the hands of Mr Hannon.
38 In spite of the vagueness of her evidence before me as to the circumstances of the injury, including her inability to recall where she was sitting, how she was sitting, whether there was a grab rail, whether she used it, or what her left knee struck, as well as the VWA’s failure to call her colleague, Felicity Burton, who was present in the carriage with her, I accept, for the purposes of determining the question of liability, that Mrs Dalton suffered an injury to her left knee on that day while riding the ghost train. I am uncertain, having regard to the state of the evidence, whether she struck her knee once, or repeatedly, and whether she did so against the steel tubing (if seated in the front seat of the carriage) or against the wooden board covering the steel tubing on the back of the front seat (if seated in the back seat of the carriage).
39 VWA says that the entirety of Mrs Dalton’s ongoing left knee complaints since 2007, including her need for total left knee replacement surgery in early 2015, are partly or wholly due to the alleged injury at Dracula’s Theatre in 2007. It is not necessary for me to determine this question in order to decide the issue of liability.
40 The duty owed by Dracula’s Theatre to Mrs Dalton was to take reasonable care to ensure that she did not suffer injury by reason of the state of the premises or anything done, or not done, in relation to the state of the premises. The duty did not extend to preventing injury per se. The standard required of Dracula’s Theatre is that of reasonable care.
41 A defendant is not liable to a plaintiff for not taking precautions against a risk of injury unless the risk was foreseeable. Secondly, no liability will flow to a defendant where the risk that injury will eventuate is insignificant. A risk which is far-fetched or fanciful is an example of a risk which is insignificant. Thirdly, a defendant is not liable unless a reasonable person in the defendant’s position would have taken those precautions. In deciding this last matter, I am required to take into account all relevant circumstances, including the matters set out in section 14B(4) of the Wrongs Act 1958. I must balance the probability that the harm would occur if care was not taken, the likely seriousness of the harm, and the burden of taking precautions to avoid the risk of harm.
42 I am not satisfied that there has been a breach by Dracula’s Theatre of the duty owed by it to Mrs Dalton, for a number of reasons.
43 First, I am satisfied on the evidence that Dracula’s Theatre took reasonable care in the construction, maintenance and operation of the ghost train. Concern for safety was reflected in the need to prepare and show a safety video.
44 I turn to the question of foreseeability. In this case, the precise mechanism of injury is uncertain, that is, whether Mrs Dalton was seated in the front of the carriage and struck (once) or repeatedly struck her knee against the steel tubing about 4-5 inches away from her knees, or was seated in the back seat and struck (once) or repeatedly struck her knee against the wooden board behind the front seat. The pleadings do not characterise the risk. However, I assume for the purposes of this judgement that it is appropriately characterised as the risk of repeated striking of the knee against either of these surfaces causing injury to the knee or, more generally, the risk of striking one’s knee at all against either of these surfaces in the carriage and thereby suffering a knee injury. However, nothing turns on which characterisation of the risk I adopt in light of my findings below. The question is therefore whether the risk (on either characterisation) was a risk of which Dracula’s Theatre ought to have known. That question is to be determined objectively, taking into account the particular facts and circumstances subjective to Dracula’s Theatre. Similarly, the issues as to whether such a risk was not insignificant, and whether a reasonable person in the position of Dracula’s Theatre would have taken the precautions alleged by VWA, are to be determined objectively, again taking into account the particular subjective position of Dracula’s Theatre.
45 I note the evidence of Mr Newman and Mr Josevski to the effect that any contact between a passenger’s knee and the front of a carriage or the back of the front seat, during a ride on the train, was very unlikely. I note the evidence of Mr Newman that the ghost train has been used by over 700,000 patrons since 1992 without any injury being reported, apart from that of Mrs Dalton. Given the extreme rarity of such an injury, I consider that the risk of such contact between a passenger’s knee and the front seat and of such contact being a risk of injury, as being “far-fetched and fanciful” and therefore not reasonably foreseeable.[16]
[16]Erickson v Bagley [2015] VSCA 220 at [45].
46 In any event, having regard to the evidence concerning the gap of some inches between Mrs Dalton’s knees and the back of the front seat or the front of the carriage, and the evidence of Mr Newman concerning the safety video which ran continuously at the entrance to the ghost train, directing patrons to remain seated in the train and to hold the handrail, I consider that a reasonable occupier, looking objectively at the risk with respect to the inside surface of the carriage and patrons’ knees, would have expected Mrs Dalton to sit up in the carriage, hold the handrail and to brace herself when the train was in motion. Given Mrs Dalton’s assertion of repeated striking of the knee against a surface in front of her, I consider that a reasonable occupier would have expected her, after the first painful contact between her left knee and the surface in front of her, to brace herself effectively so as to avoid further contact between her left knee and that surface.
47 I consider it a matter of common sense that a passenger seated in a position which results in painful striking of the knee against a surface would immediately adjust their position to avoid such further painful contact between the knee and that surface.
48 I am therefore not satisfied on the evidence before me that the risk of injury in this case was foreseeable.
49 I turn briefly to consideration of the relevant matters set out in section 14B(4) of the Wrongs Act 1958.
50 As to paragraph (a), the gravity and likelihood of probable injury, given the small gap between passengers’ knees and the front of the carriage or the back of the front seat, I would conclude that a passenger might strike his or her knee against those surfaces. However, I also conclude, in the light of the use of the train by over 700,000 patrons from 1992 to the present, that the risk is a minute one. The ghost train began operating in 1992, and has been used by approximately 34,000 patrons per year. There had never, prior to the proceeding issued by Mrs Dalton, been a complaint of injury at all, by a ghost train passenger. I do not consider that there was a foreseeable risk of injury by reason of the set-up of the seats. If there was such a risk, in the light of absence of complaint of injury by any other passenger in the ghost train’s history, I consider that the probability of its occurrence should be regarded as extremely low.
51 As to paragraph (b), the circumstances of the entry onto the premises, Mrs Dalton rode the ghost train at the invitation of Dracula’s, as did thousands of others regularly, for years before and after she suffered injury.
52 As to paragraph (c), the nature of the premises, since 1992 the ghost train was used as part of the theatre’s operations to transport patrons in small numbers from the bar area of the foyer to the inside of the theatre. The ghost train had been designed for that purpose.
53 As to paragraph (d), the knowledge which the occupier had or ought to have of the likelihood of persons being on the premises, it is clear that Dracula’s Theatre knew that nearly all of its patrons accessed the theatre via the ghost train.
54 As to paragraph (e), Mrs Dalton was neither old and infirm, as would make the exercise of ordinary care by Dracula’s Theatre insufficient to protect her; nor so young as to be incapable of taking reasonable care for her own safety.
55 As to paragraph (f), the ability of the person entering the premises to appreciate “the danger” posed by the state of the premises which it is claimed gave rise to the risk of injury, in this case, the state of the carriage, in particular the surface of the inside of the front of the carriage or the surface of the back of the front seat of the carriage. It was not suggested that Mrs Dalton was unaware of the set up of the carriage in this regard.
56 Finally, neither of the circumstances set out in paragraphs (fa) and (fb) of section 14B(4) were present in this case.
57 I turn to paragraph (g), the expense, difficulty and inconvenience of taking alleviating action. I note that Mr Josevski identified a need to place padding over the steel tubing at the front of the carriage. However, Mrs Dalton’s evidence was that she did not know whether she sat in the front of the carriage or in the back seat. It is only in the front seat of the carriage that a passenger’s knees would face, at an interval of some inches, exposed steel tubing. In the back seat, a passenger’s knees would, if they moved forward a number of inches, come into contact with a wooden board which covered the steel tubing. In this case, I am unable to make a finding as to what it what was that Mrs Dalton’s left knee struck. There is no evidence before me to suggest that the insertion of padding on the inside front of the carriage would have prevented the injury to her.
58 Given the long history of use of the premises, without (there being evidence of) any complaints of knee injuries or any other injuries by patrons of the ghost train, I am not satisfied that Dracula’s Theatre breached the duty of care which it owed to Mrs Dalton.
59 For this reason, it is unnecessary for me to proceed to determine the question of damages. I also note that Dracula’s Theatre submitted it did not have sufficient material to make full submissions on the question of quantum, particularly Factor “A”. It is therefore not necessary for me to canvass the extensive medical opinions in this regard.
Conclusion
60 I propose to dismiss the VWA’s claim, but to grant the parties liberty to apply in the event that further findings of fact are sought. I reserve the question of costs.
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