More Indications
That The Liability Tide Is Turning
Previous editions of the IEA Sport Monthly Update have
suggested that recent court decisions indicate that the judiciary is
becoming less inclined to award damages in favor of plaintiffs for
negligent actions that would appear to be frivolous. In this months
edition we summarise two recent case decisions that further support
this suggestion.
In Hoyts Pty Limited v Burns [2003] HCA 61 (9TH
October 2003) the High Court has unanimously allowed an appeal by
Hoyts against a NSW Court of Appeal decision that found it liable for
injuries incurred when a patron injured her tailbone on a
self-retracting cinema seat.
Ms Burns, a teacher’s aide specialising in disabled children,
attended the Hoyts’
Bankstown
cinema on 17 March 1997 with a group of disabled children and teachers.
Ms Burns was in charge of a four year old boy who, although
wheelchair-bound, could crawl very quickly. During the movie, Ms Burns
left her seat to retrieve the boy who had crawled away. Unaware the
seats automatically retracted, she sat back down on the metal support
structure of the upright seat without noticing that her seat had
retracted to the upright position. Ms Burns sued Hoyts for negligence,
claiming there should have been signs placed inside or outside the
cinema warning her to check whether the seat was up. She also claimed
that Hoyts had provided a seat of negligent design.
In the District Court, Gibb J heard evidence that Ms Burns
had never attended the subject cinemas before and had not been inside a
picture theatre for many years. Her Honour accepted that the lights of
the theatre were on when Ms Burns entered and the seat must have been in
the upright position immediately before she sat down, requiring her to
push the seat down into a sitting position. |
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Her Honour was
not satisfied that a warning would have had any impact upon Ms Burns’
consciousness or conduct in the circumstances and held that Hoyts was
not negligent in failing to erect warning signs. She dismissed the
claim regarding design fault.
Ms Burns appealed to the Court of Appeal, which unanimously
allowed her appeal. It held that signs warning the seats retracted
automatically should have been displayed in the foyer. Sheller JA
(who gave the leading judgment) had no doubt that the risk of injury
was reasonably foreseeable and said that the primary judge did not
address the question of whether a reasonable person in the position of
Hoyts would have foreseen that some persons returning to their seats
in the dark might have assumed that their seat was still down.
On appeal, the High Court found in favour of Hoyts, saying
that there was no basis for the Court of Appeal’s intervention in this
case. The High Court held that apart from the question of whether the
sign would have been read, it was far from clear whether such a warning
would have been heeded, especially given that Ms Burns’ attention was
distracted by a distressed child in her care. It was held that the
Court of Appeal had no proper regard to the fact that Ms Burns was so
distracted when she sat down that she was unlikely to have been acting
with deliberation and with any conscious awareness of a warning sign
seen some time before.
In Parrington v Hotelcorp Pty Ltimited & Ors [2003]
(18 August 2003) the NSW Supreme Court refused to allow a claim
in damages for injuries sustained when a car the plaintiff was driving
collided with a tree. The Court concluded that the hotelier and its
licensees did not owe the plaintiff a duty of care to protect her from
the consequences of her own inebriation.
Continued
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