University of Wollongong v Mitchell

LOWER COURT District Court JURISDICTION : LOWER COURT DC 348/99 FILE NUMBER(S) : LOWER COURT Phelan DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40427 OF 2002

MEAGHER JA GILES JA GZELL J

Friday, 30 May 2003 THE UNIVERSITY OF WOLLONGONG v DIANNE MITCHELL

FACTS The appellant University (the defendant below) was the occupier of premises known as the Hope Theatre. The respondent (the plaintiff below) attended at the Theatre to watch her elder son take part in a concert and graduation ceremony.

The seats in the Theatre were of the automatically retracting type. The respondent, who had been sitting in such a seat, rose to take a photograph, whereupon the seat retracted. When the respondent attempted to resume her seat, she did not pull the seat down, nor did she look or feel with her hand to ascertain the position of the seat. She fell, struck the metal pedestal of the seat and suffered injury.

The respondent sued the University in negligence; a judgment and verdict of $903,811.00 were entered in her favour, wherefrom the University appealed.

HELD per Meagher JA (allowing the appeal)

1. The failure of a defendant to erect signage is an increasingly popular head of negligence, and may in some circumstances amount to actionable negligence.
2. The cases illustrate the limits of the doctrine. Since every object can in some circumstances be dangerous, it would be inconvenient (to say the least) if it had to carry its own warning notice.
3. It must be the law that there is no need to warn against any danger whose existence is glaringly obvious, nor to warn persons who know full well what the dangers are: Waverley Municipal Council v Swain [2003] NSWCA 61. It would have been glaringly obvious to any user (or proposed user) of the seats what would happen if one did not push the seat down before one sat in it.
4. The decision of this Court in Burns v Hoyts Pty Ltd [2002] Aust Tort Reports 81-637, which trembles on the brink of error, is to be distinguished on the facts.

HELD per Giles JA (allowing the appeal)

1. In defining the measure of the duty of care a court not only determines an element essential to the ascertainment of the rights of the particular parties, but also "giv[es] expression to the standards which occupiers of land or premises generally must reach, and possibly insure against, in case similar mishaps befall them": Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at [124].
2. The assessment of what the reasonable man in the position of the occupier would do by way of response to the risk involved what was reasonable given the state of knowledge of entrants generally to the theatre which the occupier was entitled to expect, rather than the state of knowledge of the entrant in particular, of which the occupier knew nothing.
3. The decision on the facts in Burns v Hoyts Pty Ltd (2002) Aust Tort Reports 81-637 is not binding, and if necessary would be respectfully dissented from.

HELD per Gzell J (dissenting)

1. It is not for this Court to supplant its notions of the effectiveness of signage for the findings of the primary judge. The primary judge was entitled to accept the evidence and to find that the appellant had failed, adequately, to respond to the foreseeable risk of injury sustained by the respondent.
2. The appellant created an unreasonable risk of harm to theatre patrons including the respondent, because reasonable members of the community in the appellant's position would think the risk sufficiently great to require preventative action. 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.
3. 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). There is no reason to depart from Burns.

ORDERS

1. Appeal allowed;
2. Verdict and judgment below set aside;
3. Substitute a verdict for the defendant;
4. Order the respondent to pay the appellant's costs both of the trial and of the appeal, but to have a certificate under the Suitors' Fund Act in respect of the latter. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40427 OF 2002

MEAGHER JA GILES JA GZELL J

Friday, 30 May 2003 THE UNIVERSITY OF WOLLONGONG v DIANNE MITCHELL Judgment 1 MEAGHER JA: This is an appeal by the defendant University against a verdict for the plaintiff, Mrs Mitchell, in an occupier's liability claim. The verdict was entered by Phelan DCJ after a five day trial. The issues which the appellant University sought to agitate on the appeal were (a) liability, (b) contributory negligence, and (c) quantum. 2 The amount of the verdict was $903,811 (well in excess of the jurisdictional limit of $750,000). His Honour had no difficulty in finding that there was no contributory negligence (a finding which I should find it impossible to controvert, if it arose). 3 The appellant was the occupier of premises known as the Hope Theatre at the University of Wollongong. The respondent, Mrs Mitchell, attended at the Theatre on the afternoon of 22 November 1998 to watch her elder son take part in a concert and graduation ceremony. She was then 33 years of age. 4 The seats in the Theatre automatically retracted when there was no-one sitting in them. This is hardly a novel phenomenon. Indeed, retractable seats are such a feature of normal life in New South Wales that one can, I think, take judicial notice of their existence. 5 Mrs Mitchell sat in one of these seats in Row 1 in an elevated area of the theatre. Shortly after seating herself she stood up and moved away from the seat. Once her weight was removed the seat automatically retracted. 6 The seat must have been retracted before she initially sat on it. Indeed, if she had looked she would have observed at that time that all unoccupied seats were both retractable and retracted. 7 When she attempted to resume her seat, she did not pull the seat down; nor did she look or feel with her hand to determine the position of the seat. The result was that she fell, and in falling struck the recessed metal pedestal of the seat. And by so doing, there was caused a displaced fracture of the coccyx. 8 There is no doubt of the serious medical results of this injury, nor of the pain involved, nor of its attracting substantial medical expenses. Mrs Mitchell's evidence on all these points was accepted by his Honour, and cannot be doubted. She has borne her afflictions with admirable stoicism, and in my view was entitled to a considerable verdict if only she had a cause of action, which I think she lacked. 9 She sued the appellant in negligence, and in this regard the sole case she relied on was that the appellant erred in not warning her that the Theatre's seats were retractable. It was common ground that there were no signs in the Theatre warning that the seats retracted. 10 The failure of a defendant to erect signage is becoming an increasingly popular head of negligence amongst plaintiffs' litigators. Undoubtedly such a failure may in some circumstances amount to actionable negligence: when water (rain or otherwise) falls on the floor of a mall, the occupier should at least erect a sign saying "Caution: Slippery floor": Maudsley v Proprietors of Strata Plan 39794 [2002] NSWCA 244; Taylor Woodrow Property Co of Australia Pty Ltd v Coles Myer Ltd & Anor [1999] NSWCA 204; when a staircase has a half-concealed hole, or a defective step, the attention of users of that staircase should be directed to the defect: North Sydney Municipal Council v Harrison [2001] NSWCA 4; Trevor Howse Associates Pty Limited v Dessman (undelivered); when premises are bespattered with petrol, an advice against smoking cigarettes would seem to be appropriate; any person who keeps a savage dog on his premises ought at least affix a "Beware of the Dog" sign on the front gate; a highway authority should warn unsuspecting motorists of the nasty features of the road. 11 But the cases illustrate the limits of the doctrine. A council need not draw anyone's attention to the fact that seaside rocks will be slippery if the sea washes over them: Waverley Municipal Council v Lodge (2001) 117 LGERA 447; a council need not enlighten pedestrians about the perils of its footpaths: Waverley Municipal Council v Wagner (2002) 119 LGERA 167; RTA v McGuinness [2002] NSWCA 210; an occupier of a bridge need not erect a sign warning persons coming onto the bridge not to lean over it in order to expectorate: The Council of the Shire of Muswellbrook v Lettice & Anor; The State of New South Wales v Lettice & Anor [2000] NSWCA 359; an hotelier need not explain to his patrons that an over-enthusiastic consumption of alcohol can lead to drunkenness. 12 Indeed, since every object can in some circumstances be dangerous, it would be inconvenient (to say the least) if it had to carry its own warning notice. The surface of the earth would be covered with notices - which, amongst other things, would distract people from reading any relevant notice. Worse, in these multi-cultural and anti-discriminatory days, each notice would have to be duplicated in each of the one hundred and fifty languages spoken in Australia. 13 It must be the law that there is no need to warn against any danger whose existence is glaringly obvious, nor to warn persons who know full well what the dangers are: Waverley Municipal Council v Swain [2003] NSWCA 61. It would, one would have thought, have been glaringly obvious to any user (or proposed user) of the seats, what would happen if one did not push the seat down before one sat in it. This would particularly have been true of Mrs Mitchell who had used such seats constantly, for example whenever she visited the Opera House, which she frequently did. 14 All this is supported by the low incidence of accidents in respect of these seats. The evidence is that they complied with the appropriate Building Code, they were of a generic nature and were used extensively throughout the theatre industry in Australia. There were 438 seats in the Hope Theatre, and they were installed in 1990. Except for Mrs Mitchell, there were no other reported accidents involving these seats. Identical seats had been installed in the Hoyts chain cinemas in 1990. The usage of these seats at 5 Hoyts complexes over a 10-11 year period was 1,490,074. Only one injury had been reported during that period in relation to the usage of those seats. 15 There was no evidence that warning signs were displayed in any theatres, or in the Opera House. 16 The unoccupied seats were in the retracted position when Mrs Mitchell entered the theatre approximately 15 minutes before the commencement of the programme. This was fully observed by her. 17 It is true that she gave a plaintiff's customary evidence that if there were a warning notice she would have behaved differently, and his Honour believed her; but such evidence invites the customary judicial cynicism. 18 Not surprisingly, his Honour, in coming to his conclusions, placed great reliance on the decision of this Court in Burns v Hoyts Pty Ltd [2002] Aust Tort Reports 81-637. However, that case, which trembles on the brink of error, although superficially resembling the present case, has two very distinguishing features: (a) the plaintiff was entirely unfamiliar with retractable seats, and (b) was shown to her seat by an usherette in the dark. In my view, it does not assist Mrs Mitchell. 19 I would make the following orders:

1. Appeal allowed;
2. Verdict and judgment below set aside;
3. Substitute a verdict for the defendant;
4. Order the respondent to pay the appellant's costs both of the trial and of the appeal, but to have a certificate under the Suitors' Fund Act in respect of the latter. 20 GILES JA: On 22 November 1998 the respondent went to the Hope Theatre at the University of Wollongong for a concert and graduation ceremony on the graduation of her son. She sat in a seat in the front row of seats at an upper level in the theatre, behind and about a metre away from a balustrade. 21 It was a proud occasion, and the respondent stood and moved slightly forward to see whether there would be any obstruction to her taking a photograph of her son on the stage. The seat was a type of which the bottom automatically tipped up when the occupant's weight was removed ("tip-up seat"). When sitting down again the respondent did not tip the seat bottom down, or look or feel to determine its position. Her buttocks missed the top of the upturned seat bottom, and she descended with force onto a recessed metal pedestal part of the seat construction. She suffered a significant injury. 22 The appellant was held liable to the respondent in negligence, in that it - " … was negligent in the same way as the Court of Appeal found in Burn v Hoyts Cinemas for the reason that a sign would have been a cheap method of warning patrons of the risk in circumstances where I am persuaded that the plaintiff would have been influenced by such a sign which in the circumstances would have almost certainly avoided this injury." 23 From the evidence, the sign to which the judge was referring was a sign on the top or the back of the balustrade variously described by Dr Adams, called for the respondent, as "reminding people that the seats behind them will have risen if they have stepped forward" and to the effect "check the seat before you sit" or "remember these seats flip up". Dr Adams coupled his evidence that a sign was desirable - it went no further - with the alternative of limiting the distance between the row of seats and the balustrade so that the occupant of the seat could not move forward and would not be so far in front of it that the top of the upturned seat bottom would be missed when sitting down again. 24 A case based on the construction of the seats had been abandoned, and the finding of liability was solely because there was not a sign as described by Dr Adams. The respondent did not seek to uphold the judge's finding on the basis of some other desirable signage.

The question 25 For liability in negligence, that is, for harm done to another through failure to take reasonable care, the approach now accepted is that the defendant must have owed the plaintiff a duty of care, that the defendant must have breached the duty of care, and that the harm to the plaintiff must have been caused by the breach of the duty of care. 26 In the present case there is no room for argument over the existence of a duty of care. The appellant as occupier of the theatre owed to entrants to the theatre a duty to take reasonable care to avoid a foreseeable risk of injury: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. 27 In Wyong Shire Council v Shirt (1981) 146 CLR 41 at 48 Mason J said that a risk which is not far-fetched or fanciful is real and therefore foreseeable. That proposition has become entrenched (although it has recently been questioned in Tame v New South Wales (2002) 76 ALJR 1348 at [96]-[108] per McHugh J), and this Court is bound by it. On that undemanding test, there was a foreseeable risk that an entrant to the theatre would suffer injury in the manner the respondent suffered injury. 28 It must be asked what the appellant was obliged to do in fulfilling the duty to take reasonable care to avoid the risk of injury. That can be seen either as the measure of the duty of care or as going to breach of the duty of care; for example, in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 the Court's consideration of an occupier's liability was in terms of the extent of the duty of care. The present case can be resolved in terms of breach of the duty of care. 29 The test for breach of a duty of care enunciated in Wyong Shire Council v Shirt at 47-8, also now entrenched, is that if there is a foreseeable risk of injury - " … it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position." 30 There was considerable contest at the trial over the respondent's experience of tip-up seats and her appreciation at the time that the seat in the theatre was a tip-up seat. It was found that she did not appreciate at the time that the seat was a tip-up seat, and there is no sufficient reason to disturb that finding. 31 The contest may have been important for causation, but it was not determinative of the measure of the duty of care or of breach of the duty of care. As Kirby J noted in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at [124], in defining the measure of the duty of care a court is not only determining an element essential to the ascertainment of the rights of the particular parties, but is also "giving expression to the standards which occupiers of land or premises generally must reach, and possibly insure against, in case similar mishaps befall them". It is the same if the consideration is in terms of breach of the duty of care. Even if the respondent had been aware that the seat was a tip-up seat, the appellant did not know that she was so aware. The assessment of what the reasonable man in the position of the appellant would do by way of response to the risk involved what was reasonable given the state of knowledge of entrants generally to the theatre which the appellant was entitled to expect, rather than the state of knowledge of the respondent in particular of which the appellant knew nothing. 32 The question is whether the reasonable man in the position of the appellant would, by way of response to the risk that an entrant to the theatre would suffer injury in the manner the respondent suffered injury, provide the sign of which Dr Adams spoke. More precisely, the question is whether the judge has been shown to have been in error in his finding of failure to take reasonable care in that respect, see for example Woods v Multi-Sport Holdings Ltd (2002) 208 CLR 460 at [1], [45], [61], [114], [136]-[138].

The answer to the question 33 An occupier is entitled to assume that most entrants will take reasonable care for their own safety, see for example Phillis v Daly (1988) 15 NSWLR 65; Romeo v Conservation Commission of the Northern Territory. Where the question is one of warning of a foreseeable risk of injury, if the risk is obvious to an entrant exercising reasonable care for the entrant's own safety it is not necessary that the occupier warn of it (Romeo v Conservation Commission of the Northern Territory; Waverley Municipal Council v Lodge (2001) 117 LGERA 447; Waverley Municipal Council v Swain [2003] NSWCA 61). In Waverley Municipal Council v Swain at [114] Spigelman CJ suggested that there could be identified a change in the law whereby greater weight is being given to the proposition that people will take reasonable care for their own safety. There are tides in the law, as in all affairs of man. It may be that a favourable tide has begun to ebb, or it may be that it only appears so because an increase in warning cases has brought to prominence the concerns voiced by Bryson J in Waverley Municipal Council v Lodge at [35]. Be that as it may, the reasonable man in the position of the appellant could take account of what would have been known or apparent to entrants to the theatre, and of the reasonable care they would then exercise for their own safety. 34 The response of the reasonable man in the position of the appellant would be moulded by the following considerations established within the evidence. · Tip-up seats were commonplace in theatres of various kinds, the design being intended to provide for adequate movement between the back of one row of seats and the front of the next row of seats. · The Hope Theatre was used as a lecture theatre, and on occasions for ceremonies or entertainment. · Entrants to the theatre came to seats which were tipped up, and had to tip them down when first sitting down. In first taking their seats the entrants would have to become aware that the seats were tip-up seats. · The judge said that there was no direct evidence of lighting conditions in the theatre, but from a photograph concluded that "from the view of the stage lighting there was an absence of direct light in the rest of the theatre". This fell far short of a finding that the lighting at the time was such that when sitting down again after moving from a seat the occupant of the seat would not see that the bottom was tipped up, and given the use of the theatre there would normally be sufficient lighting for that purpose. · When the bottom of the seat automatically tipped up it produced what was described as "a very slight muffled thud noise". · To be visible to occupants of the row of seats in which the respondent sat, a lot of signs would be required along the length of the balustrade. · There was a similar distance of about a metre between the other rows of seats in the theatre, so that if signs were required on the top or back of the balustrade signs would also be required in some manner on the backs of the other rows of seats in the theatre. · There were 438 seats in the theatre, all tip-up seats. · The seats had been installed in 1990, and apart from the respondent's injury there had been no reports of incidents to the appellant. · Identical seats had been installed in the Hoyts Cinemas chain in 1989-90. There were 10,604 seats. The calculated usage of each seat was 1,490,074 times. There had been only one report of injury. · In order to warn by the signs, they would have to be of sufficient size and legibility to fall into the occupant's consciousness. The practicality of adequate signs on the backs of the other rows of seats and the expense of the proliferation of signs required investigation; this was not done in the trial. · The proliferation of appropriate signs would be likely to be aesthetically detrimental, a not irrelevant matter (see Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [21]). · The appellant would have to determine whether to provide pictorial signs or signs in other languages. · The seats complied with applicable standards and Dr Adams was not aware of any theatre in which there were the signs he considered desirable. 35 The judge said of the incident-free usage of the theatre that its use was mostly as a lecture theatre, in good lighting by persons familiar with it and not distracted by "the excitement of a spectacle". Nonetheless there had been extensive usage, including for ceremonies and entertainment. The judge said of the Hoyts Cinemas' all but incident-free usage that he accepted criticisms voiced by Dr Adams of the figures, it seems referring to Dr Adams' suggestions that there may have been incidents short of injury or unreported incidents but particularly that, because in the cinemas there was not the room to move forward, the occasion for injury was less. Nonetheless the usage was huge, and in combination with the incident-free usage of the theatre spoke strongly of a minimal degree of probability that the foreseeable risk would eventuate. 36 The judge did not expressly refer to the magnitude of the risk. From the respondent's injury, it could be great. It would by no means always be great. Persons sitting down again unaware that the seat bottom had tipped up could descend on the up-turned seat bottom, or otherwise in a manner which did not cause injury or injury of the significance of that suffered by the respondent. 37 In my opinion, the reasonable man in the position of the appellant would have determined that, in the balancing exercise called for by Wyong Shire Council v Shirt, a response by engaging in the proliferation of signs was not necessary; that most entrants would know of tip-up seats or would be made aware from taking their seats that the seats were tip-up seats, and could be left to take care for their own safety. Ensuring that the seat is there before sitting down is hardly a complex or unfamiliar exercise. Having regard to the magnitude of the risk, particularly given the minimal degree of probability that it would eventuate, in the balance against the other considerations involving proliferation of signs a sign as found by the judge was not required, and the failure to provide the sign was not a breach of the duty of care owed to the respondent. 38 With respect, I consider that the judge failed to attribute to the evidence of incident-free or all but incident-free usage the weight it required, and I am satisfied that within the proper bounds of appellate intervention he was in error in his finding of failure to take reasonable care.

Burns v Hoyts Pty Ltd 39 The judge was understandably influenced by the decision of this Court in Burns v Hoyts Pty Ltd (2002) Aust Tort Reports 81-637. In that case, in which the patron of a cinema suffered similar injury from an identical tip-up seat, the risk of injury was to patrons "returning to their seats in the dark not knowing and unable to see, because of the dark that their seats have retracted", and there was failure to take reasonable care because "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.'" (Paras [20]-[21]) 40 Special leave to appeal to the High Court has been granted, the appeal has been heard and judgment stands reserved. From the transcript of argument, the grounds of appeal do not involve the duty of care or its breach. 41 Burns v Hoyts Theatres Ltd can be distinguished on the facts from the present case, in the emphasis upon darkness and the different manner of giving a warning. I do not regard distinguishing it on these grounds as particularly satisfactory. It is not clear whether similar evidence of incident-free usage was given: it is said at [20] that "So far as the evidence went an event like the present has not previously occurred", which suggests less attention to that matter. The decision on the facts is not binding, and if necessary I would respectfully dissent from it.

The result 42 Despite sympathy for the respondent, I consider that the appeal must succeed. I propose the orders - 1. Appeal allowed.

2. Set aside the verdict and judgment for the plaintiff, and in lieu thereof order that there be a verdict and judgment for the defendant.

3. Set aside the order for costs made below and order that the respondent pay the appellant's costs of the trial and the appeal and have a certificate under the Suitors' Fund Act .

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.

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