Case Note Question: Some commentators criticize that the case Judgment below was wrongly decided. Others disagree and think that it was convincingly decided. Please give your own opinion about the case (whether it was convincingly decided by the judge or not). In discussing the case, please follow the requirements and instructions set out in the Case Note Guide & Case Note Marking Rubric wluch can be found on Canvas CITATION CHEETHAM ---SHIRE OF MANJIMUP (2009) WADC 169 CORAM (JUDGEJ SCOTT DCU BETWEEN SANDRA ALICE CHEETHAM (Plaintiff) AND SHIRE OF MANJIMLIP (Defendant) Representation: Counsel Plaintify Mr RV Loun Defendant Mr J Eller Solicitors Plaintify Ian Watson Defendant Jotun Eller 2 SCOTT DCJ Introduction 1 Windy Harbour is a holiday and camping area in Manjimup at which there are a munber of buts in which resident holiday makers and guests stay ("camping grounds"). Situated in the Windy Harbour grounds is a playground around which there is a spoon drain into which water nm-off from the playground collects and, by gravity, flows into a culvert and into a drainpipe which is routed under an unscaled road (" usealed road") which disperses the water out to sen. The unsealed road intersects with and terminates at Windy Harbour Drive On 18 March 2003 the plaintiff was staying in hut 92 at the camping grounds. At or about 10 pm on that day. as she was walking back to that hurt after making a telephone call at the public telephone box, she fell into the culvert and injured her right leg . 3 6 7 8 Evidence The defendant did not call evidence at trial. I accept the evidence of the plaintiff as to the circumstances in which she suffered injury. I found her evidence to be clear and contradicted. Relevantly, her evidence was as follows. Before she was injured she said that she had visited the camping grounds on about 12 occasions with her (now) husband Exhubit 3 is a tourist drive map. That map shows the location of the playground. Windy Harbour Drive, the tunscaled road, the ablution block and the telephone box. Her mother and her husband travelled to the campug grounds to stay at hut 92 duwring Friday 18 March 2005 and the plaintiff and her husband drove down after work on the Friday evening and anived at about 9 10 11 12 13 14 15 16 17 18 19 20 7.30 - 8 pm. After arriving the plaintiff and her mother prepared dinner She said that she had consumed one can of Jim Beam mix as she and her husband drowe from Manjimup 10 the camping grounds and another during dinner She realised when making dinner that they would not have enough oil for the next day and because their son and his girlfriend were coming down she decided to call her son's girlfriend to bring some ol with them At about 9.30 pe she and her husband, who had their dog on a leasl proceeded to walk to the telephone box. There was only one telephone box at the camping grounds There were two ways to walk to the telephone box. One was to follow Windy Harbow Drive and the other was to cut across the playground to the telephone box She described the spoon denin which circled the outside of the playground which acted as a dinining system to the playeround. The spoon drain she said was about 18 inches wide and 6 inches deep She said that she was carrying a large torch which was on as they crossed the playground. She was aware that there was a culvert into which water from the spoon drain flowed. The culvert was a hole in the ground. On Exhibit 3 she marked the location of hit 92, the route she and her husband took and the location of the spoon drain and the culvert She said that she had walked past the culvert on many occasions previously and knew it was there. She and her husband crossed the playground, and walked past the culvert on the left hand side of it and to the night of a roped fence and then walked over the unscaled road to the telephonebox There was a lit spotlight at the ablution block (whcht, in Mr O'Reilly's report, was located about 20 metres south of the culvert). She said that the lighting from the spotlight and her torch was adequate when they crossed the playground and walked to the telephone box. She needed to use the torch in the telephone box because there was to light in it. After finishing her call to her son's girlfriend she stepped out of the telephone box at wlach time the spotlight went out She kept the torch on She said that with the spotlight going off lighting was not too much of an issue because she had the torch She then retraced her steps heading back across the insealed road. She was in front of her husband who let the dog off the leash. She had the torch which she was holding out in front of her She agreed in cross-examination that by using the torch she would have been able to see at least two or three metres in front of her. She said that she was shining the torch on the ground in front of her and doing a broad spectrum with it She said that she was looking where she was going and all of a sudden she fell into the hole (culvert) consequence of which she broke her leg. She said that her husband took photographs of the culvert a week after the incident. These photographes are Exhibits 7.1-73 She identified those photograplus as depicting the state of the culvert at the time of the incident. The photograph in Exhibit7.1. is taken from a position to the west of the culvert facing in the direction of the telephone box. The photograph depicts the culvert the drainpipe and a wlute post either side of the culvert The post on the left hand side has a rope draped over the top of it being the end of a roped fence. The pathway walked by the plaintiff to the telephone box was between this left hand post and the calvert. This photograph also depicts what appears to be a part of a white stake in the culvert. a When it was put to her by counsel for the defendant that had she been paying proper attention when she was walking back from the telephone box she would have seen the culvert, the plaintiff said that that would not be the case because it was dark and the culvert was lower than the level of the scaled road and grass over which she walked. She said that she knew that the culvert was there and she thought that she had avoided it The plaintiff gave evidence that she took photographs of the culvert in July 2008 Those photographs are Exhibits 4.1.48. They show that there was then crected at the eastern end of the culvert a post and rail structure and there was a slab over the drainpipe and part of the culvert Exhibit 1 is a report from Michael O'Reilly of Western Investigations to which there we amber of attachments. That report and the attachments were admitted into evidence by consent. One of those attachments was a statement which was signed by the plaintiff and wuchsbc, in her evidence, confirmed to 21 22 23 24 25 26 27 28 3 29 30 be true In essetice that statement was consistent with the evidence that she gave af trial. In par 36 of that statement she said: "I had the torch in my hand shining it on the ground but I just did not see this bole before I fell into In the report from Mr O'Reilly he said that: a. "On attending the Shire of Manjimup we spoke with Ms Tracey Padgert, the Shire's senior administration and properties officer Ms Padgett advised that the Shire employs an on-site caretaker, Mr Jolin Old who is responsible for the ongoing maintenance of the arca. Ms Padgett further advised that the Shire constructed the culvert/drain surrounding the playgroundoval and it is their responsibility to maintain it. There are no other incidents recorded by the Shire in regard to this area b On attending Windy Harbour and inspecting the site we spoke with the caretaker Mr Award John Old Mr Old advised that he has been the resident caretaker for the past three years and this culvert has been in place for over 20 years, bemg part of an open drain which collects water in off from the oval and surrounding grounds. At the time of this incident two white road marker posts were crected and clearly visible a few metres either side of this culvert as they had reflectors attached to either side of each post. There was a plastic star picket 10 to 12 inches in length installed at the same height and against the side of the wooden framework of this culvert. Lighting is provided via a security light erected alongside the ablution block. 20 metres south of the culvert. Mr Old advised that he turns this lighting on at 5.30 pm in winter and it is set to tim off automatically by a timer at 11 pm each night As a result of this incident Mr Old has installed two pine logs with a heavy 4 inch diameter rope attached as a barricade to this culvert Mr Old advised pedestrians using the telephone box at night after the lighting lues been turned off should exercise greater caution than in daylight hours and should walk along Windy Harbour Road which has a flat even surface rather than use the shortcut of walking across the playgroudoval." As part of Mr O'Reilly's report there were seven photographes which were taken by him on an unknown date but presumably during 2005 showing (inter alia) two of the wooden uprights over which rope was draped on the eastem side of the culvert. From the photographs taken by the plaintiff in July 2008 it appears that this rope was replaced by the mil on the top of the two posts. Photograph numbered 3 in this report depicts a white star picket embedded in the culvert. The photograph being Exhibit 7.1 shows what might be part of a white picket at the bottom of the culvert. In her evidence the plaintiff denied that the fill white star picket was in place at the time of the incident and that it had been broken by her during the course of her fall. I am not satisfied that a full white star picket (like that depicted in photograph mmbered 3 in Mr Reilly's report) was in the culvert at the time that the plaintiff ' was injured. I accept the plaintiff's evidence and accept that Exlubit 7.1 depicts the state of the culvert at that time. In the amended statement of claim the plaintiff alleges that the defendant was "charged with a duty of care persuant to the provisions of the OLA (Occupiers' Liability Act) The nature and extent of that statutory duty of care is not then pleaded Section (1) of the OLA provides relevantly that: ... the care of which an occupier of premises is required by reason of the occupational control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall ... be such care as in all the circumstances of the case is reasonable to see that the person will not suffer injury or damage by reason of suy such danger" Section 3(4) of the OLA provides: "Without restricting the generality of subsection (1), in determining whether an occupier of premises las discharged his duty of care, consideration shall be given to- 31 32 33 35 36 a. b c. d. the gravity and likelihood of the probable injury the circumstances of the entry onto the premises the nature of the premises. the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises the age of the person catering the premises the ability of the person entering premises to appreciate the danger, and the burden on the occupier of eliminating the danger or protecting the person catering premises from the danger as compared to the risk of the danger to the person." e. 37 38 39 a b. C. In the amended statement of claim the breaches by the defendant of the day of care alleged to have been owed by it were as follows. The defendant failed to ensure that the said open hole into wluch the plaintiff fell tipped was cordoned barricaded off or around in such a way as to prevent accident injury of the kind that ensued. failed to ensure that before the passing of daylight on 18 March 2005 the said open hole was either filed with sand or the like and the relevant arca of the playground surface levelled with its sumounds or the hole was securely covered over, for example with a heavy metallid failed to display hazard lights around the said open hole so as to wam persons approaching of the risk of danger failed to have solar or electric lighting operating in the vicinity of the telephone box at that time of the evening which the said open hole was located. failed to place or erect any waming signs to persons approaching in the area of the said hole as to the danger ahead exposed the plaintiff to the risk of injury of the kind that cuswed which could have been avoided by the exercise of reasonable care on the part of the Defendant failed to ensure that the drain contained swales which were broad and shallow failed to ensure that the culverts making up the open hole should transition to swales met sterfall into then failed to reduce the slope of the shoulder of the road by the hole: fiiled to chminate a direct pedestrian path over the hole from the eastwest direction, and k failed to ensure that the hole being part of a swale around the perimeter of the oval was distinguished with appropriate warnings d. e f B i j. 44 Be that as it may from the evidence contained in the report from Mr O'Reilly (Excluibit I) which was exhibited by consent, Ms Padget, the defendant's senior administration and properties officer confirmed that the defendant constructed the culvert/drain surrounding the playground and it was its responsibility to maintain it. I accept that as an admission that the maintenance and control of the culvert was the responsibility of the defendant. I am also satisfied that the camping grounds were maintained and controlled by the defendant. In my view the OLA applies to occupation of the camping grounds and therefore the culvert Duty of care - OLA (Occupiers' Liability Act) - CLA (Civil Liability Act 45 One of the issues which falls for consideration is the intenselationship between the common law and the CLA. And thereby the extent to which the common law relating to my duty of Care owed by the defendant any breach of such duty and cansation is applicable stuch that the relevant common law principles may be applied in this case. To that end both counsel approached this case, in their writta submissions on the basis that the common law principles developed in the case law are applicable. In Homestyle Pty Ltd Perros [2007] WASCA 16 Buss JA considered the authorities in which the relationshup between the OLA and the common law of negligence was considered in my view the appropriate approach is that there is no relevant difference in the nature or scope of the duty of care created by this statute and the common law principles emociated in cases relevant to the plaintiff's claim Duty of care 46 An occupier owes a duty of care to any person whose presence on the premises, either individually or as a member of class, is reasonably foresecable in respect of risks of physical injury arising out of the condition 47 48 of the premises: Modbury Triangle Shopping Centre Pty Ltd v Anoll (2000) 205 CLR 254 at 263 [17). Public authorities are subject to the same principles govering the scope and content of the duties of care to which they are subject, as private citizens. However, when those principles come to be applied to the facts of a particular case, the scope and character of the obligations of the public authority against wluch the duty is asserted will be relevant to the ascertainment of their content: Shire of Gingin Coombe [2009] WASCA 92 at [61] The content of the duty of care is measured by reference to the class and not by reference to the personality or characteristics of each individual member of the class. In Mallier Coffs Harbour City Council (2005) 223 CLR 486 McHugh Jaccepted that authority established that the duty of care owed to persons entering public land is a duty owed to them as a class and not to each of them as individuks [17] There is however an important distinction to be drawn between a class of persons to whom the duty is owed and the ascertainment of the content of that dusty, Where a duty of care is owed to a class of persons, such as those entering public land, it will be owed to all in that classicloading the careful and the careless However this is not to say that the content of the duty includes an obligation to protect the careless from harming themselves. The person subject to the duty is reasonably entitled to assume that the beneficiaries of the duty will exercise reasonable care for their safety. Shire of Gingin Coombe (supra). Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330 par Gurmow) at [47] Having regard to the passage ciled in Dederer and the cases therein referred to in my view the defendant had a duty to exercise reasonable care such that the camping grounds under its control were safe for users of which the plaintiff was one) exercising reasonable care for their own safety . 19 Standard of care 52 Section 5B of the CLA provides (1) A person is not liable for lum caused by that person's fault in failing to take precautions against a risk of harmless- the risk was foreseeable (that is it is a risk of which the person knew or ought to have known); (b) the risk was not insignificant and in the circumstances a reasonable person in the person's position would have taken those precautions (2) In determining whether a reasonable person would have taken precautions against a risk of harm. thic Cout is to consider the following amongst other relevant things) - the probability that the harm would occur if care were not taken: (b) the likely seriousness of the harm (c) burden of taking precautions to avoid the risk of harm (d) the social utility of the activity that creates the risk of harm. 53 In Waverley Council Ferreira [2005] NSWCA 418 Ipp JA considered the provisions of SB of the Chil Liability Act 2000 (NSW) (which is in the same terms as those contained in s 5B of the CLA) which required an identification of what a reasonable person in the position of the defendant would have done by way of a response to a reasonable foreseeable risk. His Honour considered that what was required was an examination and determination based upon the judgment of Masca 3 mm Pyong Shire Council Shirt (1980) 146 CLR 40. 54 In Wyong Shire Council Shirt (supra) Musot said (st [47] - [48] in the context of negligence generally "In deciding whether there has been a breach of the daty of care the tribunal of fact must first ask itself whether a reasonable man in the defender's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff If the answer be in the affimative, it is then for the tribunal to determine what a reasonable man would do by way of response to the risk Bat perception of a reasonable man's response called for a consideration of the magnitade of the risk and the degree of the probability of its occurrence, along with the expense, dafficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable us placed in the defendant's position 6 57 The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely likely to occur my nevertheless constitute a foreseeable risk. A risk which is not far fetched or fanciful is real and therefore foreseeable The standard of care ie, the measure of the discharge of the duty of care applicable to an occupier, has been described as what a reasonable person in the position of the occupier would in the circumstances, do by way of response to the foreseeable risk: Homestyle Pry Lid Perece (supra) at (36). In Brodie Singleton Shire Council (2001) 206 CLR 512 Gaudron, McHugh and Gummow sad [163] "The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their safety is even more important where, as in Ghantous the plaintiff was a pedestrian. In general such persons are more able to see and avoid imperfections in a road surface. It is in the nature of walking in the outdoors that the ground may not be as even, flat or smooth as are the surfaces. As Call points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as even paving stones, tree roots or holes. Of course some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger of the sitounding area. ... In such circunstances, there may be a foreseeable risk of fun evento persons taking reasonable care for their own safety...." In Burwood Council v Byrnes [2002] NSWCA 343 Handley JA said [33] "A council's duty to pedestriats is therefore to take reasonable care to prevent or eliminate the existence of dangers in the road or footpath. The duty is not to prevent or climate obvious hazards wluch could possibly be an occasion of hurm... The standard of care is that which is reasonably required to protect pedestrians who are taking reasonable care for their own safety The care which pedestrians mest themselves take enter into the definition of the duty and is not relevant only to contributory negligence." The assessment of the existence and content of a duty of care is to be undertaken looking forward from a time before the occurrence of the injury giving rise to a claim, rather than backward from the time of the claim. In Vairy Wyong Shire Council (2005) 223 CLR 422 Hayne said [105] "Resolving that question (breach of duty of care), a question of fact hinges critically upon recognising that what has come to be known as the Shirt calcules is not to be undertaken by looking back at what has in fact happened, but by looking forward from a time before the Occurrence of the injury giving rise to the claim. The several questions described by Mason Jin Wong Sluire Council Shirt (saw) are to be asked and answered with the perspective. This before the appellant was injured, would a reasonable man in the Council's position ... luve foreseen that his conduct involved a risk of injury to the appellant or to a class of persons including the fappellant? If the answer to that question is altimative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk As Mason went on to point out The perception of a reasonable man's response caused by consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense. difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have The facts as I find to be relevant to the nature of sury duty owed by the defendit to the plaintiff and whether the defendant was in breach of any such duty, are as follows: a the camping grounds in which the culvert was situated were a holiday facility, b. it was reasonably foreseeable that the camping grounds would be occupied and frequented by owners or lessees of hists and/or guests of various ages, c. the camping grounds included a grassed playground incorporating swing d the spoon drain and culvert had been in existence for many years e the telephone box used by the plaintiff to make a telephone call was the only public telephone box on the camping grounds f it was common place for persons at the camping grounds to walk across the playground and past the dirain to the telephone box: & there was only a few feet of walkway between the white postce the left hand side of the culvert (as 59 60 61 62 63 one is walking towards the direction of the Icephone box) and the culvert itself. hat the time of the incident in which the plaintiff was injured there was a roped fence culminating in that white post which effectively shepherded those walking passed the culvert to that walkway; i. at night the only light in the vicinity of the culvent was the spotlight near the ablution block about 20 metres from the culvert. That light named off tomatically by a time at 11.00 pm each night whereupon there was no direct lighting on the camping grounds which would illuminate the walkway used by pedestrians to pass the culvert or the calvert itself the area between the scaled road and the culvert sloped down to the culvert, ka caretaker, Mr Old, was at the time of the incident in the employ of the defendant. He was employed as an on-site caretaker who was responsible for the ongoing maintenance of inter all the culvert 1 the plaintiff had a torch which was on during the time that she walked across the playground, passed the culvert along the walkway to the telephone box. The light from the spotlight was then on and there was sufficient light, overall m the spotlight at the ablution block went off as she left the telephone box. She shone the torch in front of her as she retraced as she thought her steps toward, and with the intention of going past the culvert on her way back across the playground I am satisfied that the risk to the class of persons who were residents and guests at the camping grounds of which the plaintiff was me) of stepping into a falling into the culvert at night, particularly when the spotlight was off, was reasonably foreseeable to the defendant It was foreseeable that there will be those in the camping grounds who would be in a relaxed holiday mode, be of differing ages and might walk or rm or be in groups in circumstances where they or some of them may act inadvertently Persons walking across the playground to use the telephone in the route taken by the plaintiff would use the walkway near the culvert which was of a width of a few feet. When there was no light from the spotlight even with a forch there is a foreseeable risk that depth and other perceptions are different from what they may be during the day such that the culvert might not be readily noticed even by a person exercising reasonable care From the plaintiff's standpoint she knew that the calvert was there she had a torch which she was shining in front of her to light her way and no doubt to look out for any obstacles or impediments of which the culvert was clearly one. There is no reason to think that she was not wary of the existence of the culvert. [...] In my view there was a significant probability that barm would occur and those consequences were significant harm. In addition I am satisfied that in all the circumstances the plaintiff was exercising reasonable care for her own safety The defendant by counsel points to the fact that there is no evidence that there were any previous incidents of a like nature which would luve brought to the defendant's attention the risk which the culvert presented. In Webby South Australia (1982) 56 ALJR 912 Mason. Brennan and Deane J said (913): But obviousness and the absence of accident over this period does not mean that the construction presented no risk of injury. As the false kerb was adjacent to a bus stop there existed the distinct possability that a pedestrian, because he was in a futury to catch a bus or was intent on observing an approaching bus or because his attention was distracted for some other reason, would fail to take sufficient care to wond injury to himself.... of course a pedestrian could avoid the possibility of mury by taking due care. However, the reasonable man does not assume that others will always take the chee, he minst recognize that there will be occasions when others are distracted by emergency or some other cause from giving sufficient attention to their own safety People ordinarily will be expected to exercise sufficient cate by looking where they are gomg and perceiving and avoiding obvious hazards. Some allowance must of course be made for inadvertence. Each case will tum on its own facts Homestyle Pry Lady Perocal at [53]. There was no real burden in the defendant taking appropriate precautions so as to avoid a foreseeable risk of harm. Covering the culvert and erecting a post and rail structure around or in relation to the culvert was all that was reasonably required. I am satisfied that the defendant was in breach of the daty owed to the plaintiff. To that end the breaches of duty particularised in par 5(a)(d)) and () of the mended statement of claim are made out. 64 65 66 68 Causation 69 The plaintiff mest establish that the breach of duty on the part of the defendant was carrative of the hurm sustained by her both at common law, in accordance with sC of the CLA and the provisions of the OLA 70 I am satisfied that the breach of duty on the part of the defendant found by me caused the plaintiff to suffer injury Contributory negligence 93 A finding on a question of apportionment as between a defendant who has been found to be negligent and a plaintiff who has been found guilty of contributory negligence, is a finding upon a "question, not of principle or of positive findings of factor law, but of proportion of balance and a relative auphases, and of weighing different considerations. It involves an individual choice or discretion as to which there may well be differences of opinion by different mind". British Fame (Owners) Macgregor (Owners) (1943) AC 197 at 201. 94 It involves making a finding as to whether the plaintiff failed to take reasonable care for her own safety in that her behaviour constituted a "departure from the standard of care of a reasonable man" Pennington Morris (1956) 96 CLR 10 at 16. It involves a consideration of the relevant importance of the conduct of each party in causing the damage to the plaintiff). 95 It is true that the plaintiff in this case was fully aware of the existence of the culvert and it was obvious that if she fell into it there was a likelihood that she would suffer injury 96 The fact is that she walked past the culvert on the way to the telephone box and she intended to retrace her steps to walk past it again as she returned to the bust in which she was staying 97 It is also true that she had a torch which she said in evidence would light up an area two or three feet in front of her and she was using the forch as she walked back towards the playground after making her telephone 98 There was no evidence that in walking back towards the playground from the telephone box she was doing vilict wise tum keeping a cefal lookout. Tlac fact that she did not see the culvert and fell into it does not automatically result in a conclusion that she was not keeping a proper lookout 99 She said that the culvert was lower than the level of the sealed rond and the grass upon which she was walking and that seeins to me to be bome out by the photograples which have been exhubited 100 She was using the torch by "doing a broad spectrum" which I take to mean that she was shuning it generally in front of her so as to illuminate any areas of obstruction about which she needed to have notice. The fact is, however, that the only light source was the torch because the other light source which better illuminated the area came from the spotlight wuch was by then oft. 102 It is understandable that without the lighting from the spotlight there may have been difficulties of perception at night making it more difficult for the plaintiff to realise that she was marginally off course as she tried to retrace her steps to walk past the culvert. The width of the walkway past the culvet was a matter of fect and there is nothing in the evidence which would lead me to find that she did otherwise than to endeavour to walk safely past the culvert 103 In these circumstances I do not consider the plaintiff to have been contributorily negligent. call 101 Case Note Question: Some commentators criticize that the case Judgment below was wrongly decided. Others disagree and think that it was convincingly decided. Please give your own opinion about the case (whether it was convincingly decided by the judge or not). In discussing the case, please follow the requirements and instructions set out in the Case Note Guide & Case Note Marking Rubric wluch can be found on Canvas CITATION CHEETHAM ---SHIRE OF MANJIMUP (2009) WADC 169 CORAM (JUDGEJ SCOTT DCU BETWEEN SANDRA ALICE CHEETHAM (Plaintiff) AND SHIRE OF MANJIMLIP (Defendant) Representation: Counsel Plaintify Mr RV Loun Defendant Mr J Eller Solicitors Plaintify Ian Watson Defendant Jotun Eller 2 SCOTT DCJ Introduction 1 Windy Harbour is a holiday and camping area in Manjimup at which there are a munber of buts in which resident holiday makers and guests stay ("camping grounds"). Situated in the Windy Harbour grounds is a playground around which there is a spoon drain into which water nm-off from the playground collects and, by gravity, flows into a culvert and into a drainpipe which is routed under an unscaled road (" usealed road") which disperses the water out to sen. The unsealed road intersects with and terminates at Windy Harbour Drive On 18 March 2003 the plaintiff was staying in hut 92 at the camping grounds. At or about 10 pm on that day. as she was walking back to that hurt after making a telephone call at the public telephone box, she fell into the culvert and injured her right leg . 3 6 7 8 Evidence The defendant did not call evidence at trial. I accept the evidence of the plaintiff as to the circumstances in which she suffered injury. I found her evidence to be clear and contradicted. Relevantly, her evidence was as follows. Before she was injured she said that she had visited the camping grounds on about 12 occasions with her (now) husband Exhubit 3 is a tourist drive map. That map shows the location of the playground. Windy Harbour Drive, the tunscaled road, the ablution block and the telephone box. Her mother and her husband travelled to the campug grounds to stay at hut 92 duwring Friday 18 March 2005 and the plaintiff and her husband drove down after work on the Friday evening and anived at about 9 10 11 12 13 14 15 16 17 18 19 20 7.30 - 8 pm. After arriving the plaintiff and her mother prepared dinner She said that she had consumed one can of Jim Beam mix as she and her husband drowe from Manjimup 10 the camping grounds and another during dinner She realised when making dinner that they would not have enough oil for the next day and because their son and his girlfriend were coming down she decided to call her son's girlfriend to bring some ol with them At about 9.30 pe she and her husband, who had their dog on a leasl proceeded to walk to the telephone box. There was only one telephone box at the camping grounds There were two ways to walk to the telephone box. One was to follow Windy Harbow Drive and the other was to cut across the playground to the telephone box She described the spoon denin which circled the outside of the playground which acted as a dinining system to the playeround. The spoon drain she said was about 18 inches wide and 6 inches deep She said that she was carrying a large torch which was on as they crossed the playground. She was aware that there was a culvert into which water from the spoon drain flowed. The culvert was a hole in the ground. On Exhibit 3 she marked the location of hit 92, the route she and her husband took and the location of the spoon drain and the culvert She said that she had walked past the culvert on many occasions previously and knew it was there. She and her husband crossed the playground, and walked past the culvert on the left hand side of it and to the night of a roped fence and then walked over the unscaled road to the telephonebox There was a lit spotlight at the ablution block (whcht, in Mr O'Reilly's report, was located about 20 metres south of the culvert). She said that the lighting from the spotlight and her torch was adequate when they crossed the playground and walked to the telephone box. She needed to use the torch in the telephone box because there was to light in it. After finishing her call to her son's girlfriend she stepped out of the telephone box at wlach time the spotlight went out She kept the torch on She said that with the spotlight going off lighting was not too much of an issue because she had the torch She then retraced her steps heading back across the insealed road. She was in front of her husband who let the dog off the leash. She had the torch which she was holding out in front of her She agreed in cross-examination that by using the torch she would have been able to see at least two or three metres in front of her. She said that she was shining the torch on the ground in front of her and doing a broad spectrum with it She said that she was looking where she was going and all of a sudden she fell into the hole (culvert) consequence of which she broke her leg. She said that her husband took photographs of the culvert a week after the incident. These photographes are Exhibits 7.1-73 She identified those photograplus as depicting the state of the culvert at the time of the incident. The photograph in Exhibit7.1. is taken from a position to the west of the culvert facing in the direction of the telephone box. The photograph depicts the culvert the drainpipe and a wlute post either side of the culvert The post on the left hand side has a rope draped over the top of it being the end of a roped fence. The pathway walked by the plaintiff to the telephone box was between this left hand post and the calvert. This photograph also depicts what appears to be a part of a white stake in the culvert. a When it was put to her by counsel for the defendant that had she been paying proper attention when she was walking back from the telephone box she would have seen the culvert, the plaintiff said that that would not be the case because it was dark and the culvert was lower than the level of the scaled road and grass over which she walked. She said that she knew that the culvert was there and she thought that she had avoided it The plaintiff gave evidence that she took photographs of the culvert in July 2008 Those photographs are Exhibits 4.1.48. They show that there was then crected at the eastern end of the culvert a post and rail structure and there was a slab over the drainpipe and part of the culvert Exhibit 1 is a report from Michael O'Reilly of Western Investigations to which there we amber of attachments. That report and the attachments were admitted into evidence by consent. One of those attachments was a statement which was signed by the plaintiff and wuchsbc, in her evidence, confirmed to 21 22 23 24 25 26 27 28 3 29 30 be true In essetice that statement was consistent with the evidence that she gave af trial. In par 36 of that statement she said: "I had the torch in my hand shining it on the ground but I just did not see this bole before I fell into In the report from Mr O'Reilly he said that: a. "On attending the Shire of Manjimup we spoke with Ms Tracey Padgert, the Shire's senior administration and properties officer Ms Padgett advised that the Shire employs an on-site caretaker, Mr Jolin Old who is responsible for the ongoing maintenance of the arca. Ms Padgett further advised that the Shire constructed the culvert/drain surrounding the playgroundoval and it is their responsibility to maintain it. There are no other incidents recorded by the Shire in regard to this area b On attending Windy Harbour and inspecting the site we spoke with the caretaker Mr Award John Old Mr Old advised that he has been the resident caretaker for the past three years and this culvert has been in place for over 20 years, bemg part of an open drain which collects water in off from the oval and surrounding grounds. At the time of this incident two white road marker posts were crected and clearly visible a few metres either side of this culvert as they had reflectors attached to either side of each post. There was a plastic star picket 10 to 12 inches in length installed at the same height and against the side of the wooden framework of this culvert. Lighting is provided via a security light erected alongside the ablution block. 20 metres south of the culvert. Mr Old advised that he turns this lighting on at 5.30 pm in winter and it is set to tim off automatically by a timer at 11 pm each night As a result of this incident Mr Old has installed two pine logs with a heavy 4 inch diameter rope attached as a barricade to this culvert Mr Old advised pedestrians using the telephone box at night after the lighting lues been turned off should exercise greater caution than in daylight hours and should walk along Windy Harbour Road which has a flat even surface rather than use the shortcut of walking across the playgroudoval." As part of Mr O'Reilly's report there were seven photographes which were taken by him on an unknown date but presumably during 2005 showing (inter alia) two of the wooden uprights over which rope was draped on the eastem side of the culvert. From the photographs taken by the plaintiff in July 2008 it appears that this rope was replaced by the mil on the top of the two posts. Photograph numbered 3 in this report depicts a white star picket embedded in the culvert. The photograph being Exhibit 7.1 shows what might be part of a white picket at the bottom of the culvert. In her evidence the plaintiff denied that the fill white star picket was in place at the time of the incident and that it had been broken by her during the course of her fall. I am not satisfied that a full white star picket (like that depicted in photograph mmbered 3 in Mr Reilly's report) was in the culvert at the time that the plaintiff ' was injured. I accept the plaintiff's evidence and accept that Exlubit 7.1 depicts the state of the culvert at that time. In the amended statement of claim the plaintiff alleges that the defendant was "charged with a duty of care persuant to the provisions of the OLA (Occupiers' Liability Act) The nature and extent of that statutory duty of care is not then pleaded Section (1) of the OLA provides relevantly that: ... the care of which an occupier of premises is required by reason of the occupational control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall ... be such care as in all the circumstances of the case is reasonable to see that the person will not suffer injury or damage by reason of suy such danger" Section 3(4) of the OLA provides: "Without restricting the generality of subsection (1), in determining whether an occupier of premises las discharged his duty of care, consideration shall be given to- 31 32 33 35 36 a. b c. d. the gravity and likelihood of the probable injury the circumstances of the entry onto the premises the nature of the premises. the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises the age of the person catering the premises the ability of the person entering premises to appreciate the danger, and the burden on the occupier of eliminating the danger or protecting the person catering premises from the danger as compared to the risk of the danger to the person." e. 37 38 39 a b. C. In the amended statement of claim the breaches by the defendant of the day of care alleged to have been owed by it were as follows. The defendant failed to ensure that the said open hole into wluch the plaintiff fell tipped was cordoned barricaded off or around in such a way as to prevent accident injury of the kind that ensued. failed to ensure that before the passing of daylight on 18 March 2005 the said open hole was either filed with sand or the like and the relevant arca of the playground surface levelled with its sumounds or the hole was securely covered over, for example with a heavy metallid failed to display hazard lights around the said open hole so as to wam persons approaching of the risk of danger failed to have solar or electric lighting operating in the vicinity of the telephone box at that time of the evening which the said open hole was located. failed to place or erect any waming signs to persons approaching in the area of the said hole as to the danger ahead exposed the plaintiff to the risk of injury of the kind that cuswed which could have been avoided by the exercise of reasonable care on the part of the Defendant failed to ensure that the drain contained swales which were broad and shallow failed to ensure that the culverts making up the open hole should transition to swales met sterfall into then failed to reduce the slope of the shoulder of the road by the hole: fiiled to chminate a direct pedestrian path over the hole from the eastwest direction, and k failed to ensure that the hole being part of a swale around the perimeter of the oval was distinguished with appropriate warnings d. e f B i j. 44 Be that as it may from the evidence contained in the report from Mr O'Reilly (Excluibit I) which was exhibited by consent, Ms Padget, the defendant's senior administration and properties officer confirmed that the defendant constructed the culvert/drain surrounding the playground and it was its responsibility to maintain it. I accept that as an admission that the maintenance and control of the culvert was the responsibility of the defendant. I am also satisfied that the camping grounds were maintained and controlled by the defendant. In my view the OLA applies to occupation of the camping grounds and therefore the culvert Duty of care - OLA (Occupiers' Liability Act) - CLA (Civil Liability Act 45 One of the issues which falls for consideration is the intenselationship between the common law and the CLA. And thereby the extent to which the common law relating to my duty of Care owed by the defendant any breach of such duty and cansation is applicable stuch that the relevant common law principles may be applied in this case. To that end both counsel approached this case, in their writta submissions on the basis that the common law principles developed in the case law are applicable. In Homestyle Pty Ltd Perros [2007] WASCA 16 Buss JA considered the authorities in which the relationshup between the OLA and the common law of negligence was considered in my view the appropriate approach is that there is no relevant difference in the nature or scope of the duty of care created by this statute and the common law principles emociated in cases relevant to the plaintiff's claim Duty of care 46 An occupier owes a duty of care to any person whose presence on the premises, either individually or as a member of class, is reasonably foresecable in respect of risks of physical injury arising out of the condition 47 48 of the premises: Modbury Triangle Shopping Centre Pty Ltd v Anoll (2000) 205 CLR 254 at 263 [17). Public authorities are subject to the same principles govering the scope and content of the duties of care to which they are subject, as private citizens. However, when those principles come to be applied to the facts of a particular case, the scope and character of the obligations of the public authority against wluch the duty is asserted will be relevant to the ascertainment of their content: Shire of Gingin Coombe [2009] WASCA 92 at [61] The content of the duty of care is measured by reference to the class and not by reference to the personality or characteristics of each individual member of the class. In Mallier Coffs Harbour City Council (2005) 223 CLR 486 McHugh Jaccepted that authority established that the duty of care owed to persons entering public land is a duty owed to them as a class and not to each of them as individuks [17] There is however an important distinction to be drawn between a class of persons to whom the duty is owed and the ascertainment of the content of that dusty, Where a duty of care is owed to a class of persons, such as those entering public land, it will be owed to all in that classicloading the careful and the careless However this is not to say that the content of the duty includes an obligation to protect the careless from harming themselves. The person subject to the duty is reasonably entitled to assume that the beneficiaries of the duty will exercise reasonable care for their safety. Shire of Gingin Coombe (supra). Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330 par Gurmow) at [47] Having regard to the passage ciled in Dederer and the cases therein referred to in my view the defendant had a duty to exercise reasonable care such that the camping grounds under its control were safe for users of which the plaintiff was one) exercising reasonable care for their own safety . 19 Standard of care 52 Section 5B of the CLA provides (1) A person is not liable for lum caused by that person's fault in failing to take precautions against a risk of harmless- the risk was foreseeable (that is it is a risk of which the person knew or ought to have known); (b) the risk was not insignificant and in the circumstances a reasonable person in the person's position would have taken those precautions (2) In determining whether a reasonable person would have taken precautions against a risk of harm. thic Cout is to consider the following amongst other relevant things) - the probability that the harm would occur if care were not taken: (b) the likely seriousness of the harm (c) burden of taking precautions to avoid the risk of harm (d) the social utility of the activity that creates the risk of harm. 53 In Waverley Council Ferreira [2005] NSWCA 418 Ipp JA considered the provisions of SB of the Chil Liability Act 2000 (NSW) (which is in the same terms as those contained in s 5B of the CLA) which required an identification of what a reasonable person in the position of the defendant would have done by way of a response to a reasonable foreseeable risk. His Honour considered that what was required was an examination and determination based upon the judgment of Masca 3 mm Pyong Shire Council Shirt (1980) 146 CLR 40. 54 In Wyong Shire Council Shirt (supra) Musot said (st [47] - [48] in the context of negligence generally "In deciding whether there has been a breach of the daty of care the tribunal of fact must first ask itself whether a reasonable man in the defender's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff If the answer be in the affimative, it is then for the tribunal to determine what a reasonable man would do by way of response to the risk Bat perception of a reasonable man's response called for a consideration of the magnitade of the risk and the degree of the probability of its occurrence, along with the expense, dafficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable us placed in the defendant's position 6 57 The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely likely to occur my nevertheless constitute a foreseeable risk. A risk which is not far fetched or fanciful is real and therefore foreseeable The standard of care ie, the measure of the discharge of the duty of care applicable to an occupier, has been described as what a reasonable person in the position of the occupier would in the circumstances, do by way of response to the foreseeable risk: Homestyle Pry Lid Perece (supra) at (36). In Brodie Singleton Shire Council (2001) 206 CLR 512 Gaudron, McHugh and Gummow sad [163] "The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their safety is even more important where, as in Ghantous the plaintiff was a pedestrian. In general such persons are more able to see and avoid imperfections in a road surface. It is in the nature of walking in the outdoors that the ground may not be as even, flat or smooth as are the surfaces. As Call points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as even paving stones, tree roots or holes. Of course some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger of the sitounding area. ... In such circunstances, there may be a foreseeable risk of fun evento persons taking reasonable care for their own safety...." In Burwood Council v Byrnes [2002] NSWCA 343 Handley JA said [33] "A council's duty to pedestriats is therefore to take reasonable care to prevent or eliminate the existence of dangers in the road or footpath. The duty is not to prevent or climate obvious hazards wluch could possibly be an occasion of hurm... The standard of care is that which is reasonably required to protect pedestrians who are taking reasonable care for their own safety The care which pedestrians mest themselves take enter into the definition of the duty and is not relevant only to contributory negligence." The assessment of the existence and content of a duty of care is to be undertaken looking forward from a time before the occurrence of the injury giving rise to a claim, rather than backward from the time of the claim. In Vairy Wyong Shire Council (2005) 223 CLR 422 Hayne said [105] "Resolving that question (breach of duty of care), a question of fact hinges critically upon recognising that what has come to be known as the Shirt calcules is not to be undertaken by looking back at what has in fact happened, but by looking forward from a time before the Occurrence of the injury giving rise to the claim. The several questions described by Mason Jin Wong Sluire Council Shirt (saw) are to be asked and answered with the perspective. This before the appellant was injured, would a reasonable man in the Council's position ... luve foreseen that his conduct involved a risk of injury to the appellant or to a class of persons including the fappellant? If the answer to that question is altimative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk As Mason went on to point out The perception of a reasonable man's response caused by consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense. difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have The facts as I find to be relevant to the nature of sury duty owed by the defendit to the plaintiff and whether the defendant was in breach of any such duty, are as follows: a the camping grounds in which the culvert was situated were a holiday facility, b. it was reasonably foreseeable that the camping grounds would be occupied and frequented by owners or lessees of hists and/or guests of various ages, c. the camping grounds included a grassed playground incorporating swing d the spoon drain and culvert had been in existence for many years e the telephone box used by the plaintiff to make a telephone call was the only public telephone box on the camping grounds f it was common place for persons at the camping grounds to walk across the playground and past the dirain to the telephone box: & there was only a few feet of walkway between the white postce the left hand side of the culvert (as 59 60 61 62 63 one is walking towards the direction of the Icephone box) and the culvert itself. hat the time of the incident in which the plaintiff was injured there was a roped fence culminating in that white post which effectively shepherded those walking passed the culvert to that walkway; i. at night the only light in the vicinity of the culvent was the spotlight near the ablution block about 20 metres from the culvert. That light named off tomatically by a time at 11.00 pm each night whereupon there was no direct lighting on the camping grounds which would illuminate the walkway used by pedestrians to pass the culvert or the calvert itself the area between the scaled road and the culvert sloped down to the culvert, ka caretaker, Mr Old, was at the time of the incident in the employ of the defendant. He was employed as an on-site caretaker who was responsible for the ongoing maintenance of inter all the culvert 1 the plaintiff had a torch which was on during the time that she walked across the playground, passed the culvert along the walkway to the telephone box. The light from the spotlight was then on and there was sufficient light, overall m the spotlight at the ablution block went off as she left the telephone box. She shone the torch in front of her as she retraced as she thought her steps toward, and with the intention of going past the culvert on her way back across the playground I am satisfied that the risk to the class of persons who were residents and guests at the camping grounds of which the plaintiff was me) of stepping into a falling into the culvert at night, particularly when the spotlight was off, was reasonably foreseeable to the defendant It was foreseeable that there will be those in the camping grounds who would be in a relaxed holiday mode, be of differing ages and might walk or rm or be in groups in circumstances where they or some of them may act inadvertently Persons walking across the playground to use the telephone in the route taken by the plaintiff would use the walkway near the culvert which was of a width of a few feet. When there was no light from the spotlight even with a forch there is a foreseeable risk that depth and other perceptions are different from what they may be during the day such that the culvert might not be readily noticed even by a person exercising reasonable care From the plaintiff's standpoint she knew that the calvert was there she had a torch which she was shining in front of her to light her way and no doubt to look out for any obstacles or impediments of which the culvert was clearly one. There is no reason to think that she was not wary of the existence of the culvert. [...] In my view there was a significant probability that barm would occur and those consequences were significant harm. In addition I am satisfied that in all the circumstances the plaintiff was exercising reasonable care for her own safety The defendant by counsel points to the fact that there is no evidence that there were any previous incidents of a like nature which would luve brought to the defendant's attention the risk which the culvert presented. In Webby South Australia (1982) 56 ALJR 912 Mason. Brennan and Deane J said (913): But obviousness and the absence of accident over this period does not mean that the construction presented no risk of injury. As the false kerb was adjacent to a bus stop there existed the distinct possability that a pedestrian, because he was in a futury to catch a bus or was intent on observing an approaching bus or because his attention was distracted for some other reason, would fail to take sufficient care to wond injury to himself.... of course a pedestrian could avoid the possibility of mury by taking due care. However, the reasonable man does not assume that others will always take the chee, he minst recognize that there will be occasions when others are distracted by emergency or some other cause from giving sufficient attention to their own safety People ordinarily will be expected to exercise sufficient cate by looking where they are gomg and perceiving and avoiding obvious hazards. Some allowance must of course be made for inadvertence. Each case will tum on its own facts Homestyle Pry Lady Perocal at [53]. There was no real burden in the defendant taking appropriate precautions so as to avoid a foreseeable risk of harm. Covering the culvert and erecting a post and rail structure around or in relation to the culvert was all that was reasonably required. I am satisfied that the defendant was in breach of the daty owed to the plaintiff. To that end the breaches of duty particularised in par 5(a)(d)) and () of the mended statement of claim are made out. 64 65 66 68 Causation 69 The plaintiff mest establish that the breach of duty on the part of the defendant was carrative of the hurm sustained by her both at common law, in accordance with sC of the CLA and the provisions of the OLA 70 I am satisfied that the breach of duty on the part of the defendant found by me caused the plaintiff to suffer injury Contributory negligence 93 A finding on a question of apportionment as between a defendant who has been found to be negligent and a plaintiff who has been found guilty of contributory negligence, is a finding upon a "question, not of principle or of positive findings of factor law, but of proportion of balance and a relative auphases, and of weighing different considerations. It involves an individual choice or discretion as to which there may well be differences of opinion by different mind". British Fame (Owners) Macgregor (Owners) (1943) AC 197 at 201. 94 It involves making a finding as to whether the plaintiff failed to take reasonable care for her own safety in that her behaviour constituted a "departure from the standard of care of a reasonable man" Pennington Morris (1956) 96 CLR 10 at 16. It involves a consideration of the relevant importance of the conduct of each party in causing the damage to the plaintiff). 95 It is true that the plaintiff in this case was fully aware of the existence of the culvert and it was obvious that if she fell into it there was a likelihood that she would suffer injury 96 The fact is that she walked past the culvert on the way to the telephone box and she intended to retrace her steps to walk past it again as she returned to the bust in which she was staying 97 It is also true that she had a torch which she said in evidence would light up an area two or three feet in front of her and she was using the forch as she walked back towards the playground after making her telephone 98 There was no evidence that in walking back towards the playground from the telephone box she was doing vilict wise tum keeping a cefal lookout. Tlac fact that she did not see the culvert and fell into it does not automatically result in a conclusion that she was not keeping a proper lookout 99 She said that the culvert was lower than the level of the sealed rond and the grass upon which she was walking and that seeins to me to be bome out by the photograples which have been exhubited 100 She was using the torch by "doing a broad spectrum" which I take to mean that she was shuning it generally in front of her so as to illuminate any areas of obstruction about which she needed to have notice. The fact is, however, that the only light source was the torch because the other light source which better illuminated the area came from the spotlight wuch was by then oft. 102 It is understandable that without the lighting from the spotlight there may have been difficulties of perception at night making it more difficult for the plaintiff to realise that she was marginally off course as she tried to retrace her steps to walk past the culvert. The width of the walkway past the culvet was a matter of fect and there is nothing in the evidence which would lead me to find that she did otherwise than to endeavour to walk safely past the culvert 103 In these circumstances I do not consider the plaintiff to have been contributorily negligent. call 101