Calin v Greater Union Organisation Pty Ltd [1991] HCA 23

High Court of Australia Mason C.J. Brennan, Deane, Toohey and McHugh JJ. Calin v Greater Union Organisation Pty Ltd [1991] HCA 23

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

June 20 Mason C.J., Deane, Toohey and McHugh JJ.

The appellant (plaintiff) by her tutor sued the respondent (defendant) in the Supreme Court of New South Wales for damages in respect of injuries which she claimed to have sustained when she attended the Rapallo Cinema in George Street, Sydney, on 22 June 1983, at about 5.20 p.m. The appellant, accompanied by her husband, Constantin, and her son, Romeo, attended the cinema with the intention of seeing the film "Flying High II". The session at which the film was to be shown was advertised to commence at 5 p.m., the main feature to commence at 5.40 p.m. During the screening of the shorts which preceded the feature, the appellant, her husband and son entered the darkened cinema auditorium. The appellant's son had purchased three tickets from the box office in the foyer immediately before they entered the auditorium.

There was no usher or usherette in attendance as they entered. Romeo and Constantin preceded the appellant. They went down the aisle. The aisle had no steps. They heard a cry from the appellant and found her in a position on the floor of the aisle. She was in pain. The appellant claims that she had slipped on a banana skin and that there was a failure to take care on the part of the respondent in not having removed it.

In her statement of claim the appellant claimed that she was a contractual entrant on the respondent's premises and that it was an implied term of the contract that the premises were as safe for the purpose of her watching the film as reasonable care and skill could provide. The appellant asserted that, in breach of the agreement, the respondent by its servants and agents failed, amongst other things, to keep the aisle clean and free from food and refuse, to regularly clean the aisle, to provide adequate lighting in the aisle and to insist that an employee direct patrons to their seats by torchlight when the cinema was in darkness. In the alternative, the appellant asserted that she was an invitee on the respondent's premises and that the food and refuse in the aisle constituted an unusual danger of which the respondent knew or ought to have known. Again, in the alternative, the appellant asserted that the respondent was in breach of a common law duty of care. All these allegations were traversed by the respondent in its defence.