43 GZELL J: I have had the advantage of reading the reasons for judgment of Meagher JA. Unfortunately, I do not agree with them.
44 The purpose of a seat in a theatre is to provide a base to sit on, a back to lean on and arms to rest upon. The base of the seats in the Hope Theatre sprang up against the seat back so soon as one rose. I am of the opinion that a reasonable person in the position of the appellant occupier of the theatre would have foreseen that this type of seat involved a risk of injury to members of the audience including the respondent.
45 There were a number of responses to the risk associated with the provision of this type of seating that were open to a reasonable occupier in the position of the appellant. One response was to construct the theatre so that the distance between seats was such that it prevented a person stepping forward. That course obviated the danger of a person not stepping back far enough before beginning to sit, thereby missing the upright edge of the seat base and falling onto the recessed metal pedestal. Dr Neil Adams, an ergonomist, said that normally in theatre seating, the space between the front of the seat and the back of the seat in front was so slight that people did not have room to step forward after standing.
46 That response was not adopted in this case. The respondent sat in the front row of an elevated area with a balustrade in front of her. When she rose to photograph her son, she took a number of steps forward but she failed to step back far enough to be prevented from falling by sitting on the upright edge of the seat base.
47 Phelan DCJ accepted the evidence of Dr Adams that it was to be expected that theatre patrons might stand for a variety of reasons and forget, or be unaware of, the fact that the seat base would automatically rise behind them as they stood. Dr Adams said there were reasonable preventative actions that could have been implemented.
48 One such measure advocated by Dr Adams was to put up a warning sign alerting patrons to the risk. He advocated a sign in front of a person before any attempt to sit. He said such a sign stating "check the seat before you sit" or "remember these seats flip up" would be very effective. Neither of the appellant's experts challenged Dr Adams' view of the effectiveness of a warning sign. His Honour accepted this evidence and that of the respondent that if there had been a warning about the seats, she would have taken notice of it. His Honour had the advantage of the appearance of the respondent and Dr Adams before him. In my view, he was entitled to accept their evidence and to find that the appellant had failed, adequately, to respond to the foreseeable risk of injury sustained by the respondent. It is not for this Court to supplant its notions of the effectiveness of signage for the findings of the primary judge.
49 I would not take judicial notice without inquiry that retractable seating is widespread in New South Wales. I would not be surprised if inquiry revealed that modern cinemas in the Sydney CBD have reverted to solid seating. I do not think that retractable seating in theatres is so generally known as to give rise to a presumption that all persons are aware of it (Holland v Jones (1917) 23 CLR at 149 at 153, Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 478-481).
50 The statistical information, both with respect to the Hoyts theatre chain and with respect to the Hope Theatre was criticized by Dr Adams as being incidental data only. It did not indicate how many people might have missed a seat and not suffered injury and how people might have missed a seat, suffered injury but not reported it.
51 With respect to the Hope Theatre, daily usage of a well-lit auditorium by students who might be expected to be familiar with the seating was a far different situation from an evening spectacle with a lit stage and a gloomy auditorium and a respondent with limited experience of retractable seating. So far as the Hoyts theatre chain was concerned, the distance between seats was likely to have been so slight as to have obviated the risk of injury of the type sustained by the respondent.
52 The respondent moved from Sydney to live on the South Coast in 1990, about the same time as the retractable seats were installed in the Hope Theatre and in the Hoyts theatre chain. The respondent had been to the Sydney Opera House to watch ballet and assumed she must there have had experience with retractable seats. But she had not been back to the Sydney Opera House in recent times. She recalled, in her youth, seats in the Cowra movie theatre that needed to be pushed up and she said she had been to a movie theatre in Nowra where the seats did not fold up. That was hardly a pattern of theatre going that would justify a finding that the risk of injury must have been obvious to the respondent or that she was guilty of contributory negligence.
53 In my view, the appellant created an unreasonable risk of harm to theatre patrons including the respondent. Unreasonable, because reasonable members of the community in the appellant's position would think the risk sufficiently great to require preventative action. Notwithstanding the statistical material, I am of the view that the probability of the risk occurring and the gravity of the damage that might arise if the risk occurred were such as to outweigh the expense and any difficulty or inconvenience in placing notices on the backs of seats.
54 His Honour was fortified in his conclusion by the decision of this Court in Burns v Hoyts Pty Ltd (2002) Aust Torts Reports 81-637. In that case the appellant, a teacher's aide who specialised in working with children with disabilities went to the theatre in charge of a disabled wheelchair-bound four year old who could nonetheless crawl. The theatre seats were retractable. In retrieving the child during the film and returning to her seat in the dark, she sat not realising that the base of the seat was upright and suffered a similar injury to her coccyx as did the respondent in this case. In the District Court, judgment was entered for the defendant. That decision was reversed on appeal. Sheller JA with whom Heydon JA and Ipp AJA agreed said:
"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."
55 In that case the appellant was allowed to re-open her case to adduce evidence that had there been signs to warn her, she would have been aware that the base of the seat would spring up and would have made sure that it was completely down and held down before she sat. Gibb DCJ did not accept this evidence as having any weight or credibility. Her Honour was not satisfied that possessed of knowledge that seat bases sprang up by way of express warning, she would have ensured that the seat base was down before seating herself.
56 Sheller JA considered it was a simple matter to erect a sign in the foyer of the cinema stating: "Take care. Seats retract automatically. Ensure your seat is down before you sit." His Honour went on to say:
"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."
57 The instant circumstances differ from Burns in one material respect. There, no evidence as to the efficacy of signage was adduced. In this case the unchallenged evidence of Dr Adams was that signage in front of a patron would have been very effective. This case does not suffer the difficulty upon which special leave to appeal to the High Court was granted in Burns - whether this court, which had not had the advantage of seeing the appellant, could replace the primary judge's inference with respect to the effectiveness of the signage with its own.
58 It was submitted for the appellant that Burns was distinguishable because of the lack of knowledge of the appellant in that case. She had no previous experience of retractable seating. Like the respondent in this case, however, she took her seat before the performance began in a lighted auditorium. She walked from an aisle towards the end of a row, put down the upturned seat base and sat on it. True it is that the respondent in this case accepted that she must have had experience with retractable seats but she had not visited the Sydney Opera House for some time before her accident and her childhood experience at Cowra was of a difference type of seating. While there was no direct evidence as to the lighting conditions in the Hope Theatre, his Honour found that the light in the auditorium was gloomy and that the stage was lit.
59 I do not regard these differences as sufficient to distinguish Burns from the instant circumstances. As I understand it, while it is up to this Court to determine whether it is bound by its previous decisions (Nguyen v Nguyen (1989-1990) 169 CLR 245 at 268), it has been determined that while not strictly bound to do so, this court will usually not depart from previous decisions (Fobco Pty Ltd v Harvey (1996) 40 NSWLR 454 at 462). I do not see any reason to depart from Burns.
60 The respondent suffered a substantial incapacitating injury. Phelan DCJ awarded her $903,811. It was not disputed by the respondent that the award could not exceed $750,000. The appellant argued that it should be substantially less.
61 His Honour accepted the evidence from the preponderance of doctors who saw the respondent that she was likely to suffer debilitating and disabling pain for the rest of her life. It was unlikely that in the long term she would ever get back to anything like full-time work. She had been a relief registered nurse and held a teacher's certificate from the Royal Academy of Dance specialising in teaching children and she also obtained a teaching diploma in dance history, anatomy and technique.
62 Standing as well as sitting she felt as though her coccyx would break. It was an explosive pain. She could bend with pain. She had bladder and bowel function problems with spasm and that pain was constant. Sexual relations were almost non-existent. Driving she found particularly uncomfortable. She did no dancing. She went to the movies but found it very uncomfortable. Her husband helped her with the housework. She had put on weight. She did not socialise very much. She swam and walked up to five kilometres a day depending on the pain levels. If the pain was bad she took shorter walks. Walking increased her pain. She sought qualification as a private investigator but this involved travel and being on her feet and in the end the practical difficulties were overwhelming. His Honour concluded that general damages should be assessed at $150,000. I would not disturb that finding.
63 So far as domestic assistance was concerned, Phelan DCJ had before him medical opinion that the respondent required three hours a day homework help, some childcare and help in the garden. His Honour's assessment at six hours per week for heavier housework should not be disturbed. The average of agency rates in evidence before him, justified his adoption of $25 per hour. His resultant figure of $26,850 was, in my view, justified. I say likewise for the $160,572 allowed for future care. His Honour adopted the same rate for the same period per week and reduced the result by 20% to reflect exigencies.
64 The respondent's earnings at the time of her injuries were $510 net per week. The evidence revealed there was readily available work and overtime for nurses. His Honour applied $510 to the period since her injury to arrive at $91,290, interest on which was $15,975. In my view he was entitled to take this course. With respect to future economic loss, his Honour adopted $710 per week, taking into account substantially increased earnings for nurses and the respondent's ability to teach multiple forms of dancing at a high level. His Honour applied the usual 15% discount for exigencies in arriving at the figure of $430,812. I would not upset this calculation.
65 In my view judgment for the respondent for $750,000 is justified. I would allow the appeal to the extent of reducing the verdict and judgment below to $750,000. I would order the appellant to pay the respondent's costs of the appeal.