Orders
42 I propose that the appeal be dismissed with costs.
43 HODGSON JA: The circumstances giving rise to this appeal and the issues it raises are set out in the judgment of Giles JA.
44 Giles JA has directly addressed the question whether the evidence before the primary judge justified the inference that the slippery tape was the cause of the appellant's fall. In my opinion, this is the correct approach in this case, rather than to ask the question whether the Court is satisfied that the primary judge's conclusion was wrong. This is because, in my opinion, the reasoning of the primary judge does disclose error.
45 In particular, his statement that "there was no evidence [the appellant] had difficulty complying with this request" (that is, the request to perform within the taped area) incorrectly denies the possibility of drawing such an inference from the evidence as to the size and inadequacy of the area taped out.
46 I agree with Giles JA that the appellant's evidence to the effect that the taped area was "maybe four metres long and probably two or three metres deep" was not accurate; and that the length must have been more like eight to ten metres and the depth more like four metres.
47 I agree substantially with the statement by Giles JA of the factors in favour of the inference that the appellant stepped on the black tape and thereby fell, and, subject to what I say below, with his statement of the factors against that inference.
48 As regards his factor (a) against the inference, I would comment that the edge of a stage is a far more obvious feature than a black tape laid across matting; and the appellant's evidence that on the stage she had a consciousness of where the perimeter was does not strongly support a conclusion that on matting she would have had a consciousness of where the black tape was.
49 As regards his factor (b) against the inference, in the absence of cross-examination on the point I would accept the plaintiff's evidence that she slipped.
50 As regards his factor (f) against the inference, the reference to "accidental fall" in the Safe Dance Report was neutral as to whether such a fall was or was not caused by some defect in the floor or some other adverse condition. I accept that a high kick involved some risk of loss of footing of the supporting foot if not well executed; but in my opinion, for a dancer who was well co-ordinated and had a good technique, the risk would be small in the absence of some contributing circumstance.
51 I place substantial weight on the appellant's unchallenged evidence that she slipped, and on the expert evidence that the matting was not slippery but the tape was. In my opinion, these factors, coupled with evidence that supports the inference that the appellant, dancing as she was at the end of a line of 15 dancers, must have been at least near the tape, is sufficient to draw the conclusion, on the balance of probabilities, that the appellant did slip because she stepped on the tape.
52 Although the primary judge did not explicitly find negligence, in my opinion his findings are sufficient for this Court to make such a finding. There is no question that both respondents owed the appellant a duty of care. My finding is that the appellant's fall was caused by the unsafe condition of the dance floor; and in my opinion it was foreseeable by the first respondent that to provide for use in the rain by a group of around 20 students an area of the size in question, bounded by a slippery tape, involved a significant risk of injury; and in my opinion, the reasonable response of the first respondent to this risk would have been to provide a larger area or to ensure that the border was not slippery, or, if this was not possible, to cancel the performance. Since the second respondent's duty was non-delegable, this finding means that the second respondent must also be liable.
53 I join in the remarks of Giles JA concerning the absence of an explicit finding on the question of negligence, the absence of a finding as to apportionment of liability, and particularly the absence of a finding as to damages. This was not a case where a plaintiff lost at first instance because of the primary judge's findings as to her credibility, which would have made the assessment of damages against the possibility of a successful appeal problematic. Because of the absence of these findings, my decision would require that the matter be remitted to the District Court for determination of the apportionment of liability and of damages.
54 I propose the following orders:
(1) Appeal allowed.
(2) Respondents to pay the appellant's costs of the appeal.
(3) Orders below set aside.
(4) Verdict for the appellant against both respondents for damages to be assessed.
(5) Respondents to pay the appellant's cost of the proceedings to date, unless by reason of settlement offers or some other sufficient reason the judge conducting the further hearing determines that a different order should be made.
(6) Matter remitted to the District Court to apportion liability and assess damages.
55 WINDEYER J: I agree with Giles JA, although, like him, I consider the decision difficult.
56 The difficulty for the plaintiff is that the case was conducted on the basis (a) that the experts agreed that the Astro Turf matting, when wet, presented a low risk of slipping; and (b) that thus there was no failure to provide a safe surface for dancing, so far as the matting was concerned. Thus to succeed the plaintiff had to establish that she had slipped on the black tape and it was the slipperiness of the black tape which caused her to fall.
57 I agree with Giles JA that it can be inferred the matting dance area was much the same as the stage dance area. There was no evidence to suggest that the competition had not proceeded satisfactorily on the stage area prior to the rain. While the plaintiff, at the end of line, must have been closest to the tape on the left hand edge of the dance area facing out, I do not think it can be found that she was squashed for room. She did not say that she was. She had been told by her teacher and by the event controller that she must dance inside the taped area and if this were a condition for satisfactory performance one would expect her to be mindful of it.
58 The experts stated, and it is obvious enough, that there is a risk of falling when a dancer performs a high kick. This risk would be less with a competent dancer, which the plaintiff was, than with an inexperienced dancer. Nevertheless, a high kick might result in overbalancing ending in a fall or it might bring about a fall resulting from slipping through weight change during performance of the high kick.
59 The significant evidence of the plaintiff was that she was not sure where she was in relation to the taped line when she fell and that she did not know where she was in relation to that line after falling. The complaint by letter from the teacher, Ms Jonczyk, underlined in paragraph 29 of the judgment of Giles JA is a complaint about the surface of the taped off area not about the tape. The statement of the teacher, admitted only against the second defendant, said that the plaintiff was directed to dance "at the area where it bordered very closely with the black tape to the left front area of the stage … Simone fell during the jazz dance performance." And that "there was a lot of water pooling on or near the area where she had danced".
60 Rightly or wrongly, the case presented by the plaintiff was dependent upon it being found through inference she fell because she slipped on the black tape. I have concluded such an inference should not be drawn on the balance of probabilities. I do not regard proximity to the tape to be sufficient to draw the inference that she stepped on it and as a result slipped and fell. While I accept that she was not cross-examined on her statement in evidence in chief that she slipped the signed incident report does not record her slipping and her teacher did not complain about slipping on the tape. I am unable to find that a slip on the tape was more probable than a fall on the matting while performing the kick.