Case Note: Wolfenden v International Theme Park Pty Limited (t/as Wonderland) & Anor  NSW CA 78
Giles JA; Hodgson JA and Windeyer J
- Where direct proof is not available to sustain a claim in negligence it is sufficient if the circumstances appearing in evidence give rise to a reasonable and definite inference.
- It is desirable for a trail judge who decides against a Plaintiff on liability nonetheless to proceed to assess damages, against the possibility of a successful appeal.
- On 23 October 2003, when she had just turned 16, the plaintiff was performing a dance piece with other students from her school at the first defendant's premises at Australia's Wonderland.
- The first defendant operated the theme park and ran the Performing Arts Challenge. The second defendant was responsible for the conduct of the school.
- The plaintiff's dance group performed their first piece on a raised stage with an area of "astro-turf" matting in front of and below the stage. Prior to the dance piece of the plaintiff's group it began to rain fairly hard. The stage was open to the elements and became wet, and the performances were moved to the matting in front of the stage. Black electrical tape was used to mark out an area on the matting as the area in which the dance pieces were to be performed.
- The plaintiff recalled the size of the taped area as being "maybe 4 metres long and probably 2-3 metres deep". However the trial judge found that its length (meaning width) must have been more like 8-10 metres and its depth must have been more like 4 metres.
- Shortly before they were to perform their piece the plaintiff's dance group was told by their school dance teacher that they were to perform on the matting. The dance group was called on, and the MC repeated that they had to stay within the black taped area and said to be careful as the area was wet.
- Shortly into the dance piece, as the plaintiff performed a high kick, she slipped and fell. Her evidence was as follows:
" As we began the dance, I was in the first chorus, which was into a minute of the performance. As I was performing a high kick, I slipped. I landed with my leg bent underneath me, and as I went down I felt a really excruciating pain in my knee. I fell down. I looked at my teacher and mouthed to her that I would not be able to get back up. She came and assisted me off the stage as the dance routine was still going. There was still three minutes of dancing left. I was assisted to a seat next to the stage. "
- The plaintiff sued the defendants for the injuries she sustained in her fall.
District Court Decision
- At the trial the plaintiff relied on expert evidence from Mr Adams, and the defendant relied on expert evidence from Dr Cooke.
- The experts agreed that the matting presented a low risk of slipping, even when wet. The trial judge found that the matting, although wet "was unlikely to be implicated in the plaintiff's fall having regard to the co-efficient of friction obtained on testing."
- The plaintiff failed in relation to causation because there was no direct evidence that she slipped on the black tape and the trial judge declined to infer that she did so. The trial judge, O'Connor J, concluded as follows:
" Dr Morrison SC submitted that when one looks at the whole of the evidence namely that she was at the end of the line in a space which her teacher regarded as inadequate area, where there were pools of water in the vicinity of the tape, an inference ought be drawn that she in fact stepped on the tape which caused her to fall. Regrettably I am unable to draw that inference. The plaintiff, would be the best person to be able to describe what it was that caused her to fall. In her frank concession in evidence in chief, she was unable to say what it was that caused her to fall or where she was in relation to the black tape. There is no reference in the early documentation to suggest that the black tape was in any way implicated. The directions were that the dancers were to perform within the taped area and as submitted there was no evidence that she had difficulty complying with this request. "
Court of Appeal Decision
- Giles JA noted that the question that must be answered was whether or not the plaintiff stepped on the black tape and thereby fell. Giles JA quoted from the case of Bradshaw v McEwens Pty Limited (HC, 1951, unreported), as repeated by the High Court in Luxton v Vines (1952) 85 CLR 352 at 358:
" In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise. "
- Giles JA then went on to list various factors both for and against the inference. His Honour noted that it was the plaintiff's case that she was close to the black tape marking the extremity, and fell because she stepped on the slippery black tape, whilst it was the defendant's case that the plaintiff simply lost her footing on the matting when attempting to execute an inherently risky high kick.
- In dismissing the plaintiff's appeal, Giles JA concluded by stating that executing a high kick does place a dancer at the risk of a fall, and that he was not persuaded that she fell because of the black tape.
- Hodgson JA in delivering the dissenting judgment placed substantial weight on the plaintiff's unchallenged evidence that she slipped, and on the expert evidence that the matting was not slippery but that the tape was. In his opinion these factors, coupled with evidence that supported the inference that the plaintiff, dancing as she was at the end of a line of 15 dancers, must have been at least near the tape, was sufficient to draw the conclusion, on the balance of probabilities, that the plaintiff did slip because she stepped on the tape.
- Accordingly Hodgson JA would have allowed the appeal.
- Windeyer J agreed with Giles JA although like him, considered the decision difficult.
- Windeyer J stated that 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.
- Windeyer J concluded that the case by the plaintiff was dependant upon it being found through inference that she fell because she slipped on the black tape, and that such inference should not be drawn on the balance of probabilities. His Honour was unable to find that a slip on the tape was more probable than a fall on the matting whilst performing the kick.
- Whilst this decision was determined on the facts of the case, it demonstrates that when there are two or more competing theories in relation to a plaintiff's accident, the onus is on the plaintiff to show that his or her version of events, establishing negligence, is more probable.
- The Court of Appeal also confirmed that trial judges should clearly set out their findings on liability, and assess damages even if finding against plaintiffs, to avoid the unnecessary costs of a new trial, should there be a successful appeal on the issue of liability.
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