Citation : JONES -v- DARKAN HOTEL [2013] WADC 70

Negligence - Appellant injured in fall at hotel - Whether known prankster tripped appellant in hotel - Whether hotel owed duty to patrons to stop conduct of prankster - Whether trial judge erred in finding that appellant failed to prove prankster tripped her - Turns on own facts

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Leeder v The State of Western Australia [2008] WASCA 192

Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; (1992) 35 FCR 359

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

Williams v The Minister Aboriginal Land Rights Act 1983 [2000] NSWCA 255; (2000) Aust Torts Reports 81-578

1 JUDGMENT OF THE COURT: This is an appeal against a decision of Keen DCJ, who dismissed the appellant's claim for damages for personal injury arising out of an accident at the respondent's premises.

2 The appellant was injured while playing pool at the respondent's hotel when she fell over while taking a shot at the pool table. The substantive issues in the case were whether, as alleged by the appellant, she fell as a result of being tripped by another patron of the hotel, Mr Wright, and, if so, whether the respondent was negligent in failing to have taken steps to prevent Mr Wright from continuing to engage in a known propensity to trip patrons.

3 The primary judge dismissed the claim, concluding that he was not satisfied the appellant had been tripped by Mr Wright. The appellant contends that his Honour erred: that on the evidence the only finding reasonably open was that the appellant fell because she was tripped by Mr Wright.

4 For the reasons which follow, we are not persuaded that the primary judge erred and accordingly we would dismiss the appeal.

5 In her statement of claim, the appellant pleaded, in substance, that at about 6.30 pm on 30 October 2009 she was engaged in a game of pool at the respondent's premises. As she held the pool cue in her hand and leaned forward over the pool table, Mr Wright tripped her by striking the back of her ankles. As a result, the appellant overbalanced and fell to the ground, landing heavily on her back and buttocks and thereby sustaining injury (par 5).

6 The appellant alleged that at all material times Mr Wright was a regular patron at the premises (par 6.1), and that he had a longstanding propensity to indulge in unruly and disorderly behaviour at the premises in that he often attempted to overbalance unsuspecting patrons by tripping them, surreptitiously moving their stools or chairs while they were standing, and/or sticking his leg in front of them as they walked past (par 6.2), and that the respondent was aware of that propensity (par 6.3).

7 The appellant alleged that the respondent was negligent in failing to take steps to address the risk of injury to patrons at the premises from Mr Wright's behaviour by, among other things, threatening to remove, or actually removing, Mr Wright from the premises (par 7).

8 The respondent, in substance, did not admit that the appellant suffered the alleged injury and, while it admitted that Mr Wright was a regular patron at the hotel, it denied that he had the propensity claimed by the appellant or that it knew of such a propensity. It also pleaded contributory negligence.

9 The primary judge found, in effect, that Mr Wright attended the hotel on a regular basis and from time to time, in the nature of a prank, he would put his leg out in front of someone as they were passing by, in a pretence at tripping, but with no intention of actual tripping [99], [103]. There was no evidence that Mr Wright had ever actually tripped anyone [99], [102]. 'At its highest' in the past, 'his actions almost led to a trip or stumble when Ms Hamilton [an employee of the hotel] almost lost the plate of food she was carrying' [99].

10 In relation to the plea in par 6.2 of the statement of claim, the primary judge found there was no evidence that Mr Wright surreptitiously moved patrons' stools or chairs while they were standing, and the extent to which he had attempted to overbalance unsuspecting patrons by tripping them was limited to his feigned tripping [101].

11 The primary judge found that the appellant did fall over at the hotel during a game of pool on 30 October 2009 [111], but his Honour did not accept that the appellant was tripped by Mr Wright.

12 The primary judge noted that Mr Wright did not give evidence and neither side pressed for a Jones v Dunkel inference (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298) to be drawn adverse to the other. The only witnesses who gave evidence of the appellant's fall were the appellant and another patron of the hotel, Mr Brewster, and they gave conflicting accounts of how it occurred. Both agreed that the appellant was in the area of the top left hand pocket of the pool table, near a doorway leading to an outside area. However, they differed as to Mr Wright's location and as to how the appellant came to fall.

13 The appellant said that she had the pool cue in her hand, and was leaning over and on the pool table to take her shot. Her left leg was close to the table and her right leg was extended straight out behind her. The appellant said Mr Wright was in the doorway behind her. According to the appellant, she felt a hit on the back of her right leg in about the area of her ankle. The appellant said that after being struck, she lifted up, twisted to her right so that she was facing the bar and fell backwards with her head away from the bar. The appellant said that Mr Wright helped her up by her right arm.

14 Mr Brewster, who was seated nearby at the bar, said that the appellant had the cue stick in her right hand and was standing, not leaning over the pool table. She did not have her hands on the pool table. He described the appellant as being in the area of the top of the left hand pocket of the pool table, about 4 feet back from the table (the primary judge found that was an over-statement and the distance was about 2 feet [122]) and said that Mr Wright was a short distance away to the appellant's left.

15 According to Mr Brewster, as the appellant moved back to position herself for the shot, Mr Wright moved across and put out his right leg, above the ground, striking the appellant's left leg (not her right leg, as the appellant said) and tripping her. Mr Brewster's evidence was that the appellant fell so that she was lying with her head towards the bar; that is, in the reverse of the position described by the appellant. Mr Brewster also said, contrary to the appellant's evidence, that Mr Wright helped the appellant up by her left arm, not her right arm.

16 The primary judge did not accept the appellant's account. His Honour considered that if the appellant was leaning over and on the table with both hands on the cue and her legs positioned as she had described, it was difficult to see how she could have been tripped by being hit on the back of the right leg in the ankle area, that being the leg extended away from the table [129]. It was a matter of common sense and common experience that if a person was leaning forward over a table with their weight forward when struck from behind on the trailing leg, it is more probable than not that the person would fall either forward or straight down and not as described by the appellant, that is to say lifting upwards, turning to the right and falling straight backwards [130].

17 The primary judge preferred Mr Brewster's evidence that immediately before the incident the appellant was standing at the table, not leaning on it, and fell over as she was stepping back in preparation for making her shot. His Honour also accepted Mr Brewster's evidence that immediately before the incident, Mr Wright was located to the appellant's left and not behind her at the door. His Honour further accepted Mr Brewster's evidence as to where the appellant landed and as to how Mr Wright assisted her to her feet.

18 However, the primary judge did not accept that Mr Wright had tripped the appellant. His Honour noted that the appellant did not see Mr Wright do so but had simply felt what she assumed to be his leg against her right leg [138].

19 Mr Brewster's evidence on the point was also rejected. The primary judge noted that Mr Brewster gave evidence that he had seen Mr Wright trip people on two occasions, the present occasion and an earlier occasion involving an employee of the hotel, Ms Hamilton. In relation to the earlier occasion, in his evidence-in-chief Mr Brewster had described in some detail an incident he said he had witnessed in which Ms Hamilton had almost fallen over with a load of plates when Mr Wright deliberately put his foot out in front of her. However, in cross-examination an earlier written statement he had made was put to him. In that statement he said he had 'heard of [Mr Wright] tripping other people and staff members of the Darkan Hotel' and that he could 'recall hearing about him tripping [Ms Hamilton] who used to work there'. Mr Brewster's explanation for the discrepancy with his oral evidence was that he had been mistaken in saying in his written statement that he had heard about it.

20 The primary judge rejected that explanation and found that Mr Brewster had only heard about the incident involving Ms Hamilton [152]. His Honour concluded that the fact Mr Brewster was prepared to colour his evidence in this way strongly suggested that he was prepared to tailor his evidence in an attempt to bolster the appellant's case [153]. In addition, his Honour found that Mr Brewster's evidence about Mr Wright's foot being above the ground was clearly a reconstruction to support a case of tripping [154]. His Honour was not satisfied that Mr Brewster's account of how the appellant fell was truthful and his Honour did not accept it.

21 The primary judge found that the evidence as to Mr Wright's propensity to feign to trip people did not assist the appellant. The evidence of the appellant and Mr Brewster as to the appellant's fall was not that it was a feigned trip by Mr Wright which had 'misfired', but a deliberate trip while the appellant had her back to him [156], [158]. There was no evidence that Mr Wright had a propensity actually to trip people, as opposed to feigning to do so [159], [160].

22 His Honour concluded that he was not satisfied that the appellant had been tripped by Mr Wright and her case must therefore fail.

23 The primary judge went on to make what were, in light of that finding, in the nature of provisional findings in respect of the issues that would otherwise have arisen on the appellant's case.

24 His Honour found that the respondent was not negligent at common law nor was it in breach of s 5(4) of the Occupier's Liability Act 1985 (WA). His Honour considered that in light of the respondent's knowledge of Mr Wright's propensity (as his Honour had found that propensity to be), the gravity and likelihood of the injury were not foreseeable [183].

25 In relation to the Civil Liability Act 2002 (WA), his Honour considered that the risk of harm in the absence of any action by the respondent was not only not foreseeable but insignificant. It was not foreseeable that Mr Wright would move from a prankster pretending to trip patrons to a person who would deliberately trip the appellant [197]. A reasonable person in the respondent's position would not have taken further steps to avoid what occurred [198]. The primary judge was also not satisfied that even if Mr Wright had been given a warning about his propensity to feign tripping people, that would have prevented the deliberate trip that was alleged to have occurred [199].

26 The trial judge made a provisional assessment of damages in the sum of $224,404.80.

27 The appellant relied upon the following grounds of appeal:

1. The learned trial judge erred in fact in failing to find that the appellant fell as a result of being tripped by another patron, Mr Wright, at the respondent's premises.
2. The absence of a positive finding as to how the appellant came to fall was an error of law in that the reasoning process of the learned trial judge was contaminated by irrelevant considerations and failed to disclose why no positive finding could be reached.
3. The learned trial judge erred in law in finding that the gravity and likelihood of the injury sustained by the appellant was required to be foreseeable as an element of the standard of care to be discharged by the respondent.
4. The learned trial judge:

(a) erred in law in failing to find that the gravity and likelihood of probable injury was the relevant injury; and

(b) erred in fact in failing to find that the relevant probable injury from an uncontrolled fall included injury to a person's lower back and/or coccyx.

1. The learned trial judge erred in fact in finding that the risk of injury was insignificant.
2. The learned trial judge erred in law and fact in failing to find that the risk of injury was not insignificant given that:

(a) the facts otherwise found by the learned trial judge established that a number of prior incidents involving a regular patron at the Respondent's hotel ('Mr Wright'), at the hotel resulted in staff or patrons stumbling or nearly falling; and

(b) in any event, attempting to trip a person when they are not expecting to be tripped by its nature carries a not insignificant risk of harm by falling to the ground.

1. The learned trial judge erred in law and fact in finding that the appellant was required to prove that Mr Wright actually tripped patrons or staff before any duty arose on the Respondent to take any action to manage the risk presented by Mr Wright pretending or attempting to trip patrons or staff.
2. The learned trial judge erred in fact in failing to find that the propensity of Mr Wright to attempt to trip patrons and staff, as was known by the respondent, was sufficient to require some action by the respondent to minimise the risk of harm.
3. The learned trial judge erred in law and fact in failing to find that the failure by the respondent to take any action was a contributing cause to the appellant falling.

The disposition of the appeal Grounds 1 and 2

28 These grounds can conveniently be considered together.

29 The relevant principles are well-established and were not in issue. They can be shortly stated. This appeal is by way of a rehearing solely on the evidence which was before the primary judge. In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 125 - 126, Gleeson CJ, Gummow and Kirby JJ pointed out that that shapes the requirements and limitations of an appeal:

On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance' Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 561 ... On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record ... These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share ...

...

[But] if, making proper allowance for the advantages of the trial judge, [appellate courts] conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties ... [23], [27].

30 Their Honours reiterated, however, the rule referred to in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 551, that:

[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it [25].

31 Nevertheless, the onus which lies on an appellant who appeals against findings of fact goes beyond merely showing that an alternative finding was available on the facts. An appeal is not a new trial on the evidence, constrained only by the unassailable factual findings: error must be demonstrated: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 [30]. As the Full Court of the Federal Court said in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; (1992) 35 FCR 359:

The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made (369).

See also Williams v The Minister Aboriginal Land Rights Act 1983 [2000] NSWCA 255; (2000) Aust Torts Reports 81-578 [60]; Leeder v The State of Western Australia [2008] WASCA 192.

32 The appellant did not seek to challenge the rejection by the primary judge of the appellant's evidence that she was bending over the table to take her shot when she was struck by Mr Wright on the back of her right leg, causing her to lift up, twist, and fall to the floor. His Honour considered that account to be inherently improbable, as indeed it was.

33 The appellant also did not seek to challenge his Honour's rejection of Mr Brewster's evidence that he saw Mr Wright move across and put his foot out, deliberately striking the appellant's left ankle. The primary judge rejected that evidence based on a finding as to credibility. It is not suggested (rightly in our view) that it was not open to his Honour to do so. His Honour also considered that part of that evidence, namely that Mr Wright had raised his foot above floor level for the trip, was clearly a reconstruction. That finding was also plainly open. Mr Brewster's evidence in that respect (ts 251) bore the hallmark of a reconstruction.

34 The appellant also accepted the primary judge's finding to the effect that Mr Wright's acted as a prankster to the extent that he would, from time to time, put his leg out in front of someone as they were passing by, in a pretence at tripping, but without any intention of actually tripping the person. According to the appellant's counsel, 'the whole point about the prank [was] for it to be a near miss ... to get a reaction ...' from the person the subject of the prank (ts 10). That characterisation is consistent with his Honour's finding that the prank, at its highest, might cause a trip or stumble 'and cause that person to react' [105].

35 It was submitted, however, that given his Honour's finding that Mr Wright was to the appellant's left, and the appellant's evidence (which it was submitted was not rejected) that she felt contact with Mr Wright's foot or lower leg against her [right] ankle or lower leg, Mr Wright must have moved forward in order for contact to be made. On his Honour's finding that Mr Wright was not behind the appellant as she was about to take her shot, she could not have walked backwards into him. His Honour had also found that Mr Wright had a propensity to feign to trip people. In the circumstances, it was submitted, the only reasonable explanation for the appellant's fall was that as the appellant moved backwards preparatory to taking her shot, Mr Wright moved across and deliberately put his lower leg or foot into a position where it came into contact with the appellant's leg, causing her to trip.

36 In particular, as explained at the hearing (ts 13 - 14), it was alleged, in effect, that his Honour erred in failing to find that the only reasonable explanation for the appellant's fall was that:

(1) Mr Wright deliberately moved across from his position at the left of the appellant at the point of time at which the appellant was moving backward from the pool table for the purpose of assessing her shot; and

(2) in moving across towards the appellant, in accordance with Mr Wright's propensity as a prankster, he made a pretence to trip the appellant; and

(3) the pretence miscarried in that Mr Wright's leg actually struck the appellant's leg with such force that she was twisted around and ended up on her back with her head towards the bar and her feet towards the television.

37 We do not accept that submission. In the first place, it is not the case that the primary judge accepted the appellant's evidence that she felt contact with Mr Wright's foot or lower leg against her ankle or lower leg. His Honour simply noted that the appellant 'only felt what she assumed to be [Mr Wright's] leg against her right leg' [138]. That is consistent with the appellant's evidence that she 'presumed' the blow she said she felt on her back leg was Mr Wright's foot; that what she felt was 'a thick piece' which 'could have been a leg' (ts 77).

38 Secondly, the hypothesis advanced by the appellant's counsel at points (1) and (2) of the above submission is not borne out by the finding of the primary judge on which it purportedly relies. His Honour found, in effect, that Mr Wright had a propensity to stick his leg out in front of people as they were passing by, in a pretence of tripping. However, the hypothesis advanced on appeal effectively requires an acceptance of the proposition that Mr Wright made a deliberate movement towards the appellant, and that the alleged pretence effectively occurred behind the back of the appellant as she stepped backwards from the edge of the pool table, without any knowledge of the alleged prank being practised upon her.

39 Thirdly, the hypothesis in point (3) above as to the force applied to the appellant's leg finds no real support in the judge's finding as to the nature and scope of the prank practised by Mr Wright from time to time in the past, even allowing for the possibility that the prank might, in effect, misfire and cause a trip or stumble [105].

40 Fourthly, it was not, as contended by the appellant, incumbent upon the primary judge to make a positive finding as to what caused the appellant to fall. It was for the appellant to persuade the primary judge that she fell as a result of being tripped by Mr Wright, either by way of a deliberate trip or what had been intended by Mr Wright to be a feigned trip. His Honour was entitled to conclude that he was not so persuaded. His Honour found that Mr Wright's proximity, his propensity to feign tripping and the fact that the appellant had fallen after 'feeling something on her [right] leg', did not mean that the only reasonable inference open as to the cause of her fall was that she was tripped by Mr Wright, and his Honour declined to draw that inference.

41 Nothing has been advanced by the appellant which is capable of demonstrating that his Honour was in error in doing so. There were, as his Honour observed, other reasonable explanations open for the appellant's fall, including that Mr Wright moved for some quite innocent reason and the appellant tripped over him when she stepped back [162]. It may also have been that she made no contact with Mr Wright and fell for some other reason.

42 His Honour did not err by refusing to draw the inference sought by the appellant. In our view, on the facts as found by his Honour, to conclude that Mr Wright had tripped the appellant would have been to depart from inference into the realm of speculation.

44 In light of the conclusion we have reached, these grounds of appeal do not arise.