KINGROM PTY LTD v SAWKA [1996] NSWCA 306

KINGROM PTY LTD v SAWKA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and COLE JJA 8 July 1996, 8 July 1996

[1996] NSWCA 306

OCCUPIER'S negligence — no basis for trial judge's finding of fact — reasonable response to foreseeable risk of minor extent.

Cole JA The respondent was injured in the early morning of 5 May 1990 whilst at a nightclub operated by the appellant when, whilst dancing on a dance floor, she was struck near the ankle by a glass which careered across the dance floor. Dent DCJ awarded her damages for the negligence of the appellant in breaching its duty of care to her. His Honour made the following findings:

"(1) The defendant was the occupier of level 2 of the QE2 Nightclub at all relevant times.

(2) The defendant charged an entry fee to enter its premises.

(3) The dimension and arrangement of level 2 on the night in question was as in exhibits | and 4.

(4) Amongst the services provided by the defendant to entrants were a dance floor, the provision of liquid refreshment, a live band and tables, stools and chairs for entrants to sit on and at.

(5) The nightclub consisted of a first level which was disco and the second level as described above.

(6) The plaintiff, in company with a group of ladies, friends and family entered level 2 of the QE2 after midnight on 5 May 1990 as part of a girls' night out activity previously organised. Some time after 1.00 in the morning, whilst dancing to music with a female friend on the dance floor, dedicated by its marking out as in the photographs in evidence, she suffered an ankle wound. I infer from the evidence led that this was caused by a piece of broken glass which was in motion and hit her before she was aware of its existence.

(7) The evidence establishes that a glass was contemporaneously seen careering across the dance floor by her sister, Mrs Carmen Weston, who tracked its course to where it struck the skirting on the window wall shown in the photographs, shattered and rebounded across the dance floor in its damaged state. I infer this damaged glass or a piece of it struck and injured the plaintiff. At the crucial time Mrs Weston saw people standing and sitting right up to the edge of the dance floor and in particular she observed the direction of travel of the glass on its way to the skirting of the window wall pointed to a group of about seven men standing around a high table next to the dance floor drinking beer and spirits.