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. (8) The photographs exhibits 1 and 4 demonstrate three pedestal tables with two circular bearing surfaces set about two-thirds of a metre from the dance floor surrounded by stools, which when sat upon would have the occupant's knees at the level of the lower bearing surface. (9) As a matter of human experience, given the intended use of the tables, there was in my judgment a clearly foreseeable risk that glass on either level of the pedestal tables would be accidentally dislodged and fall onto the carpet or the 2 UNREPORTED JUDGMENTS dance floor. It was equally foreseeable that such a glass would be struck by a dancer's foot and propelled into motion to a point where it might break and cause injury to a dancer. In my assessment this was not a fanciful risk but a very real and very obvious one. (10) The evidence is that the nightclub was well patronised, its customers vetted at the door and its glasses, when empty, were regularly collected by two collectors at the second level and returned to the bar area for washing and re-use. The evidence establishes that no one was asked to leave the premises for rowdy conduct or the like on this particular morning. Mrs Weston described the glass in motion as she saw it as having the appearance of one kicked or thrown onto the dance floor and on further reflection she thought it was not thrown but rather kicked and that she thought it came from the direction of the group of males drinking that I have earlier alluded to.'""! Upon the facts set out in paragraphs numbered | to 8 which were undisputed on appeal his Honour formed the view regarding foreseeability expressed in para9. His Honour rejected as improbable a deliberate throwing or kicking of the glass but said: "An accidental dropping of a glass from a hand or by knocking from the bearing surfaces of a pedestal table is to my mind a much more likely event. Once floored, such a glass was at risk of rolling to the dance floor or its verge, where it was liable to be footed into movement accidentally by a dancer or a patron skirting the floor."2 That was what his Honour inferred had happened. In those circumstances he found the appellant guilty of negligence because: "The table placement, in all circumstances of this case, breached the general duty of care to exercise reasonable foresight for the safety of others and it, on the probabilities, caused the plaintiff's injuries."3 On appeal it was contended that his Honour erred in holding that the appellant breached its duty of care by placing the tables near the dance floor. It was further argued that there was no evidence from which the trial judge could find that the glass accidentally or inadvertently fell from a table situated near the dance floor. The inferences drawn by his Honour were challenged. Undoubtedly on the evidence the glass travelled across the dance floor, struck the wall, fractured and rebounded cutting the respondent. If it fell off a table and was immediately unintentionally kicked resulting in that course of travel that would not constitute negligence on the part of the appellant for there would be nothing which the appellant reasonably could do to prevent such an occurrence bearing in mind that the premises were operated as nightclub with attendant dim lighting. To raise the dance floor as was one suggestion, or place some barrier around it as was another, seems to me to be attendant with significant unacceptable risk, bearing in mind the circumstances that the nightclub was frequented as was intended by persons before and after midnight consuming alcohol and dancing in the semi darkness. A so-called "buffer zone" between the tables and the floor would in this instance clearly have been ineffective. Further there is no evidence that the glass, before it travelled across the dance floor, was on the floor for any length of time. 1. Appeal Book, at 85V-87Y. 2. Appeal Book, at 88H-L. 3. Appeal Book, at 88W-89C. URJ KINGROM PTY LTD v SAWKA (Meagher JA) 3 It is well established since Australian Safeway Stores Pty Ltd v Zaluzna' as re-stated in Calin v The Greater Union Organisation Pty Ltd5 that if an occupier of premises agrees, for reward, to allow a person to enter the premises for some purpose, the occupier impliedly warrants that the premises are as safe for the purpose as the exercise of reasonable skill and care can make them. In those circumstances of this case, in my opinion, the only possible basis upon which the appellant could be held negligent arose from the placing of tables close to the dance floor. It is an aspect of a nightclub that tables are placed around the dance floor, and in my opinion, to place such tables two thirds of a metre from the edge of the dance floor does not indicate negligence. There was no evidence of any prior occasion when a glass had fallen or been pushed from a table, fallen onto the carpet, kicked onto the dance floor, and then has travelled across the floor causing injury. Whilst the risk may be foreseeable in accordance with accepted principles as not being far fetched or fanciful, whether so to place tables where that might occur constitutes negligence depends upon the magnitude of the risk and its degree of probability.6 Accepting that foreseeability, in my opinion it was nonetheless reasonable to place table in reasonable proximity to that dance floor because the risk of such an occurrence was so slight. Placing tables in such a position is a common occurrence in many nightclubs, clubs, hotels and other places of entertainment. There is thus no negligence in so placing the tables. What I have just said assumes acceptance of the trial judge's inference that the glass fell or was knocked from a table, and was then kicked across the dance floor. However it seems to me that there is no sound evidentiary basis for that inference. In truth, it is speculation for there was in reality no evidence of the location of the glass before it commenced its travel across the dance floor. Thus it should not have been inferred that it was knocked or fell from a table near to the dance floor. Thus the location of the tables adjacent to the dance floor should have been held to be irrelevant to the cause of the respondent's injury. For that additional reason, the allegation of negligence against the appellant should have been rejected. In my opinion the appeal should be upheld, the judgment of Dent DCJ set aside, a verdict entered for the appellant with the respondent ordered to pay the appellant's costs of the trial and of the appeal, but to have, if qualified, a certificate under the Suitor's Fund Act in relation to the appeal. Clarke JA I agree. Meagher JA I also agree. Clarke JA: The order of the Court will be as Mr Justice Cole has announced. The appeal will be upheld, the judgment of Dent DCJ set aside, a verdict entered for the appellant with the respondent ordered to pay the appellant's costs of the trial and of the appeal, but to have, if qualified, a certificate under the Suitor's Fund Act in relation to the appeal. Counsel for the appellant: MJ Williams QC and AJ Black Solicitors for the appellant: Abbott Tout 4. (1987) 162 CLR 479. 5. (1991) 173 CLR 33. 6. Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48. 4 UNREPORTED JUDGMENTS Counsel for the respondent: TJ Golding Solicitors for the respondent: Christopher Tosevic