Wolfenden v International Theme Park Pty Ltd (trading as Wonderland) & Anor [2008] NSWCA 78

New South Wales Court of Appeal

CITATION: Wolfenden v International Theme Park Pty Ltd (trading as Wonderland) & Anor [2008] NSWCA 78

HEARING DATE(S): 9 April 2008

JUDGMENT DATE: 2 May 2008

JUDGMENT OF: Giles JA at 1; Hodgson JA at 43; Windeyer J at 55

DECISION: Appeal dismissed with costs.

CATCHWORDS: Negligence - causation - dancer fell and was injured - tape marking boundaries of dance area - if foot was on tape could have caused fall - no direct evidence that foot was on tape - whether evidence enabled finding that it was - by majority, fall from slipping on tape not shown to be more probable than fall otherwise occurring.

CATEGORY: Principal judgment

Bradshaw v McEwens Pty Ltd (HC, 1951, unreported); CASES CITED: Luxton v Vines (1952) 85 CLR 352; Nevin v B & R Enclosures Pty Ltd [2004] NSWCA 339; Palmer v Clarke (1989) 19 NSWLR 158.

Simone Wolfenden - Appellant PARTIES: International Theme Park Pty Ltd (trading as Wonderland) - First Respondent The Trustees of the Roman Catholic Church for the Diocese of Parramatta - Second Respondent

FILE NUMBER(S): CA 40243/07

A S Morrison SC & W B Nicholson - Appellant COUNSEL: N J Polin - First Respondent J E Keesing - Second Respondent

Owen Hodge Lawyers, Hurstville - Appellant SOLICITORS: DLA Phillips Fox - First Respondent Makinson & d'Apice - Second Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 5320/04

LOWER COURT JUDICIAL OFFICER: O'Connor DCJ

LOWER COURT DATE OF DECISION: 28 March 2007

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40243/07 Dc 5320/04