BURNS v HOYTS PTY LTD

LOWER COURT JURISDICTION : District Court LOWER COURT 4464/00 FILE NUMBER(S) : LOWER COURT Gibb DCJ JUDICIAL OFFICER :

COUNSEL : J D Hislop QC/P A Regattieri - Appellant B F Murray QC/C A Twomey - Respondent SOLICITORS : R J Rimes - Appellant Boyd House & Partners - Respondent CATCHWORDS : NEGLIGENCE - duty of care - reasonably foreseeable risk of injury - automatic retraction of cinema seats - duty to warn LEGISLATION CITED : N/A Wyong Shire Council v Shirt (1980) 146 CLR 40 "Wagon Mound" (No 2) [1967] 1 AC 617 CASES CITED: Hackshaw v Shaw (1984) 155 CLR 614 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 DECISION : 1. Appeal allowed; 2. Set aside the verdict and judgment of Judge Gibb of 20 February 2001; 3. In lieu thereof verdict and judgment for the plaintiff in an amount to be assessed; 4. Remit the matter to the District Court for a new trial limited to the assessment of damages; 5. The respondent to pay the appellant's costs of the appeal and of the hearing before Judge Gibb.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40141/01 DC 4464/00 SHELLER JA HEYDON JA IPP AJA

The appellant sought to recover damages for injuries she claimed were attributable to the defendant's negligence. The alleged injuries were sustained at a cinema complex in Bankstown which was owned and managed by the respondent.

The appellant attended the cinema in her capacity as a teacher's aide and was responsible for the welfare of a disabled child. The appellant was unaware that the seats within the cinema automatically retracted when unoccupied and, on rising to attend to the child, she did not realise that her seat would revert to a vertical position. She attempted to sit on the retracted seat and suffered injury to the coccyx and the discs and ligaments of the lumbar spine.

In the District Court proceedings the respondent did not dispute that it owed a duty of care to the appellant in its capacity as the occupier and controller of the cinema in which the appellant was present as a patron. While Judge Gibb found that the appellant had collided with the metal support structure of the seat when she attempted to sit down, judgment was entered against the appellant.

Her Honour held that the cinema seats were not inherently dangerous and it was not unreasonable for the respondent to expect that its patrons were aware of the automatic retraction of the seats. The trial Judge concluded that the absence of warning signs alerting patrons to the retraction of the seats was an irrelevant consideration as the appellant would have been likely to act in a similar manner even if she had known that the seats retracted automatically.

The appellant challenged the trial Judge's findings, with particular regard to the absence of a warning.

HELD (by Sheller JA, Heydon JA and Ipp AJA agreeing):

There is a reasonably foreseeable risk that if a patron in a darkened cinema is not aware that the cinema seat automatically retracts when the patron stands up and believes it is still in place, the patron will attempt to sit without putting the seat down.

The trial Judge failed to address the question whether a reasonable person in the position of the respondent would have foreseen that some patrons returning to their seats in the dark might have assumed that the seats were still down as they left them because they did not know or realise that the seats were automatically retractable.

The display of a warning sign to patrons in the foyer before entering the cinema and in the cinema about the retraction of the seats is a simple matter.

The finding of the trial Judge that the appellant would have acted in the same or a similar manner even if she had been warned of the dangers associated with the retraction of the seats was unsustainable. There was an overwhelming inference that a person, who did not know from observation or experience that the seats automatically retracted when she stood up but who read on a warning notice that they did, would have included that added piece of knowledge in the thinking processes in play when returning to the seat and would have taken care to ensure that the seat was down before she sat.

Cases cited Wyong Shire Council v Shirt (1980) 146 CLR 40 "Wagon Mound" (No 2) [1967 1 AC 617 Hackshaw v Shaw (1984) 155 CLR 614 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 ORDERS 1. Appeal allowed;

2. Set aside the verdict and judgment of Judge Gibb of 20 February 2001;

3. In lieu thereof verdict and judgment for the plaintiff in an amount to be assessed;

4. Remit the matter to the District Court for a new trial limited to the assessment of damages;

The respondent to pay the appellant's costs of the appeal and of the hearing before Judge Gibb.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40141/01 DC 4464/00 SHELLER JA HEYDON JA IPP AJA

Friday, 8 February 2002 BURNS v HOYTS PTY LIMITED

Judgment 1 SHELLER JA: Introduction The appellant, Diane Burns, began proceedings in the District Court against the defendant, Hoyts Pty Limited, to recover damages for injuries she claimed to have suffered as the result of the defendant's negligence. On 17 March 1997 the plaintiff, a teacher's aide who specialised in working with children with disabilities, went in company with about five other adults to a cinema complex at Bankstown. The defendant was the owner and occupier and had the control and management of the complex. The plaintiff and the other adults took with them eight young children, all of whom were disabled. She was responsible for a four year old boy called Joshua. Joshua's physical disabilities were such that he was wheelchair bound although he could crawl. The plaintiff was not a regular film goer. She had not previously been to the Bankstown cinema complex nor had she been to any cinema since her own children, who were then aged in their teens, were very young. 2 All the seats in the Bankstown cinema complex were automatically retractable, that is to say the seat automatically tipped back to the vertical when unoccupied. When the plaintiff and her companions went into the cinema the unoccupied seats were retracted and upright. The plaintiff and her companions walked down the right hand aisle and seated themselves in the front row. The plaintiff sat down in the seat at the end of the front row on the left of the aisle. To do so she put the seat down. Next to her was another teacher's aide, Ms Zito. To the plaintiff's right, that is to say on the aisle side and slightly in front of her, she had parked Joshua's wheelchair. Another child, minded by Ms Zito, was in front of the plaintiff on her left side. 3 The cinema house lights went down and the film began. The cinema was dark except for the light reflected from the screen. After a while Joshua became agitated. He was "screaming and carrying on". One of the party told the plaintiff to put Joshua down on the ground to settle him. To do this the plaintiff took Joshua out of his wheelchair. She lent forward, without leaving her seat and unstrapped him. Although Joshua could not walk he could crawl "like a rocket". He set off to the left in front of the seats. The plaintiff went after him and retrieved him. She did not notice that the seat retracted when she got up. She picked him up and went back to the seat to sit down. Joshua was screaming and kicking. The plaintiff had hold of him with her right arm and felt for what she thought was the seat. She sat down while the seat was retracted. She alleged that as a result she suffered injury to the coccyx and the discs and ligaments of the lumbar spine, pain and suffering and restrictions on her employment, sporting and social and domestic activities.

Trial 4 Her Honour Judge Gibb heard the proceedings in February 2001. On 20 February 2001 her Honour found a verdict for the defendant and entered judgment against the plaintiff accordingly. The plaintiff was ordered to pay costs. 5 The defendant did not dispute that it owed to the plaintiff a duty of care as the occupier and controller of the cinema complex in which the plaintiff was present as a patron. The reports of two experts were in evidence. The plaintiff tendered a report by Dr B N Emerson of 28 April 1999. The defendant tendered a report by David Eager of 30 March 2000. Neither expert was required to give oral evidence. Mr Eager described the seat as a typical generic theatre seat and pointed out that the seats used in the front row were no different from any other seats in the eight theatres in the cinema complex. According to Mr Eager the theatre seat was a single pedestal mounted retractable seat. There were two primary components, a fixed or rigid component and a moving or pivotal component. The fixed component consisted of a recessed pedestal which was painted white and constructed from welded mild steel square tube and flat bar elements. This fixed component contained the vertical back rest which was covered in a wear resistant and fire retarding fabric and an arm rest. The edge of the pedestal was recessed approximately 50 mm behind the outermost edge of the seat. The seat, which was also covered in the same wear resistant and fire retarding fabric, was the moving component. There is no Australian standard covering theatre seating design. Mr Eager noted that seats are normally in the upright position, and said this was a common practice within theatres. Retractable seats are used, amongst other reasons, to allow easy access for patrons to move along rows and easy access for cleaners. They are also used in theatres such as the Sydney Opera House to maintain similar acoustical properties whether the theatre is full or empty. 6 Judge Gibb found as follows: "The seats retract when not in use. When not under pressure, the bottom of the seat pivots upwards to rest in a substantially vertical angle. Ms Burns did not know that the seats retracted in this way, and there were no warning signs to this effect. She was not a regular film-goer. She had not previously attended that cinema; and had not been to the cinema since her children, then teen-aged, were very young. Ms Burns did know that the seats - including her seat - had been retracted when she had arrived at the cinema (the house lights then being illuminated). Indeed, she had put down her own seat before seating herself initially. She did not notice that her seat retracted when she got up to collect Joshua immediately before the accident. ….. When retracted, the bottom of the seat pivots upwards to just short of the armrests. The bottom of the seat is then inclined inwards at an angle of about 20 ° downwards (or 70° upwards from the horizontal). It had the effect of recessing the edge of the metal pedestal supporting the seat by about 50 mm as against the outside edge of the upwardly pivoted seat. The angle from the top of the seat base (as inclined upwards) to outer edge of the supporting metal pedestal is about half that of the overall inclination of the chair - say about 10° downwards. The top of the supporting pedestal is about 200 mm lower than the top of the lowered seat - which is about 500 mm above the floor." 7 Judge Gibb found that the plaintiff did not come into contact with the upwardly pivoted seat. She struck only the supporting pedestal. She did not see what she struck, then or later. Ms Zito's recollection was that the plaintiff was retrieving a student "when the seat flipped up and she sat on an upright metal post". Her Honour observed: "If Ms Burns had sat straight down as she now thinks was the case, she would have come into contact with at least some other part of the seat. That she was not doing, although I accept that she now believes that she was doing this. She angled backwards in the course of her descent." 8 After she picked up Joshua and took him back to her seat she was holding him with her right arm across her chest. He was facing outwards (with his back to her) kicking and screaming and she was trying to calm him down with her left arm. She then moved back to her seat. Her Honour observed: "That was no small task. Ms Burns is a very small person. She is about 151 cm tall (5 feet and ½ inch in her terms), weighed 7-1/2 stone (47.63 kilograms) and had a long-standing difficulty with her right arm that was so bad that she could not write properly with it." 9 Joshua was of a substantial weight for a small person such as the plaintiff particularly with a significantly weakened right arm. Joshua was also struggling, kicking and rather agitated. Her Honour continued: "Having recaptured Joshua, Ms Burns walked towards where she was sitting, then turned around." 10 She said that she put her left hand out to feel where the seat was because it was dark even though the screen was there. She felt the material which she thought was the seat and sat down. Asked whether she "felt and [her] left hand touched the top of the retracted seat or not" she said: "Now I do because I have been shown the seats retract and apparently that's what I had felt." Judge Gibb said: "I infer that Ms Burns would have been conscious that she was touching a vertical plane rather than a horizontal plane. She did not recognise that. Given that the seat was retracted, I infer that the material that she felt was either the top of the retracted seat or the top of the seat back. Assuming the former, her hand was just short of the arm-rest and above the proper seating position when the seat is lowered into the set seating position. That is not without significance in the light of Ms Burns' height, of some 151 cm, particularly given that she was holding and trying to restrain the struggling Joshua. She realised the risk very quickly. But there was nothing she could do. Because once I started to sit down and realised the seat was not there I couldn't stand back up again. I had nowhere to go but just to continue sitting. I find that Ms Burns attempted to seat herself when under a misapprehension as to the height of the seat - assuming it to be where she had felt, being somewhat higher than it actually was. She recognised that there was a problem, but was unable to control her descent when the error became apparent (in part at least because she was carrying Joshua and had only one arm free). Having located what she (mistakenly) thought was the edge of the lowered seat base, Ms Burns then lowered herself so that she made no contact with the seat - ie, outside of the edge of that which she had located but mis-identified as the seat base. She thus attempted to lower herself through a plane that was outside the edge of what she thought was the seat base. Ms Burns then speared (plunged?) down and backwards at an angle that was sufficient to ensure that she cleared the inclined seat base but collided with the recessed pedestal. It is a matter of speculation whether this was because she was struggling with Joshua, or because she had tried to seat herself under a misapprehension as to the proper height of the seat or otherwise. Her case is not assisted by the only other possible construction, that she felt the vertical plane of the seat and incorrectly decided that it was a horizontal plane (ie the seat base). Ms Burns injured her coccyx in the accident. I do not know whether that was because of the force of the impact, the sharpness of the surface with which she collided, the rigidity of that which she struck, or some combination of these. The general practitioner whom she consulted in July 1997, Dr Atallah arranged radiological investigations. On the basis of those investigations, he reported that she sustained no definite fracture of the sacrum, coccyx or lower lumbar vertebrae. There was a narrowing of the L5/S1 disc space and a minor symmetrical bulging at L4/5 with a slight encroachment on the thecal sac. He referred her to a specialist surgeon, Dr Habib, who identified (inter alia) jarring musculo ligamentous injuries to her low back/lumbar spine and over the months following noted that she had on-going tenderness in the lumbo-sacral and sacro-coccygeal joint. A later MRI has shown there to be a disc lesion at L4/5 causing a minor impression on the left L5 nerve root. That concerned Dr Beer who made further inquiry of the radiologist." 11 In summary Judge Gibb found that the plaintiff collided with the metal support structure for the seat which was then pivoted upwards. 12 There followed in the reasons for judgment a discussion under the heading "Foreseeability of injury and duty of care". This led her Honour to consider whether the seats were inherently dangerous. She referred to the evidence of Dr Emerson and Mr Eager. Judge Gibb said: "The plaintiff focused her attack upon the suitability of the seat and the supporting pedestal. She makes a general allegation of negligence in that she alleges that the defendant failed to keep the premises as safe as reasonable care and skill could make them. On the basis of the evidence before me, I read that allegation as being confined to the complaints about the seat. Ms Burns complains that the defendant was negligent in that it failed properly to outline the position of the top portion of the seat such that it was visible to people such as her. That allegation fails in circumstances where Ms Burns concedes that she did not look at the seat before she attempted unsuccessfully to seat herself but rather located the seat by touch. Ms Burns says that the seats in the cinema are inherently dangerous and alleges negligence by reason of: · the failure to provide seats that remained in the down position; · provision of seats that were dangerous; or · provision of seats that would rise without weight. Secondly, she says that the design of the supporting structure rendered the seat dangerous and that the defendant was negligent by: · allowing a seat to be used with a projecting obstruction which could have been eliminated by a better engineering design namely the provision of a simple hinged device that has a locating point on the underneath section of the seat; · failing to provide a seat with a simple hinge device that has a locating point on the underneath section of the seat; · failing to cover the projecting obstruction with a high density rubber or foam; · failing to provide a mounting hinge assembly that was flat and free of sharp edges and does not to [sic] protrude and provide and cause a hazard; or · failing to provide fixed seats that were not able to be raised automatically with springs. Dr Emerson expressed his opinion that: implementation of the following countermeasures would have enabled the Plaintiff to successfully avoid injury. · Provide a proper mounting hinge assembly that is flat and free of sharp edges and does not protrude and cause a hazard. · The projecting obstructions should be covered with a high density rubber or foam to minimise the potential for injury. · The seating could be fixed and the seats not able to be raised automatically with springs. · Provide a sign indicating to patrons that seats have an automatic return to the upright position. Dr Emerson does not offer any details on the availability, cost or efficacy of the design modifications that he suggests. There is no evidence as to the availability, cost or efficacy of any of these alternatives, or design modifications; nor whether implementing any of them would have prevented the injury that Ms Burns sustained in the circumstances that came about on 17 March 1997. My findings about Ms Burns' angled descent into the pedestal are such that the evidence does not permit me to conclude that there would have been a different result (or whether Ms Burns would have sustained the same injuries) if the supporting metal structure: (i) had 'been located closer to the underneath section of the chair without the need to project so far'; or (ii) had been 'covered with a high density rubber or foam'. On my findings, Ms Burns' fall was consequent upon her miscalculation as to the position of the seats following her mis-identification of the dimensions/location of the seat by touch. She would have collided with any such further recessed support nonetheless, or perhaps the (vertically inclined) edge of the upwardly pivoted seat or floor. I am able to make no finding as to the effect of any collision, whether upon Dr Emerson's hypothetical padded bar or lesser projecting support or indeed the floor. I am conscious that Ms Burns was sitting in the front row of the cinema and thus had available to her greater space in which to fall as she did. If she had been seated behind another row of seats, the reduced space available may have precluded her from falling as she did. I have therefore considered whether retractable seats of this type in the front rows were inherently dangerous by virtue of their positing in the front row as distinct from when positioned elsewhere. I do not find that provision of the (front row) retracting seating as provided with the metal supporting pedestal was unreasonable in the circumstances of the cinema and its commercial operations, including the circumstances in which Ms Burns attended. In reaching that conclusion, I have had regard [to] Justice McHugh's dissenting but rather cogent observations in Jones v Bartlett [(2000) HCA 56 at 104-6; 75 ALJR 1 at 17] as to the proper understanding of the majority judgment in Bankstown Foundry Pty Ltd v Braistina [(1986) 160 CLR 301 at 307] and determination of reasonable care (including that owed by an occupier of commercial premises such as this defendant) by reference to changing ideas of justice, developing knowledge, and increasing concern with community safety. I do not find that the (front row) seats were inherently dangerous by virtue of the fact that they retracted automatically when not under pressure. I do not find that the (front row) seats were inherently dangerous by virtue of the existence or placement or characteristic of the metal pedestal support structure. I find no relevant breach of duty by the provision of the (front row) retractable seats with the supporting metal pedestal attached to, and projecting as it did from, the underside of the upwardly pivoting seat base. I find no relevant failure to keep the premises as safe as reasonable care and skill could make them." 13 This brought the trial Judge to the plaintiff's claim based on lack of warning of "the dangers from seats folding when no weight was upon them" and "that the seats would rise should [the occupants] need to leave the seats for any reason". There was no such warning. 14 When she entered the cinema all the seats, other than those occupied, were upright. Thus her Honour said the plaintiff must have known that the seats were capable of being pivoted upright. She gave no evidence as to how she thought the seats came to be upright, but she was in an unfamiliar environment. When she came back to the seat she located it by touch. Having found that the seats were not inherently dangerous Judge Gibb held that it was not unreasonable for the defendant to expect that a cinema patron coming upon an upturned seat would realise that the seat might again upend itself as this one did. 15 The plaintiff was permitted to re-open her case. She said that had there been signs to warn her she would have been aware that the seat would retract and would have made sure that it was completely down, and held it down, before she sat down. Judge Gibb did not accept this evidence as having any weight or credibility. Her Honour was not satisfied that possessed of knowledge that the seats retracted by way of express warning, the plaintiff would have ensured that the seat was down before seating herself when she was holding a struggling four year old child and manoeuvring between the wheelchair and the other child seated in the bean bag to her left. 16 On liability her Honour's reasons finished as follows: "Ms Burns is an intelligent and capable woman, and she honestly concedes that she would have seen the risk had she looked. I accept that she did not see the need to look. But she located her seat by touch and she may have done the same if she had known that the seats retracted automatically and she was in the same position struggling with Joshua. I cannot draw the relevant inference merely because it assists her case. As Chief Justice Jordan noted in Carr v Baker [(1936) 36 SR (NSW) 301 at 306]: It is not sufficient that there should be some ground for conjecturing that the fact exists. There must be evidence affording ground for treating it as existing as a matter of inference and not of conjecture. I draw no inference sufficient to support [for] the plaintiff's allegation of negligence by reason of lack of a warning. I am not satisfied that a warning would have had any impact upon Ms Burns' consciousness or conduct in the circumstances. I do not find that had a warning been given, Ms Burns would have done other than as she did, with the same consequence. Assuming (although this is speculative) Ms Burns had read a warning to the effect that the seat pivoted upright automatically when not under pressure, I am not satisfied that Ms Burns would have acted upon such a warning and desisted from pursuing the course of conduct she adopted - relevantly seeking to seat herself without looking directly at her seat, holding the struggling Joshua in one arm across her chest, and locating the seat by touch. The plaintiff's claim of negligence by reason of lack of warning fails."

Appeal 17 The plaintiff has appealed from Judge Gibb's decision and seeks to have the verdict and judgment set aside. The notice of appeal contained twelve grounds. These grounds were in many cases inappropriate or not pressed in argument (1, 2, 3, 5, 6, 7 and 10). The remaining grounds were: "Her Honour erred 4. in finding there was no need for any warning or duty to issue such; 8. in rejecting the Appellant's evidence as to what she would have done if a warning had been given; 9. in concluding that if a warning had been given the Appellant would not have done other than she did with the same consequences; 11. in not finding the Respondent was negligent and that such negligence caused the Appellant's injury; 12. in not finding the Respondent had failed to keep the premises as safe as reasonable care and skill could make them and that such failure had caused the Appellant's injury." 18 The plaintiff was found to have no recent or remembered experience in a cinema. She did not know that the seats in the Bankstown cinema complex retracted when pressure was taken off them. In common experience, though not usually in cinemas or theatres, seats can be found where the seat rest has to be lowered to sit on and does not retract when the sitter stands. There is an obvious risk in a darkened cinema that if a patron is not aware that the seat automatically retracts when the patron stands up and believes it is still in place, the patron will attempt to sit without putting the seat down. The risk of injury is similar to that when a seat is pulled away as someone goes to sit on it. 19 The plaintiff relied upon the oft quoted statement of Mason J (as his Honour then was) in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 based on what Lord Reid had said in the "Wagon Mound" (No 2) [1967] 1 AC 617 at 643-4. The defendant accepted it owed a duty of care to the plaintiff while she was on the premises of the Bankstown cinema complex. "The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk": Hackshaw v Shaw (1984) 155 CLR 614 at 663; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. Judge Gibb cited Wyong Shire Council v Shirt but was diverted by the plaintiff's submission that it was not apposite because the defendant had invited the plaintiff into premises maintained for profit that were "inherently dangerous". Judge Gibb did not address the question whether a reasonable person in the position of the defendant would have foreseen that some patrons returning to their seats in the dark might have assumed that the seats were still down as they left them because they did not know or realise that the seats were automatically retractable. 20 It is common knowledge that cinema patrons often come to and leave and then return to their seats during the presentation of the film when the interior of the cinema is dark. I have no doubt that a reasonable person conducting a cinema where patrons are accommodated on seats which automatically retract would foresee a risk of injury to patrons returning to their seats in the dark not knowing and unable to see, because of the dark, that their seats have retracted. So far as the evidence went an event like the present has not previously occurred. The chance of its occurring may be slight but the risk of injury if it does occur is substantial. In particular this is so because the patron, in attempting to sit where the retracted seat is not, may, as the plaintiff did, come into contact with the metal pedestal. This may present a greater risk of injury than if she had simply fallen on to the floor. 21 As I have said, neither Dr Emerson nor Mr Eager were cross-examined. In the passage I have quoted, Dr Emerson suggested four counter measures which he said would have avoided injury to the plaintiff. One of these was the provision of a sign indicating to patrons that seats retracted automatically to the upright position. This evidence was not challenged by Mr Eager or by the defendant's counsel. Judge Gibb said that Dr Emerson did not offer any details on the availability, cost or efficacy of the design modifications he suggested and that there was no evidence whether their implementation would have prevented the plaintiff's injury in the circumstances of it. However Dr Emerson said that it would and was not challenged. 22 Whatever may be the deficiencies in the evidence about the cost or effectiveness of the suggested modification to the seats, the display of a warning to patrons in the foyer before entering the cinema and in the cinema was a simple matter; for example "Take care. Seats retract automatically. Ensure your seat is down before you sit". 23 Judge Gibb did not accept the plaintiff's further evidence, when recalled, that she would have acted otherwise if she had seen a warning. But there is an overwhelming inference that a person, who did not know from observation or experience that the seats retracted automatically when she stood up but who read on a warning notice that they did, would have included that added piece of knowledge in the thinking processes in play when returning to the seat and would have taken care to ensure that the seat was down before she sat. Compare Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 452 and 483. This is not a case in which the impetuous nature of the plaintiff's conduct was such that it was unlikely that a mere sign would have deflected her from putting the seat down before she sat. The fact that the most upright plaintiff's recollection, after suffering a disaster, may move in the direction of saying that if only they had been warned they would have done something else, does not rule out a finding that they would, even if the evidence itself may be regarded as of less weight in the circumstances in which it was given. As Judge Gibb pointed out, the plaintiff was an intelligent and capable woman. Her Honour said: "I accept that she did not see the need to look. But she located her seat by touch and she may have done the same if she had known that the seats retracted automatically and she was in the same position struggling with Joshua." 24 The plaintiff did not see the need to look because she did not know that the seats retracted automatically. Had she known they did, and that was the point of the warning, the inference is she would not have attempted to sit down with a small child in her arms without being satisfied that the seat was down. 25 In my opinion, on the material placed before the District Court there should have been a verdict for the plaintiff. The parties are content that we should determine the question of liability and remit the matter to the District Court for the assessment of damages. Judge Gibb went somewhere along the line in considering the damages calculations. But she had not reached a point where it is possible for this Court to turn those calculations into an assessment. Accordingly, it is better that that aspect of the matter be re-tried, though one would hope that, with the benefit of what Judge Gibb said, the parties could reach agreement on damages.

Orders 26 I propose the following orders: 1. Appeal allowed;

2. Set aside the verdict and judgment of Judge Gibb of 20 February 2001;

3. In lieu thereof verdict and judgment for the plaintiff in an amount to be assessed;

4. Remit the matter to the District Court for a new trial limited to the assessment of damages;

5. The respondent to pay the appellant's costs of the appeal and of the hearing before Judge Gibb. 27 HEYDON JA: I agree with Sheller JA. 28 IPP AJA: I agree with Sheller JA.

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