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 2008JUDGMENT 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 RespondentFILE NUMBER(S): CA 40243/07 COUNSEL: A S Morrison SC & W B Nicholson - Appellant
N J Polin - First Respondent
J E Keesing - Second RespondentSOLICITORS: Owen Hodge Lawyers, Hurstville - Appellant
DLA Phillips Fox - First Respondent
Makinson & d'Apice - Second RespondentLOWER 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 5320/04Friday 2 May 2008GILES JA
HODGSON JA
WINDEYER J
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
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- Case
- [2008] NSWCA 78
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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