Wolfenden v International Theme Park Pty Ltd - [2008] NSWCA 78

New South Wales

Court of Appeal

CITATION: Wolfenden v International Theme Park Pty Ltd (trading as Wonderland) & Anor [2008] NSWCA 78

HEARING DATE(S): 9 April 2008

JUDGMENT DATE:
2 May 2008

JUDGMENT OF: Giles JA at 1; Hodgson JA at 43; Windeyer J at 55

DECISION: Appeal dismissed with costs.

CATCHWORDS: Negligence - causation - dancer fell and was injured - tape marking boundaries of dance area - if foot was on tape could have caused fall - no direct evidence that foot was on tape - whether evidence enabled finding that it was - by majority, fall from slipping on tape not shown to be more probable than fall otherwise occurring.

CATEGORY: Principal judgment

CASES CITED: Bradshaw v McEwens Pty Ltd (HC, 1951, unreported);
Luxton v Vines (1952) 85 CLR 352;
Nevin v B & R Enclosures Pty Ltd [2004] NSWCA 339;
Palmer v Clarke (1989) 19 NSWLR 158.

PARTIES: Simone Wolfenden - Appellant
International Theme Park Pty Ltd (trading as Wonderland) - First Respondent
The Trustees of the Roman Catholic Church for the Diocese of Parramatta - Second Respondent

FILE NUMBER(S): CA 40243/07

COUNSEL: A S Morrison SC & W B Nicholson - Appellant
N J Polin - First Respondent
J E Keesing - Second Respondent

SOLICITORS: Owen Hodge Lawyers, Hurstville - Appellant
DLA Phillips Fox - First Respondent
Makinson & d'Apice - Second Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 5320/04

LOWER COURT JUDICIAL OFFICER: O'Connor DCJ

LOWER COURT DATE OF DECISION: 28 March 2007

CA 40243/07
Dc 5320/04

GILES JA
HODGSON JA
WINDEYER J
Friday 2 May 2008

WOLFENDEN v INTERNATIONAL THEME PARK PTY LTD & ANOR

Judgment

1 GILES JA: The appellant was a year 10 student at a school conducted by the Roman Catholic Church at Westmead. She was a keen dance student, and had been attending dance school for some years. On 25 October 2003, when she had just turned 16, she was performing a dance piece with other students from her school, during a “Performing Arts Challenge” in which a number of secondary schools participated, at the first respondent’s premises at the Wonderland Theme Park in Western Sydney. During the dance piece she fell and suffered an injury to her left knee.

2 The first respondent operated the theme park and ran the Performing Arts Challenge, and the second respondent was responsible for the conduct of the school. The appellant was unsuccessful in proceedings brought against the respondents in the District Court. The learned trial judge accepted that the conditions under which she was performing were unsatisfactory, but held that the appellant failed on causation.

3 This Court has on a number of occasions pointed out that it is desirable for a trial judge who decides against the plaintiff on liability nonetheless to proceed to assess damages, against the possibility of a successful appeal. It is sufficient to repeat from the reasons of Tobias JA, with whom Sheller and Beazley JJA agreed, in

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWCA 78
Decision Date: 2 May 2008

CaseChat Overview and Summary

In *Wolfenden v International Theme Park Pty Ltd*, the plaintiff, a dancer, appealed to the Court of Appeal of New South Wales against a decision that dismissed her claim for damages for injuries sustained during a performance. The plaintiff alleged that her fall, which caused her injuries, was due to her foot coming into contact with a tape marking the boundary of the dance area.

The central legal issue before the Court of Appeal was whether the plaintiff had established, on the balance of probabilities, that her fall was caused by her foot being on the tape. There was no direct evidence that her foot had indeed been on the tape at the moment of the fall.

By majority, the Court of Appeal held that the evidence did not demonstrate that the fall from slipping on the tape was more probable than a fall occurring for other reasons. The court applied the principles of causation in negligence, requiring the plaintiff to prove that the defendant's breach of duty was a necessary condition for the occurrence of the injury. Without sufficient evidence to establish that the tape was the cause of the fall, the plaintiff failed to discharge this onus.

The appeal was accordingly dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Wolfenden v International Theme Park Pty Ltd (trading as Wonderland) & Anor [2008] NSWCA 78
HEARING DATE(S):	9 April 2008
JUDGMENT DATE:	2 May 2008
JUDGMENT OF:	Giles JA at 1; Hodgson JA at 43; Windeyer J at 55
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	Negligence - causation - dancer fell and was injured - tape marking boundaries of dance area - if foot was on tape could have caused fall - no direct evidence that foot was on tape - whether evidence enabled finding that it was - by majority, fall from slipping on tape not shown to be more probable than fall otherwise occurring.
CATEGORY:	Principal judgment
CASES CITED:	Bradshaw v McEwens Pty Ltd (HC, 1951, unreported); Luxton v Vines (1952) 85 CLR 352; Nevin v B & R Enclosures Pty Ltd [2004] NSWCA 339; Palmer v Clarke (1989) 19 NSWLR 158.
PARTIES:	Simone Wolfenden - Appellant International Theme Park Pty Ltd (trading as Wonderland) - First Respondent The Trustees of the Roman Catholic Church for the Diocese of Parramatta - Second Respondent
FILE NUMBER(S):	CA 40243/07
COUNSEL:	A S Morrison SC & W B Nicholson - Appellant N J Polin - First Respondent J E Keesing - Second Respondent
SOLICITORS:	Owen Hodge Lawyers, Hurstville - Appellant DLA Phillips Fox - First Respondent Makinson & d'Apice - Second Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 5320/04
LOWER COURT JUDICIAL OFFICER:	O'Connor DCJ
LOWER COURT DATE OF DECISION:	28 March 2007