Calin v Greater Union Organisation Pty Ltd

There was no usher or usherette in attendance as they entered. Romeo and Constantin preceded the appellant. They went down the aisle. The aisle had no steps. They heard a cry from the appellant and found her in a position on the floor of the aisle. She was in pain. The appellant claims that she had slipped on a banana skin and that there was a failure to take care on the part of the respondent in not having removed it.

In her statement of claim the appellant claimed that she was a contractual entrant on the respondent's premises and that it was an implied term of the contract that the premises were as safe for the purpose of her watching the film as reasonable care and skill could provide. The appellant asserted that, in breach of the agreement, the respondent by its servants and agents failed, amongst other things, to keep the aisle clean and free from food and refuse, to regularly clean the aisle, to provide adequate lighting in the aisle and to insist that an employee direct patrons to their seats by torchlight when the cinema was in darkness. In the alternative, the appellant asserted that she was an invitee on the respondent's premises and that the food and refuse in the aisle constituted an unusual danger of which the respondent knew or ought to have known. Again, in the alternative, the appellant asserted that the respondent was in breach of a common law duty of care. All these allegations were traversed by the respondent in its defence.

The action was heard by Finlay J. and a jury. It was common ground that the respondent was the occupier and operator of the cinema at all material times. Notwithstanding the three ways in which the appellant's claim was pleaded, the trial judge put the appellant's case to the jury as one of negligence, the respondent's duty being to take reasonable care to avoid a foreseeable risk of injury to the appellant. The appellant's counsel did not seek further directions with a view to seeking a verdict on the other bases pleaded in the statement of claim; nor were further directions sought on any matter relevant to the issue of liability. The jury returned a verdict for the respondent.

The appellant appealed to the Court of Appeal seeking, inter alia, to have the verdict set aside on the ground that it was against the evidence and the weight of evidence and that it was perverse. The appeal was dismissed. The appellant has appealed to this Court, contending that the Court of Appeal, in reviewing the evidence, failed to apply a standard of care appropriate to a contractual warranty when considering whether the verdict was perverse and failed to take into account any evidence in favour of the appellant in deciding that issue. In argument it was made clear that the word "perverse" was used in the sense of "against the evidence and the weight of evidence". The appellant also contended that the trial judge failed to direct the jury in accordance with the proper standard of care.

At the outset it is convenient to review the evidence. According to evidence given by the appellant's son, when the appellant fell, a male patron who offered to assist produced a banana peel. It was said to have been found in the vicinity of the appellant. There was, the son said, another peel beneath the appellant as she lay in the aisle. He also gave evidence that there were peanut shells, ice cream papers and papers from sweets on the floor near the appellant. He stated that, when he came down the aisle, he did not notice anything on the floor because the cinema had been in entire darkness when he entered.

On the other hand, Miss Marchant, the usherette, who was called by the respondent, said that the footlights on alternate sides of the aisle were on. She stated that, at the end of each session and, in particular, at the end of the session commencing at 2 p.m., she walked up and down the aisles to see if there was any rubbish. If there was any rubbish, she either picked it up or, if it was paper, kicked it under the seat. On the day in question, the 2 p.m. session ended at 4.20 p.m. According to Miss Marchant, her inspection of the cinema took perhaps five minutes; she could not remember entering any of the rows. There was not much rubbish at that time because there were not many people in attendance at the afternoon session, perhaps no more than thirty, and there were not very many at the 5 p.m. session. She was outside the auditorium when the appellant and her companions entered. When she entered the auditorium, she did not see any banana peels in the vicinity of the appellant who was lying in the aisle. Miss Marchant gave evidence that she did see pistachio shells all around the floor but that she had not seen them when she cleaned the aisle before the 5 p.m. session. Miss Marchant's responsibilities extended to the Paramount Theatre next door; it was also operated by the respondent.

Mr. Callaghan, the assistant manager of the cinema, gave evidence that the respondent conducted the two cinemas as a combined operation. He said that the width of the aisle in the Rapallo Cinema was three or four feet and that it was covered with a new maroon carpet, there being footlights on both sides placed alternately at the end of the rows. Cleaners were employed to clean the theatre at the end of the last session of the day but cleaners were not employed during the day.

The appellant submits that the trial judge should have directed the jury on the footing that, if an occupier of premises agrees for reward to allow a person to enter the premises for some purpose, the occupier impliedly warrants that the premises are as safe for the purpose as the exercise of reasonable skill and care can make them. There is substantial authority in support of this proposition [1] . More recently, in Australian Safeway Stores Pty. Ltd. v. Zaluzna [2] , this Court held, by majority (Mason, Wilson, Deane and Dawson JJ., Brennan J. dissenting), that, in an action for negligence against an occupier, it is necessary to determine only whether, in all the relevant circumstances, including the fact of the defendant's occupation of the premises and the manner of the plaintiff's entry upon them, the defendant owes a duty of care under the general principles of negligence. In other words, it is not necessary to consider whether a special duty is owed to a particular class of entrant. However, the Court had no occasion to examine, and did not examine, the principles of the common law governing the liability of an occupier of premises who agrees for reward to allow a person to enter the premises for some purpose. In this situation, it would not be right to treat Zaluzna and the decisions which preceded it [3] as authorities which overruled the principle established in Watson v. George. In view of our ultimate conclusion that the trial judge's direction to the jury was adequate to cover the respondent's duty under any implied contractual term, we are prepared to assume that, notwithstanding the applicability of the ordinary duty of care of the law of negligence, a contractual term to the effect suggested on behalf of the appellant can be implied from the sale and purchase of the cinema tickets.

1. Key v. Commissioner for Railways (1941), 41 S.R. (N.S.W.) 60, at pp. 65-66, per Jordan C.J.; Watson v. George (1953), 89 C.L.R. 409, at p. 415, per Williams A.C.J.; Maclenan v. Segar , [1917] 2 K.B. 325; Francis v. Cockrell (1870), L.R. 5 Q.B. 501, at pp. 509-510, per Martin B. 2. (1987) 162 C.L.R. 479. 3. Hackshaw v. Shaw (1984), 155 C.L.R. 614 and Papatonakis v. Australian Telecommunications Commission (1985), 156 C.L.R. 7.

Although the appellant's son purchased her ticket for her, the respondent does not suggest that, as a result of this action, no contract came into existence between the appellant and the respondent. That is not surprising. InVoli v. Inglewood Shire Council [4] no distinction was drawn between the purchaser of a ticket and the holder of a ticket which was purchased on his or her behalf by someone else [5] . As we have pointed out, the appellant's counsel at the trial did not seek a direction in accordance with Watson v. George. Nor did the appellant's counsel contend before the Court of Appeal that the trial judge had put the case to the jury inadequately by failing to instruct them on the issue of contractual liability. Notwithstanding the absence of a request for a redirection, the Court of Appeal has power to order a new trial on the ground of misdirection or on the ground that the verdict of the jury was not taken upon a question which the trial judge was not asked to leave to the jury if it appears to the Court of Appeal "that some substantial wrong or miscarriage has been thereby occasioned" [6] .

1. (1963) 110 C.L.R. 74. 2. ibid., at pp. 92-93, per Windeyer J. 3. Supreme Court Rules (N.S.W.), Pt 51, r. 16(1)(a) and (c).

Hence, according to the rule, as under the general law, there is no rigid principle of law or practice which precludes the making of an order for a new trial when a party fails to seek a direction or raise a point at the trial. The court's jurisdiction to order a new trial depends upon the demands of justice. But what is done or omitted to be done at the trial is an important consideration and will affect the exercise of the court's jurisdiction [7] . In conformity with that principle, the Court of Appeal has taken the view that, in the application of the rule, while the failure to seek a direction is not necessarily fatal to an application for a new trial, it is a most material matter to be taken into consideration in the exercise of the court's jurisdiction [8] .

1. See Burston v. Melbourne and Metropolitan Tramways Board (1948), 78 C.L.R. 143, at pp. 158-159, per Starke J.; p. 167, per Dixon J.; General Motors-Holden's Pty. Ltd. v. Moularas (1964), 111 C.L.R. 234, at pp. 242-243, per Barwick C.J.; p. 245, per Taylor J.; p. 257, per Menzies J.; pp. 259-260, per Windeyer J. See also University of Wollongong v. Metwally [No. 2] (1985), 59 A.L.J.R. 481, at p. 483; 60 A.L.R. 68, at p. 71; Coulton v. Holcombe (1986), 162 C.L.R. 1, at pp. 7-8; Water Board v. Moustakas (1988), 62 A.L.J.R. 209, at p. 211; 77 A.L.R. 193, at p. 196. 2. Eggins v. Brooms Head Bowling and Recreational Club (1986), 5 N.S.W.L.R. 521, at pp. 524-525, per McHugh J.A.; Morawski v. State Rail Authority (1988), 14 N.S.W.L.R. 374, at p. 381, per Clarke J.A.

It follows that the Court of Appeal had a discretion to grant a new trial if it appeared that substantial wrong or miscarriage had been occasioned by the omission to take the jury's verdict on the issue arising from the respondent's contractual liability, notwithstanding the failure of counsel to seek a direction upon the point. Of course, the question was not agitated in the Court of Appeal and that circumstance presents an additional complication in this Court. Because the Court of Appeal was not asked to deal with the question, it cannot be said that their Honours dealt with that aspect of the case erroneously. In ordinary circumstances the failure of a party to raise a point in the court below would result in a refusal by this Court to grant special leave to appeal with respect to that point. However, every case must depend upon its own facts and in this case there has been a grant of special leave to appeal which has not been restricted. In this situation, it is preferable that we should consider the substantive question sought to be raised rather than seek to exclude it by reference to the way in which the case was conducted at the trial and before the Court of Appeal.

The substantive question is whether the failure to obtain the jury's verdict on the contractual basis of liability occasioned a substantial wrong or miscarriage. The trial judge, in instructing the jury on the common law duty of care in negligence, said:

Here, the plaintiff was a lawful entrant, whose ticket had been paid for to the commercial benefit of the defendant. The measure of the discharge of the duty is what a reasonable man would, in the circumstances do, by way of responsibility to foreseeable risk of injury to such a patron. So the duty may be very shortly and very simply described as this: the duty on the part of the defendant to the plaintiff is to take reasonable care to avoid a foreseeable risk of injury to the plaintiff. Let me repeat that. The duty on the part of the defendant to the plaintiff is to take reasonable care to avoid a foreseeable risk of injury to the plaintiff. His Honour went on to instruct the jury as to the various ways in which the appellant alleged that the respondent was in breach of that duty. No exception is taken to the summing up in that respect.

The case for the appellant is that a direction to the jury formulated in accordance with the law as stated in Watson v. George [9] would have been more favourable to the appellant than the direction which we have just set out. Mr. Jackson Q.C. for the appellant endeavours to support this case with the submission that, if the issue had been put to the jury as a breach of implied warranty, the question for them would have been whether the premises were as safe as reasonable care and skill on the part of anyone might make them. However, it is conceded that in this context the reference to "anyone" is no more than a reference to a person operating a cinema. Once this is accepted, it follows that, in the circumstances of this particular case, it would have made no difference had the trial judge directed the jury in accordance with Watson v. George. The trial judge made it clear to the jury that the reasonable care expected of the respondent was the reasonable care expected of the operator and occupier of a cinema. Indeed, in a sentence in his summing up, seven lines before the passage which we have already quoted, the trial judge had made a statement linking the duty to take reasonable care with the respondent in its capacity as the "operator and occupier of a cinema".

The implied warranty and the common law duty of care may have different consequences when it comes to questions of contributory negligence and the liability of independent contractors. But those questions did not arise here. Accordingly, we are not persuaded, in the particular circumstances of this case, that the omission to seek the jury's verdict on the issue of breach of implied warranty occasioned a substantial wrong or miscarriage.

We turn now to consider the appellant's challenge to the decision of the Court of Appeal on the ground that their Honours erred, when considering whether the jury's verdict was against the evidence and the weight of evidence, in "accepting the case of the respondent at its highest", to repeat the words of Kirby P., with whom both Samuels and Meagher JJ.A. agreed. In his reasons for judgment, Kirby P. said:

In order to secure the relief which she claims the appellant must show that the jury's verdict was, as it is sometimes put, perverse or as more usually stated nowadays, that the verdict was not open to the jury on the evidence which was placed before it at the trial. This statement, according to the appellant's argument, may have directed attention away from the correct principle. The correct principle is that a court on appeal may order a new trial if the jury has reached a conclusion which is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach.

Authority in this Court and in other jurisdictions supports the appellant's submission [10] . It should be noted that, in Hocking v. Bell, Dixon J. drew a distinction between cases, on the one hand, in which the verdict is vitiated by some legal error, such as material misdirection or misreception of evidence, or was perverse in the sense that the jury disregarded the judge's direction and, on the other hand, cases where, on conflicting evidence, a verdict is found which is said to be against the weight of evidence [11] . In the cases last mentioned, as Starke J. noted, "the verdict is not disturbed unless the jury, viewing the whole evidence reasonably, could not properly find it" (emphasis added) [12] . The party seeking a new trial on this ground needs an exceptionally strong case because it must be shown that "the evidence so preponderates against the verdict as to shew that it was unreasonable and unjust" [13] .

1. Hocking v. Bell (1945), 71 C.L.R. 430, at pp. 440, 442, per Latham C.J.; p. 468; per Rich J.; p. 487, per Starke J.; p. 499, per Dixon J.; Brooker v. Roszykiewcz (1963), 37 A.L.J.R. 246, at p. 248, per Kitto J.; p. 250, per Taylor J.; p. 251, per Menzies J.; Jones v. Spencer (1897), 77 L.T. 536; Metropolitan Railway Co. v. Wright (1886), 11 App. Cas. 152; Phillips v. Martin (1890), 15 App. Cas. 193. 2. (1945) 71 C.L.R., at p. 499. 3. ibid., at p. 487. 4. Metropolitan Railway Co. v. Wright (1886), 11 App. Cas., at p. 155.

Mr. Jackson submits that a reading of the reasons for judgment of Kirby P. demonstrates that his Honour was at pains to relate the evidence given for the respondent and to say that, if that evidence were accepted, it would be sufficient to sustain the verdict; in other words, his Honour did not review the whole of the evidence and address the question: was the totality of the evidence such that the verdict was against the weight of the evidence? The short answer to this submission is that this was not a case in which there was conflicting evidence as to the circumstances in which the accident occurred or as to the condition of the cinema and the way in which it was operated and conducted by the respondent. Kirby P. appears to have accepted the version given by the appellant's witnesses of the circumstances in which the accident happened, then to have reviewed the respondent's evidence of its system and to have concluded that it was open to the jury acting reasonably to have found that the system was a reasonable discharge of the respondent's duty of care. It is important to note that the appellant called no evidence to contradict the respondent's evidence of the steps which it took with reference to the lighting, cleaning and operation of the cinema. Furthermore, to judge from the trial judge's summing up, the contest on this aspect of the case was not so much whether the respondent's witnesses should be accepted but whether the steps to which they deposed were a sufficient discharge of the respondent's common law duty. In these circumstances and in light of the jury's verdict, it was legitimate for the Court of Appeal to accept the respondent's evidence at its highest in considering whether the verdict was against the evidence and the weight of evidence.

It was for the appellant to demonstrate that the only conclusion at which the jury could reasonably arrive was that the respondent had failed to exercise reasonable care by reason of the inadequacy of any system to ensure that objects, such as that on which the appellant claimed to have slipped, were removed. The principal features of the operation of the cinema on which the appellant relies were: (a) the darkness of the auditorium when the appellant and her companions entered it; (b) the absence of the usherette at that time; (c) the absence of a cleaner during the day; (d) the cursory nature of the inspection undertaken by Miss Marchant at the end of the session beginning at 2 p.m.; and (e) the lapse of time (forty minutes) between that inspection and the beginning of the 5 p.m. session and the possibility that, during that time, patrons arriving early would throw rubbish on the floor.

Granted the force of these considerations when considered collectively, we do not consider that they compel the conclusion that the jury could not reasonably find that the appellant failed to show that the respondent was in breach of its common law duty of care. In the context of Miss Marchant's evidence that there were not very many people at either the 2 p.m. or the 5 p.m. session, that she checked the aisle for rubbish between the two sessions and that the footlights lighting the aisle were on, it was, in our view, open to the jury to conclude that the appellant had not shown that the system adopted by the respondent as occupier and operator of the cinema fell short of what was reasonably required to avoid the risk of such an injury as the appellant claimed to have suffered.

In Maclenan v. Segar [14] , McCardie J. held that a warranty relating to the safety of premises is implied in a contract between an occupier of the premises and a person who enters under contract. He defined the content of the warranty as follows [15] :

Where the occupier of premises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties (unless it provides to the contrary) contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of any one can make them. The rule is subject to the limitation that the defendant is not to be held responsible for defects which could not have been discovered by reasonable care or skill on the part of any person concerned with the construction, alteration, repair, or maintenance of the premises But subject to this limitation it matters not whether the lack of care or skill be that of the defendant or his servants, or that of an independent contractor or his servants, or whether the negligence takes place before or after the occupation by the defendant of the premises. This Court adopted that statement as a correct statement of the law in Watson v. George [16] . The phrase "reasonable care and skill on the part of any one" relates, as the context shows, to reasonable care and skill on the part of an independent contractor or his servants as well as on the part of the occupier or his servants. The implied warranty extends to "repair" and "maintenance" as well as to "construction" and "alteration". "Maintenance" includes the cleaning of premises, where cleaning is required to maintain the safety of the premises for persons entering under contract. 1. [1917] 2 K.B. 325. 2. ibid., at pp. 332-333. 3. (1953) 89 C.L.R. 409, at p. 424.

Consistently with the implied warranty, the common law imposes a duty on the occupier which can be formulated in accordance with McCardie J.'s formulation of the implied warranty, subject to a qualification. His Lordship stated a warranty in terms of the level of safety of the premises ("as safe as reasonable care and skill can make them") and that formulation may imply a warranty that no further exercise of reasonable care and skill could improve their safety. Whether that is the meaning of the term to be implied or not - indeed, whether or not a term is to be implied at all - the duty of care which the common law imposes on an occupier of premises towards a person entering the premises under contract is no more than a duty to exercise reasonable care and skill. And, before a liability in tort arises, there must be a breach of that duty of care by someone [17] . However, we need not be concerned in this case with the question whether an occupier who engages an independent contractor is necessarily in breach of his duty if the independent contractor be careless [18] . The occupier's duty, to whomsoever it falls to discharge it, is to use reasonable care and skill to make the premises safe for the purpose contemplated by the occupier and the person entering them under contract. In cases in which a plaintiff who has entered under contract alleges that his damage was caused by some failure on the part of the defendant or his servants to maintain premises in a safe condition, the observation of Fullagar J. in Watson v. George [19] is in point:

the whole question will resolve itself practically into a question whether the defendant or a servant of the defendant has been guilty of negligence in connection with the source of danger and damage. This is such a case. 1. Watson v. George (1953), 89 C.L.R., at pp. 424-425, per Fullagar J. 2. Voli v. Inglewood Shire Council (1963), 110 C.L.R. 74, at pp. 94-98, per Windeyer J. 3. (1953) 89 C.L.R., at p. 425.

The plaintiff was a lawful entrant under contract in the occupier's theatre. Her ticket had been paid for. The circumstances of the case, which are set out in detail in the reasons for judgment of Mason C.J., Deane, Toohey and McHugh JJ., are that the plaintiff, while moving down an aisle to a seat in the theatre during the screening of a picture, allegedly slipped and fell. Her case was that she slipped and fell on a banana skin which should not have been there. The question submitted to the jury was: "Has the plaintiff proved the defendant negligent?" This question was understood by the trial judge and by counsel for the parties (who raised no objection to the question or to the way in which it was explained in the summing up) as relating to the alleged breach by the defendant of its common law duty of care owed to the plaintiff. The trial judge directed the jury that the occupier's duty was "to take reasonable care to avoid a foreseeable risk of injury to the plaintiff". He pointed out that the plaintiff's entry was for the commercial benefit of the defendant and he stated the measure of the defendant's duty as being "what a reasonable man would, in the circumstances, do by way of responsibility to foreseeable risk of injury to such a patron".

In a case where the alleged source of danger to the plaintiff was a banana skin dropped on the floor of the theatre and not found and removed before the plaintiff slipped on it, I see no disconformity between the sense of the direction given and the duty of care imposed by law upon the occupier of a theatre towards a patron who enters that theatre under contract for the purpose of viewing a motion picture. As the case was obviously fought on the issue of breach of a duty of care, not on the issue of breach of warranty, there was no misdirection. No application for redirection at the trial was warranted. The problem of raising on appeal an issue of misdirection when no application for redirection has been made at the trial does not arise. The trial judge drew the jury's attention to the negligence alleged by the plaintiff, namely, a failure to provide a reasonably safe system for cleaning up refuse dropped in the theatre. (Another pleaded particular of negligence was a failure to insist that potentially hazardous foodstuffs, e.g. bananas, were not brought into the theatre but that issue was not pursued in evidence or by cross-examination.) The jury's verdict negatived negligence.

The onus of proof of negligence rested, of course, on the plaintiff and the circumstances of her fall were primarily within the knowledge of the plaintiff (who did not give evidence) and her husband and son (who did). It was for the jury to assess the truth of the explanation of the accident advanced by the plaintiff's case and the strength of any inference that want of reasonable care was responsible for whatever immediately caused the plaintiff to fall. The plaintiff contends that the jury's verdict that the defendant was not negligent was perverse or was against the weight of the evidence in the sense that the decision was one which, in the light of the whole of the evidence, the jury could not reasonably find [20] . Hocking v. Bell was a case where (as it was ultimately held [21] ) there was some evidence which supported the jury's verdict in favour of the plaintiff. The defendant attacked the verdict as perverse having regard to the strength of the defendant's case. In the present case, the jury found against the plaintiff and, as Latham C.J. said [22] , "the question whether or not the evidence for that party [the party on whom the onus of proof lies] should be believed is essentially and necessarily a matter for the jury." A jury is not bound to accept particular evidence or to draw an inference from particular evidence merely because there is nothing in the rest of the evidence plainly inconsistent with it. A reasonable jury might have failed to be satisfied that the plaintiff slipped on a banana skin or might have refused to find that there was any want of reasonable care on the part of the defendant adopting the system it had for dealing with refuse dropped on the floor.

1. Hocking v. Bell (1945), 71 C.L.R. 430, at pp. 444, 468, 486, 499, 503. 2. (1947) 75 C.L.R. 125. 3. (1945) 71 C.L.R., at p. 442.

There was no substantial conflict between the evidence adduced for the plaintiff and the evidence adduced for the defendant; indeed, there could hardly have been any for the witnesses were speaking of different matters. This is not a case in which there is conflicting evidence, some of which if uncontradicted would support a verdict for the plaintiff. The evidence is such that a verdict for the plaintiff depended upon the jury's acceptance of the evidence adduced by the plaintiff and upon the drawing of an inference of negligence from the primary facts established by the evidence. If the plaintiff failed on either of these issues, the defendant was entitled to a verdict as a matter of law. Therefore either the verdict was such that a reasonable jury might have found it [23] or the jury was bound to find for the plaintiff. In this case (unlike the situation discussed by Latham C.J. in Hocking v. Bell [24] ) it would be impossible to hold that a verdict for the defendant was unreasonable unless, on the whole of the evidence, the plaintiff is entitled to a verdict in her favour. But, where the burden of proof is on a party who fails before a jury, the verdict cannot be set aside and a contrary verdict entered unless the jury could do nothing else but find in accordance with that party's contention. It is not sufficient to show that that party has made out a strong case [25] . Here, the jury might reasonably have refused to be satisfied about one or more of the issues on which the plaintiff bore the onus of proof.

1. Hocking v. Bell (1945), 71 C.L.R., at p. 440; Metropolitan Railway Co. v. Wright (1886), 11 App. Cas. 152. 2. (1945) 71 C.L.R., at pp. 442-443. 3. Commissioner for Railways v. Small (1955), 29 A.L.J. 370; and see Shepherd v. Felt and Textiles of Australia Ltd. (1931), 45 C.L.R. 359, at pp. 379-380, and see s. 108(3) of the Supreme Court Act 1970 N.S.W..