Hoyts Pty Limited v Burns [2003] HCA 61

HIGH COURT OF AUSTRALIA

McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

HOYTS PTY LIMITED APPELLANT

AND

DIANE BURNS RESPONDENT

Hoyts Pty Limited v Burns

[2003] HCA 61

9 October 2003

S450/2002

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 8 February 2002 and, in lieu thereof, order that the appeal to that Court be dismissed.

On appeal from the Supreme Court of New South Wales

Representation:

D F Jackson QC with A J McInerney for the appellant (instructed by Herbert Geer & Rundle)

B W Walker SC with P A Regattieri for the respondent (instructed by R J Rimes)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Hoyts Pty Ltd v Burns

Negligence – Causation – Failure to warn customers that cinema seats retracted automatically – Respondent injured attempting to sit on a retracted seat – Whether Court of Appeal erred in interfering in primary judge's finding that warning sign would not have altered respondent's conduct.

Appeal – Rehearing before Court of Appeal – Relevance of credibility findings – Whether primary judge's conclusion based upon assessment of credibility of party – Whether Court of Appeal erred in disturbing such conclusion – Whether Court of Appeal omitted to find error before substituting its own conclusion on the evidence.

1. McHUGH, GUMMOW, HAYNE AND CALLINAN JJ. This appeal raises no difficult question of principle. It requires this Court to decide whether an intermediate Court of Appeal was justified in reversing orthodox and carefully considered findings of fact and credibility by a trial judge.

The facts

1. The appellant owns and exhibits films at the Hoyts Cinema Complex at Bankstown in Sydney. The respondent, who was working as a teacher's aide specializing in disabled children, attended the appellant's cinema complex on 17 March 1997. She was then aged about 47. She was accompanied by five adults and eight disabled young children. Her particular responsibility was Joshua, a boy of four years of age who could crawl very quickly but still required a wheelchair. 2. The respondent did not go to the cinema regularly. She had never been to the Bankstown complex before. Indeed, by 17 March 1997 she had not been inside a picture theatre for many years. 3. Neither outside or inside the theatre nor on the screen at any time was there exhibited a sign referring in any way to the seats in the theatre. 4. The group of which the respondent was a member went down an aisle of the particular theatre where the film that they wished to see was being shown. They seated themselves in the front row. The lights of the theatre were on when the respondent entered. 5. Because each seat automatically rose to rest at an angle of 70 degrees to the floor when there was no weight upon it, the respondent's seat must have been in an upright position immediately before she sat down on it. In order to sit upon it she must have exerted force of some kind upon it, either by pushing it or sitting down on it, to bring it to a position generally parallel to the floor. 6. When the respondent seated herself, Joshua was in his wheelchair just to the right in front of her. After a time the lights darkened and the film started. Some light was emitted from the screen. Joshua became very agitated. He began to scream. The respondent thought that if he were taken out of his wheelchair he might calm down. As soon as the respondent placed him on the floor he quickly crawled away from her. She left her seat to retrieve him. He was screaming and kicking and apparently continued to do so as she attempted to resume her seat which had of course by then become upright again. This is how the respondent accounted for what followed: