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 Nevin v B & R Enclosures Pty Ltd [2004] NSWCA 339 -

“74 Although it can be put no higher than a rule of convenience, it is generally (although not invariably) the practice of judges both of this Court and the District Court who propose to find for the defendant in personal injury cases to assess damages in order to avoid the cost and expense, as well as the inconvenience in the taking up of valuable court time and resources, of a new trial limited to the issue of damages should there be a successful appeal on the issue of liability. That such a course has been encouraged by this court is evidenced by the following observation of Hutley AP, with whom Glass and Samuels JJA agreed, in Lawrence v The Nominal Defendant BC 8400320, 2 July 1984 (unreported):


‘I would merely like to say one other thing: if the appeal had been allowed, this Court would have had to order a new trial in a case where the damages in any event must be small by current standards. It is unfortunate, therefore, that the trial judge, while dismissing the case, had not gone on to assess damages as, if his decision on due enquiry and search had been wrong, it would have saved the necessity of re-litigating the matter.’

See also, Di Pietro v Hamilton BC 9002048, 6 September 1990 (unreported) per Kirby P and Handley JA.

75 In my opinion, where the issue of damages in personal injury cases has been fully litigated, and there is at least a reasonable possibility that the trial judge's decision on liability in favour of a defendant may be overturned on appeal, it is both just and convenient that the trial judge should proceed to assess damages to guard against the eventuality of a successful appeal. New trials limited to damages should if at all possible, be avoided by the trial judge taking this course even though he or she proposes to find in favour of the defendant on liability. In this way, the inevitable and ever increasing cost and expense of re-litigating the issue of damages, as well as any waste of the court's time and resources, can be avoided. It is regrettable that the primary judge did not see fit to take that course in the present case.”

4 Damages were fully litigated before the trial judge, and it was not a case where the possibility of a successful appeal could be put aside. The trial judge did not proceed to a contingent assessment of damages. If the appeal is upheld, a new trial as to damages will be necessary; this situation should not have been allowed to occur.

5 Further, while his Honour recorded that duties of care were not in dispute and “there was no real dispute that if the Plaintiff’s fall was caused by the unsafe condition of the dance floor then both Defendants would be in breach of their duty”, he did not make findings as to breach of duty. Findings were at the least appropriate as between the appellant and the respondents notwithstanding any lack of real dispute, and were necessary as between the respondents because there were cross-claims between them for which their respective breaches of duty had to be evaluated. As a result, while the appellant submitted that there should be a verdict in her favour if the appeal was upheld, the respondents submitted that the new trial should be on liability as well as for assessment of damages. The regard to justice and convenience to which Tobias JA referred in Nevin v B & R Enclosures Pty Ltd equally applies.

6 It is appropriate to remind that it is in the interests of the parties, in avoiding expense and delay in establishing their rights and obligations, and in the interests of the administration of justice, in efficient use of the public resource of court time and judicial decision-making, that trial judges should generally make all appropriate findings material to liability and proceed to assessment of damages, even if finding against the plaintiff on a limited basis. That is not, of course, something which should invariably be done. It must depend on the circumstances, but having well in mind the description of a new trial as “an evil and a deplorable result, to be avoided wherever possible”: per Kirby P in Palmer v Clarke (1989) 19 NSWLR 158 at 164 and cases cited.

The appellant’s fall

7 The appellant’s dance group performed their first piece on a raised stage with an area of “astro turf” matting in front of and below the stage. The matting covered a concrete slab. From the programme for the Performing Arts Challenge, the dance group from the appellant’s school was one of five schools to perform in that segment of the event.

8 The next segment of the event was jazz dance. From the programme, sixteen schools were to perform dance pieces, the appellant’s school being the eighth.

9 Prior to the dance piece of the appellant’s group it began to rain fairly hard. The stage was open to the elements, and became wet, and the performances were moved to the matting in front of the stage. Black electrical tape was used to mark out an area on the matting as the area within which the dance pieces were to be performed.

10 The appellant was asked whether she could give “some idea of the size of the taped area”. She answered “Not exactly. Maybe four metres long and probably two to three metres deep”.

11 This qualified estimate was understandably not accurate. Experts whose reports were tendered went to the theme park in April 2004, where they inspected the matting and took measurements of coefficients of friction. There was not clear direct evidence that the matting and black tape were as they had been on 25 October 2003, but the appellant was shown a photograph and appeared to accept that they were save that on 25 October 2003 the matting “was stretched out and taped a bit better than that”. The trial plainly enough was conducted on that basis. One of the experts measured the matting, which was 12.8 metres by 5.6 metres, and said that the “floor area” after deducting one metre from each side of the matting was “similar to that of the stage floor originally intended to be used”. In context, and with regard to the photographs showing that the matting extended by about a metre on each side of the stage, he meant the area marked out by the black tape.

12 That is consistent with the appellant’s evidence that “probably about two thirds” of the matting was marked out by the black tape, and it makes sense that the organisers would have marked out an area corresponding to the size of the stage for the performances not on the stage, in order to maintain equality between the dance groups. The size of the taped area is not critical to the outcome, but its length (meaning width) must have been more like eight to ten metres and its depth must have been more like four metres.

13 Although the matting had some protection from a shade shelter, water from continuing moderate rain ran off the top of the shade shelter onto the back of the matting. The water spread over its entire area.

14 Shortly before they were to perform their piece the appellant’s dance group was told by their school dance teacher, Ms Tabatha Jonczyk, that they were to perform on the matting. From the appellant referring as to time to “probably the school before us”, the dance group performing before the appellant’s dance group may have been the first to perform on the matting. Ms Jonczyk told the appellant’s dance group that she had been told that the area was still safe to dance on but they had to remain within the black taped area.

15 The dance group was called on, and the MC repeated that they had to stay within the black taped area and said to be careful as the area was wet. The dancers took up their positions on the matting. The appellant was at the left end of the line of dancers, as seen by the dancers.

16 Shortly into the dance piece, as the appellant performed a high kick, she slipped and fell. The appellant’s description of her fall in her evidence in chief was -

“A. As we began the dance, I was in the first chorus, which was into a minute of the performance. As I was performing a high kick, I slipped. I landed with my leg bent underneath me, and as I went down I felt a really excruciating pain in my knee. I fell down. I looked at my teacher and mouthed to her that I would not be able to get back up. She came and assisted me off the stage as the dance routine was still going. There was still three minutes of dancing left. I was assisted to a seat next to the stage.”

17 This description was not taken further in the cross-examination, which was largely devoted to the continuing effect of the appellant’s injury. She gave a more full description to the expert qualified on her behalf, Mr Neil Adams, but objection was taken to the “assumptions” on which he expressed his opinions unless proved by other evidence and it was common ground that the more full description in his report did not stand as evidence of how the appellant came to fall. The expert qualified on behalf of the first respondent, Dr John Cooke, repeated in one of his reports the description as recorded by Mr Adams, as part of responding to Mr Adams’ opinions. Dr Cooke’s reports were tendered and admitted without comment. Despite the appellant’s rather faint suggestion to the contrary, in the conduct of the trial the common ground must have extended to the description as so repeated.

18 In a first aid incident report signed by the appellant the description of the fall, written by the nurse from the appellant’s explanation of how she fell, was -

“Going to do a kick, during act and felt knee move inwards and everything move and then collapsed. On an unsuitable surface for dancing (? Added by teacher). RB”

19 The parenthesis is unclear. The nurse, from the signature to the report with the initials RB, appears to have written the first sentence from the appellant’s explanation and added the second sentence as a result of something said by Ms Jonczyk.

20 The appellant was taken to Westmead Hospital. The Emergency Department Clinical Report includes -

“dancing in performance @ Wonderland had R leg out in air & fell on out turned, flexed L knee (full [indecipherable] body)”

The expert evidence

21 The experts agreed that the matting presented a low risk of slipping, even when wet. Both experts examined the matting on the same day, using the same methodology to test the co-efficient of friction of the surface when water was applied. They arrived at similar results, and concluded that the matting was slip resistant notwithstanding that it was wet and complied as to slip resistance with the standard for normal pedestrian movement. The judge found that the matting, although wet, “was unlikely to be implicated in the Plaintiff’s fall having regard to the co-efficient of friction obtained on testing”.

22 The experts also tested the slip resistance of the black tape when wet. They obtained rather different results. The co-efficient of friction found by Mr Adams was inadequate for normal pedestrian movement in accordance with the standard. That found by Dr Cooke complied with the standard. However, the judge attributed Dr Cooke’s reading to the testing device traversing part of the matting, and recorded that Dr Cooke agreed with Mr Adams that the difference in slip resistances between the matting and the black tape posed a potential slipping hazard in that such a difference could initiate a slip.

23 The trial judge accepted that “if the plaintiff placed her foot up on the black tape, this may well have initiated a slip and subsequent fall”, either as a result of the low co-efficient of friction found by Mr Adams or because of the different slip resistances of the matting and the black tape.

24 The experts plainly considered that the high kick undertaken by the appellant involved risks beyond normal pedestrian movement. Mr Adams referred to it as a vigorous step, and opined that the surface provided insufficient levels of friction contact to prevent slipping although attributing the fall more to the black tape when wet or the differential levels of friction contact than to the matting itself. The annexures to Mr Adams’ report included the “Safe Dance II Report 1997”, which stated that accidental falls accounted for 12 per cent of dancers’ injuries. One of Dr Cooke’s reports included that the appellant “was executing a series of dance moves requiring agility and very good balance” and that “she was inherently at some risk of falling”, another than “[t]here is an inherent risk of slipping or tripping when dancing, or accident caused by the reaction of the body to dance moves”. Whether these were assumptions or within the experts’ expertise may be questionable, but in my opinion it can be accepted that a dancer executing a high kick is at risk of a fall, if the execution goes awry, even on a suitable surface.

Did the appellant slip on the black tape?

25 The appellant failed on causation because there was no direct evidence that she slipped on the black tape and the trial judge declined to infer that she did so. That was the issue debated on appeal.

26 The trial judge said -

“67 Dr Morrison SC submitted that when one looks at the whole of the evidence namely that she was at the end of the line in a space which her teacher regarded as inadequate area, where there were pools of water in the vicinity of the tape, an inference ought be drawn that she in fact stepped on the tape which caused her to fall.
68 Regrettably I am unable to draw that inference. The Plaintiff, would be the best person to be able to describe what it was that caused her fall. In her frank concession in evidence in chief, she was unable to say what it was that caused her to fall or where she was in relation to the black tape. There is no reference in the earlier documentation to suggest that the black tape was in any way implicated. The directions were that the dancers were to perform within the taped area and as submitted there was no evidence that she had difficulty complying with this request. Ms Jonszyk’s statement that the Plaintiff was close to the electrical tape to my mind does not permit me to draw an inference that it was the cause of her fall.”

27 The appellant did not clearly submit that there was causation because the matting was unsuitable for the dancing, in the size of the taped off area and the wetness of the matting, and so the first respondent should have called the Performing Arts Challenge off entirely or Ms Jonczyk should have refused to let her students perform, with the result that the appellant would not have been exposed at all to the risk of slipping on the black tape. So far as she did so submit, neither over-crowding of the dancers nor wetness of the matting (apart from the black tape) was shown to have a causal relationship with the appellant’s fall, and it remained necessary in order that causation be established that she fell because she placed her foot on the black tape.

28 In her evidence in chief the appellant was asked where she was “in relation to the taped lines” at the time she fell. She answered, “Not entirely sure”. She was asked whether she knew where she was in relation to the taped line when she was on the ground after falling, and answered that she did not know.

29 After the appellant fell, Ms Jonczyk came to her aid. A letter from Ms Jonczyk to the first respondent was in evidence. It did not describe the appellant’s fall, but the appellant relied heavily on Ms Jonczyk’s complaint -

“Wonderland and the organisers also failed to take into account that they were dealing with adolescents between the ages of 13 to 17 with a limited ability to adjust to the conditions on that day. Announcements such as ‘students are reminded to dance in the last two panels for their own safety’ are aimed at adults or professional performers who have the capability to take personal responsibility for their own safety. The designated area in which the students are required to dance had numerous and significant puddles of water which are an obvious cause for injury. As a result one of my students received a serious injury to her knee after slipping on the slippery/wet surface . In addition, more consideration should have been given to obtaining a better match between the size of the designated space for the performance and the number of performers. For example, it was not possible for the 21 students from my school to perform safely in the space that was big enough only for about 6-8 dancers. To place the adolescent performers in a ‘risky’ situation because the organiser of the event had not been prepared for wet weather seems to be an err [sic] in judgment on her part. From my point of view, the students’ welfare and safety should have been Wonderland’s and the organiser’s first and main concern.” (emphasis added)

30 A statement made by Ms Jonczyk, in evidence against the second respondent only, included -

“8. I recall that Simone was directed to dance at the area where it bordered very closely with the black tape to the left front area of the stage, which is marked with an ‘X’ on the attached photograph of the stage. Simone fell during the jazz dance performance.
9. When Simone fell I attended to her immediately and noticed there was a lot of water pooling on and near the area where she had danced. It was the area that was designated to her for dance.”

31 The attached photograph did not show where there was black tape. The “X” was towards the front left side (as seen by the dancers) of the matting.

32 The appellant’s dance group at the time of her fall had 15 members, not 21. Ms Jonczyk’s expressed opinion that the space was only big enough for 6 to 8 dancers might be difficult to accept in the light of the evidence as a whole, but there was no evidence from which it could be found that overcrowding contributed to the appellant’s fall in any way other than that the number of dancers and the size of the taped off area may have meant that she was dancing in the vicinity of the black tape.

33 None of the other dancers in the appellant’s dance piece gave evidence, nor did anyone else who might have witnessed the fall. A statement of one of the dancers, Ms Rebecca Squires, was tendered. She said, amongst other things, that the “newly proposed area was … rather small for twenty dancers”, but she did not see the appellant’s fall or say anything about the black tape.

34 The appellant submitted, relying in particular on Ms Jonczyk’s letter from which I have set out an extract, that Ms Jonczyk had attributed the appellant’s injury to the “slippery/wet surface” on which the dancers were performing, and that that was enough to establish causation. I do not think that is correct. There was no direct evidence that Ms Jonczyk saw the appellant’s fall. The closest evidence was that the appellant “mouthed to [Ms Jonczyk] that I would not be able to get back up” and Ms Jonczyk came and assisted her. Ms Jonczyk was no doubt closely watching her students’ performance, and must have seen the appellant after her fall. But she was not necessarily watching the appellant in particular so that she saw how the appellant came to fall. She attributed the injury to slipping on a wet surface, plainly enough meaning the surface of the matting as a whole, but the expert evidence was regarded as exonerating the matting and took away the foundation for the causation as perceived by her. She said nothing about the black tape as a particular factor in the appellant’s fall.

35 In the statement admitted only against the second respondent Ms Jonczyk does refer to the black tape, but as a matter of placement rather than causal significance to the fall; the subsequent reference to noticing water suggests that again Ms Jonczyk saw the wet surface of the matting as a whole as the operative “obvious cause for injury”.

36 The question was that addressed by the trial judge, whether it could be inferred that the appellant stepped on the black tape and thereby fell. Answering the question should be on the approach described in Bradshaw v McEwens Pty Ltd (HC, 1951, unreported), as repeated by Dixon, Fullager and Kitto JJ in Luxton v Vines (1952) 85 CLR 352 at 358 -

“In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co. Ltd. v. Astley (1911) AC 674, at p 687. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf. per Lord Loreburn [(1911) AC, at p 678"].

37 In favour of the inference are the following.

(a) The appellant must have been dancing in the vicinity of the black tape. As against the second respondent, that could be found from Ms Jonczyk’s statement. Apart from that, the dancer at the end of a line of fifteen dancers in a taped-off area some eight to ten metres in width, when there was evidence that the area was rather small for twenty dancers quite apart from Ms Jonczyk’s more extreme opinion in the letter, would have been in the vicinity of the tape marking the extremity of the area.

(b) There was no suggestion that the appellant was not a proficient dancer. Albeit speaking of her in 2005-6, a subsequent dance teacher said that she had good technique, moved well and was well-coordinated.

(c) The respondents disclaimed any case in contributory negligence that the appellant was “negligent in the way she was dancing”.

(d) The appellant said “I slipped”. A slip often means slipperiness. The matting was not slippery, but the black tape was.

(e) In her letter Ms Jonczyk attributed the injury to the conditions underfoot. At least as the impression of a dance teacher, and notwithstanding that she did not link it with the black tape, the fall was not said to be something that happened because the appellant was doing a high kick and may not have executed it properly.

(f) The adequacy of the matting, as distinct from the black tape, was known from the exchange of experts reports, but the respondents did not suggest to the appellant in cross-examination that her fall was something that happens when doing a high kick. They left as the only available reason for the appellants fall, its availability known from the experts reports, that she slipped on or because of the black tape.

38 In response, and against the inference, are the following.

(a) The appellant gave evidence that on a stage she had a consciousness of where the perimeter was. Notwithstanding that she was not on a stage, the dance group had been told to stay within the black taped area and as an experienced dancer she would have had a consciousness of that perimeter and been able to say that her dancing placed her where she would step on the black tape; but she did not.

(b) Saying she slipped did not necessarily mean slipperiness. The word often describes a loss of footing. In the explanation given to the nurse and in the clinical notes there was no reference to slipping; the descriptions there given were more of a dance move which went wrong.

(c) Even after her fall the appellant could not say where she was in relation to the black tape, as might be expected if she thought her dancing had caused her to put her foot on it.

(d) Neither when Ms Jonczyk came to the appellant’s aid nor thereafter can Ms Jonczyk have thought that the black tape, as distinct from the wet matting, was implicated in the fall, notwithstanding that she was a dance teacher who would be expected to focus on how her student had come to fall; she did not refer to the black tape.

(e) Disclaiming that the appellant was negligent in the way she was dancing readily left that she had fallen because that was something that happened when doing a high kick. It was not necessary to put this to the appellant. The risk of dance injury was common ground, the evidence included the “Safe Dance Report” 1997, and the appellant’s lawyers chose not to lead any evidence from the appellant beyond the fact that she slipped and fell.

(f) The Safe Dance Report 1997 included that “accidental fall” accounted for 12 per cent of injuries. As a 16 year-old student, despite her proficiency the appellant was no less exposed to an accidental fall than the cohort resulting in this finding, and a high kick as a matter of common sense risked loss of footing of the supporting foot if the manoeuvre was not well executed.

(g) From Ms Jonczyk’s letter and the first respondent’s reply, the Performing Arts Challenge continued despite the appellant’s fall. Eight schools performed dance pieces on the matting after the appellant’s fall, and there was no evidence that any difficulties were encountered.

39 There was some debate in the appeal over whether Ms Jonczyk’s letter and statement could be treated as expert evidence. I do not think it necessary to go into that matter. I have treated her, as a dance teacher, as in a position to convey the views of a person so experienced.

40 The question is a narrow one. In summary, on the appellant’s case negligent dancing was excluded and the choice was between a fall unconnected with slipping (in the sense of slipperiness) and, when the appellant was close to the black tape marking the extremity, a fall because she stepped on the slippery black tape; the latter was more than conjecture or surmise, and was a reasonable and definite inference. On the respondent’s case, in that choice a fall because the appellant stepped on the black tape did not rise above equal probability with falling because in executing an inherently risky high kick the appellant simply lost her footing on the matting.

41 The appellant has the burden of proof. I find it a difficult decision, upon closely balanced considerations. Executing a high kick places the dancer at risk of a fall, even on a suitable surface, if the manoeuvre is not well executed, and the appellant’s evidence left that as the explanation for her fall. I am not persuaded that she fell because of the black tape.

Orders

42 I propose that the appeal be dismissed with costs.

43 HODGSON JA: The circumstances giving rise to this appeal and the issues it raises are set out in the judgment of Giles JA.

44 Giles JA has directly addressed the question whether the evidence before the primary judge justified the inference that the slippery tape was the cause of the appellant’s fall. In my opinion, this is the correct approach in this case, rather than to ask the question whether the Court is satisfied that the primary judge’s conclusion was wrong. This is because, in my opinion, the reasoning of the primary judge does disclose error.

45 In particular, his statement that “there was no evidence [the appellant] had difficulty complying with this request” (that is, the request to perform within the taped area) incorrectly denies the possibility of drawing such an inference from the evidence as to the size and inadequacy of the area taped out.

46 I agree with Giles JA that the appellant’s evidence to the effect that the taped area was “maybe four metres long and probably two or three metres deep” was not accurate; and that the length must have been more like eight to ten metres and the depth more like four metres.

47 I agree substantially with the statement by Giles JA of the factors in favour of the inference that the appellant stepped on the black tape and thereby fell, and, subject to what I say below, with his statement of the factors against that inference.

48 As regards his factor (a) against the inference, I would comment that the edge of a stage is a far more obvious feature than a black tape laid across matting; and the appellant’s evidence that on the stage she had a consciousness of where the perimeter was does not strongly support a conclusion that on matting she would have had a consciousness of where the black tape was.

49 As regards his factor (b) against the inference, in the absence of cross-examination on the point I would accept the plaintiff’s evidence that she slipped.

50 As regards his factor (f) against the inference, the reference to “accidental fall” in the Safe Dance Report was neutral as to whether such a fall was or was not caused by some defect in the floor or some other adverse condition. I accept that a high kick involved some risk of loss of footing of the supporting foot if not well executed; but in my opinion, for a dancer who was well co-ordinated and had a good technique, the risk would be small in the absence of some contributing circumstance.

51 I place substantial weight on the appellant’s unchallenged evidence that she slipped, and on the expert evidence that the matting was not slippery but the tape was. In my opinion, these factors, coupled with evidence that supports the inference that the appellant, dancing as she was at the end of a line of 15 dancers, must have been at least near the tape, is sufficient to draw the conclusion, on the balance of probabilities, that the appellant did slip because she stepped on the tape.

52 Although the primary judge did not explicitly find negligence, in my opinion his findings are sufficient for this Court to make such a finding. There is no question that both respondents owed the appellant a duty of care. My finding is that the appellant’s fall was caused by the unsafe condition of the dance floor; and in my opinion it was foreseeable by the first respondent that to provide for use in the rain by a group of around 20 students an area of the size in question, bounded by a slippery tape, involved a significant risk of injury; and in my opinion, the reasonable response of the first respondent to this risk would have been to provide a larger area or to ensure that the border was not slippery, or, if this was not possible, to cancel the performance. Since the second respondent’s duty was non-delegable, this finding means that the second respondent must also be liable.

53 I join in the remarks of Giles JA concerning the absence of an explicit finding on the question of negligence, the absence of a finding as to apportionment of liability, and particularly the absence of a finding as to damages. This was not a case where a plaintiff lost at first instance because of the primary judge’s findings as to her credibility, which would have made the assessment of damages against the possibility of a successful appeal problematic. Because of the absence of these findings, my decision would require that the matter be remitted to the District Court for determination of the apportionment of liability and of damages.

54 I propose the following orders:

(1) Appeal allowed.

(2) Respondents to pay the appellant’s costs of the appeal.

(3) Orders below set aside.

(4) Verdict for the appellant against both respondents for damages to be assessed.

(5) Respondents to pay the appellant’s cost of the proceedings to date, unless by reason of settlement offers or some other sufficient reason the judge conducting the further hearing determines that a different order should be made.

(6) Matter remitted to the District Court to apportion liability and assess damages.

55 WINDEYER J: I agree with Giles JA, although, like him, I consider the decision difficult.

56 The difficulty for the plaintiff is that the case was conducted on the basis (a) that the experts agreed that the Astro Turf matting, when wet, presented a low risk of slipping; and (b) that thus there was no failure to provide a safe surface for dancing, so far as the matting was concerned. Thus to succeed the plaintiff had to establish that she had slipped on the black tape and it was the slipperiness of the black tape which caused her to fall.

57 I agree with Giles JA that it can be inferred the matting dance area was much the same as the stage dance area. There was no evidence to suggest that the competition had not proceeded satisfactorily on the stage area prior to the rain. While the plaintiff, at the end of line, must have been closest to the tape on the left hand edge of the dance area facing out, I do not think it can be found that she was squashed for room. She did not say that she was. She had been told by her teacher and by the event controller that she must dance inside the taped area and if this were a condition for satisfactory performance one would expect her to be mindful of it.

58 The experts stated, and it is obvious enough, that there is a risk of falling when a dancer performs a high kick. This risk would be less with a competent dancer, which the plaintiff was, than with an inexperienced dancer. Nevertheless, a high kick might result in overbalancing ending in a fall or it might bring about a fall resulting from slipping through weight change during performance of the high kick.

59 The significant evidence of the plaintiff was that she was not sure where she was in relation to the taped line when she fell and that she did not know where she was in relation to that line after falling. The complaint by letter from the teacher, Ms Jonczyk, underlined in paragraph 29 of the judgment of Giles JA is a complaint about the surface of the taped off area not about the tape. The statement of the teacher, admitted only against the second defendant, said that the plaintiff was directed to dance “at the area where it bordered very closely with the black tape to the left front area of the stage … Simone fell during the jazz dance performance.” And that “there was a lot of water pooling on or near the area where she had danced”.

60 Rightly or wrongly, the case presented by the plaintiff was dependent upon it being found through inference she fell because she slipped on the black tape. I have concluded such an inference should not be drawn on the balance of probabilities. I do not regard proximity to the tape to be sufficient to draw the inference that she stepped on it and as a result slipped and fell. While I accept that she was not cross-examined on her statement in evidence in chief that she slipped the signed incident report does not record her slipping and her teacher did not complain about slipping on the tape. I am unable to find that a slip on the tape was more probable than a fall on the matting while performing the kick.

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