Hoyts Pty Ltd v Burns

The instructions for the Bungy Rocket continued: " At this point the riders are given a thorough check by the Harness Person ". The next step provided for a further physical check by the Assistant Controller of the riders, their harnesses and the release mechanism. There was a further visual inspection made before launch. 16 Mr. Mirfin said that the reference to 5G and 4G in these scripts was "salesman's pitch" and was not an accurate statement of the actual acceleration. Having regard to Mr. Gibson's expert evidence, that would seem to be correct. Mr. Mirfin also said that notwithstanding the "sales pitch" in relation to the Slingshot, it needed less power to get it started than was the case with the Bungy Rocket. 17 Despite the instructions in the Operations Manual for the Slingshot, what actually happened on the appellant's two rides, and this appears to have been common practice, was as follows. The appellant had had one ride without incident. She was in the company of her husband, who sat in the right-hand seat. She remembered there being two operators. The appellant was told that the ride was videoed and the video camera was positioned at the top of the capsule. She said that the operator told them not to hold on to the car but to let go because it would heighten the thrill of the ride. 18 Having completed the first ride and having been offered a second ride at a reduced cost, the appellant and her husband decided to stay on for a second ride. She said that one of the operators then started joking about "cranking the ride up". She said that she understood by this they were saying they would make the ride go faster. She said she "asked him not to crank it up … I said to my husband 'Tell them not to crank it up'". She said that the operators went over to the controls and the ride started to tilt back. She said she again was calling out to the operator "Please don't crank it up, please don't crank it up". She said that she was "leaning out trying to look at him telling him 'Don't crank it up'". She described her physical actions "…lifting myself out of the chair and turning to the side … to [the] left". She said that she could see the operator but could not remember whether he was looking at her although she could remember him laughing. 19 The appellant's husband said that when they were being strapped into the capsule nothing was said by the operator about the positioning of the body leading up to the capsule being released. 20 The respondents' witnesses gave similar accounts of how they operated the machine. To the extent that their evidence directly met the appellant's evidence, it was consistent with her version of what happened. For example, Ms. Hircoe, whose position was described as the manageress of the Slingshot machine, said that people who ride the machine "can put their heads pretty much anywhere they want". She also said that they can put their arms and legs anywhere. She agreed that there was no instruction that their heads should be placed back against the headrest. The only instruction that might be given is that the riders might be told to keep their heads back so that their faces would be caught by the video. 21 It was never clearly ascertained on the evidence who was the operator of the machine on the day of the accident but both operators who were on duty on the day of the accident gave evidence. The first operator, Mr. Dickman, agreed that there was a selling pitch to encourage patrons to take a second ride which included telling the rider that the machine would be made to go faster and to spin more. He also encouraged them to move their arms and legs about. He agreed that the only reason for telling people to put their head back was so as to enable good shots on the video and that no warning was given of the need to keep the head back in the neck brace for safety reasons. The second operator, Mr. Abood gave evidence to the same effect, although he said that his practice was to in fact increase the speed on the second ride. 22 In the accident the appellant suffered a sequestrated disc lesion at C4/5 with marked cord compression and signal change. As a result she underwent a C4/5 anterior cervical fusion and internal fixation with a bone graft. The nature of the appellant's injury was the subject of consideration by Mr. Gibson. In his report dated 1 May 2003 he said that "disc prolapse in the cervical spine is seldom due to a single loading situation. It has been shown experimentally that the most likely loading to cause a prolapsed disc is a combination of flexion, axial rotation and a sudden compressive load in the neck". 23 Mr. Gibson concluded that the injury of the type sustained by the appellant was not consistent with the motion of the Slingshot ride in the neck of a normal healthy person for three reasons. First, the acceleration of the ride of 2.6G was below any accepted injury threshold. Secondly, the available data indicated that any injury at this acceleration was unlikely. Thirdly, an appropriately designed head restraint and lap belt system were used. 24 It was not in dispute in the case that the purpose of the head restraint was so as to cause the rider to have the neck in a braced position that in turn would virtually eliminate the possibility of injury. During re-examination Mr. Gibson was asked this question: "You were asked to make some assumptions, including that [the appellant] was attempting to speak and had her neck forward. Does the fact of holding the neck forward having (sic) any effect on bracing of the neck muscles?"

Mr. Gibson responded: "Yes. Effectively shifting your head forward is bracing in the sense that we have been discussing." 25 It is convenient to deal with these aspects of Mr. Gibson's evidence immediately. Senior counsel for the respondents submitted that the effect of Mr. Gibson's evidence in re-examination was that the appellant's neck was in fact braced notwithstanding that it was not back in the mechanical neck brace so that it was not foreseeable that there was risk of injury in this case. However, the proposition put to Mr. Gibson did not include another aspect of the appellant's posture at the time, namely, that she had her head turned at the same time. Nor did it take account of the movement of the appellant's neck as she attempted to gain the operator's attention. 26 It was also submitted that in this case there was no evidence of a compression load as there would need to be for there to be a foreseeable risk of injury. However, it is apparent from Mr. Gibson's evidence that the type of load to which the appellant's neck was subjected on the forward propulsion of the Slingshot was a compression load: see para. 50 of Mr. Gibson's report so that each of the components most likely to cause injury were present and operating on the occasion of the appellant's accident. 27 Further, although there was an appropriately designed head restraint it was not being appropriately used on this occasion. 28 Accordingly, the evidence in re-examination did not neutralise the evidence upon which the appellant relied to establish both foreseeability and so far as relevant to prove breach.

Appellant's case at trial 29 The appellant's case at trial was that although the Slingshot was not inherently unsafe there was a foreseeable risk of neck injury if a rider's neck was not properly positioned in the neck brace. Its manner of operation was all important. If the machine was operated in a way that took account of the risk of injury there would be no breach of the duty of care. A reasonable response of an operator in relation to the foreseeable risk to injury was to provide an instruction to keep the head back in the brace or, if it was noticed that the rider's head was not properly braced, not to release the capsule until the rider was properly positioned. It was also submitted that the requirement to give an instruction and to observe the riders to ensure the instructions were complied with had to be strictly adhered to.

Foreseeability 30 The trial judge considered that the concepts of "warning" and "foreseeability" were very much bound up with each other in this case. Her Honour ultimately concluded that even if the risk of injury was foreseeable the appellant's case on warning would have failed. Her Honour found however, that the risk of injury was not foreseeable. 31 It is well established that a person alleging there has been a breach of a duty of care must show that the kind of injury sustained was reasonably foreseeable: Wyong Shire Council v. Shirt (1980) 146 CLR 40 at 47; Tame v. New South Wales (2002) 211 CLR 317, 385, 397 and 401. As Gleeson CJ pointed out in Tame at 331, foreseeability may be relevant to all aspects of the tort of negligence namely duty, breach and remoteness of damage. 32 The foreseeability question in Tame related to the existence and scope of the duty of care. In Shirt the foreseeability issue arose in relation to the question of breach. In Shirt, Mason J, at p.47, drew a distinction between the foreseeability of the risk of injury and the likelihood of the risk occurring. His Honour pointed out that even though a risk of injury was unlikely to occur, it could still be plainly foreseeable. His Honour said: "Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far fetched or fanciful … In deciding whether there has been a breach of the duty of care the tribunal of fact must ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk." 33 In this case, the overall effect of Mr. Gibson's evidence was that if optimal conditions were in place when the ride was used the risk of injury was almost nil. However, he agreed with two propositions put to him by counsel for the appellant. First, he said that if the position was considered when the Slingshot machine first went into operation then, looking forward, during the course of its operational life, eventually and probably, there would be neck injuries. Secondly and most importantly, he agreed it was predictable, that if the ride was not carefully managed there was potential for neck injury. 34 There was also in evidence a report of Professor Hinghofer-Szalkay, a specialist in medical physiology from Austria who stated that so long as the specified design, operational and medical conditions were adhered to then operation of the Slingshot could be described as harmless. The trial judge said that she placed little or no weight upon Professor Hinghofer-Szalkay's report with one exception. That exception was to note "that very similar sideshow rides to the Slingshot have been in operation around the world for some years without incident". 35 In my opinion, I consider that her Honour erred in finding that the injury was not foreseeable. The effect of the evidence of Mr. Gibson and Professor Hinghofer-Szalkay was that provided the machine was operated in optimal conditions there was no or minimal possibility of harm. That evidence contained the implicit proposition that unless the machine was operated under optimal condition there was a foreseeable risk of harm. Mr. Gibson expressly acknowledged that this was so. It may be that her Honour's error arose in part at least from the fact that, in the passages from Shirt to which her Honour referred, she concentrated upon the issue of reasonable response to the risk. That this was her Honour's focus seems to be reinforced by her Honour's reference to the passage from the judgment of McHugh J at [102] in Tame where his Honour stated the test of foreseeability in terms different from the other members of the Court. The other members of the Court applied the statement of Mason J in Wyong Shire Council v. Shirt to which I have referred above.

Finding on breach 36 The trial judge made a number of findings that led to her conclusion that the respondent was not negligent. First, she noted the appellant's assertion that if she had been told to keep her head back in the neck brace for medical reasons she would have done so and avoided injury. She further noted that she was told to keep her head back so that she could be video-taped. However, her Honour found that the appellant "like Mrs. Burns in the Hoyts case" was distracted and unlikely to have recalled in that moment of distraction any such warning. 37 Her Honour also found that although she was sure the appellant would like to believe she would have kept her head back, she would still have taken the ride "expecting to be frightened" so that "the fact that in her fear she put herself in a position where, like Mrs. Burns, she suffered an injury, is not something which would have changed because of a warning.". Her Honour returned to her view that a warning would not have been effective to prevent injury in this case at [43]. She said: "The plaintiff, had no prior history of neck history and no more reason to pay attention to a warning to keep her head back for health reasons than she did to a warning to keep her head back so she could be videotaped. If the Slingshot ride was dangerous, it was at best dangerous in the same way that many other structures (notably staircases) have been held to be inherently dangerous." 38 In Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934, the respondent attended the appellant's cinema with a number of disabled children. The child for whom she had particular responsibility crawled away from her. The respondent left her seat to retrieve him. He was screaming and kicking and apparently continued to do so as she attempted to resume her seat. The respondent did not realise that the seat automatically rose when there was no weight on it and when she attempted to sit down, she fell and suffered injuries. 39 The respondent contended that there should have been a warning sign, that she would have had regard to that to alert her about the seat.

40 The High Court, in the joint judgment of McHugh, Gummow, Hayne and Callinan JJ, found at [26]-[27] that "the respondent was so distracted by the disturbed child when she sat down" that it was unlikely that she would have been conscious of the warning sign seen some time before.

41 Having likened the appellant to the "distracted" Mrs. Burns her Honour reiterated her view that this case was best determined on the warning issue, rather than on foreseeability. She said at [44]: "The plaintiff's case stands or falls on the simple assertion of a need for a warning to be given. As I have found that his warning would have made no difference, the foreseeability - statistically remote that it is - of any injury becomes irrelevant." 42 Her Honour stated that the appellant's case was that a practical response by the respondents to the foreseeability of injury would be to give a simple warning. Her Honour rejected that argument on the basis that the giving of a simple warning would have made no difference to the appellant who would still have ridden on the machine.

Appellant's case not dealt with by the trial judge 43 The appellant's case at trial was not based only on the need for a warning. Rather it was first: that there had to be both a clear and strict instruction given to riders that they should keep their neck positioned within the brace and that they should be told that it was necessary to do so because of a potential risk of injury; and secondly: that there should be strict supervision of riders to ensure the instruction was observed. This was put to the trial judge in clear terms at the outset. It was repeated to the trial judge in the appellant's written submission at trial. Oral closing submissions were not recorded but counsel for the appellant informed the Court that in the final address the case was specifically argued in those terms. This was not disputed by the respondents. 44 The trial judge did not decide the case on that basis. Rather, she decided the case on the basis that a reasonable response to the foreseeable risk created by the use of this machine was that there should have been a warning given and that a warning would not have prevented the appellant's injury. That was not the case advanced by the appellant. There was no relevant warning and there was no supervision. The appellant's accident occurred in circumstances where, although restrained in the harness, she was leaning forwards, turning her head, trying to get the attention of the operator when the machine was started. According to Mr. Gibson's evidence, her neck was in the maximal position in which injury was likely to occur. In those circumstances, the respondents breached their duty of care to the appellant in the manner in which the machine was operated. 45 In my opinion, the appellant was entitled to a verdict.

Costs 46 The appellant made an offer of compromise on 16 January 2004 and seeks an order for costs on a solicitor/client basis from that date: see District Court Rules Pt.39A r.25(4A). The appellant is entitled to such an order unless exceptional circumstances are shown as to why an order should not be made. The appellant also seeks an order for indemnity costs on the appeal on the basis of the making of that offer of compromise. The respondent has not responded to those applications and should have an opportunity to do so before the Court makes any order. 47 Accordingly, the appeal should be allowed and I would propose the following orders:

Set aside the verdict and judgment in the Court below.

Set aside the trial judge's order 2 as to costs.

Judgment for the plaintiff in the sum of $318,267.06 to date from 8 April 2004. Verdict accordingly.

The respondents to pay the appellant's costs at first instance and on appeal.

The respondents are to have a certificate under the Suitors Fund Act 1951 (NSW) in respect of the costs of the appeal if so entitled.

The parties are to file submissions in relation to whether costs should be on a solicitor/client basis from 16 January 2004 and whether the costs of the appeal should be on an indemnity basis as follows: a. respondents to file their written submissions by 31 January 2005. b. appellants to file submissions in reply by 7 February 2005. 48 BRYSON JA: I agree with Beazley JA. **********

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