Peter was a security guard employed by PNG Securities Ltd. For the past two weeks he had been working a night shift. This required him to go to various construction sites around Sydney to check on whether the buildings, plant and equipment were safely secured.

On the evening of 19 February 2021, Peter visited a large construction site controlled by Olympic Constructions Ltd. Peter drives his car up to the double gate to the site, gets out and unlocks the padlock attached to a chain linking the two arms of the gate. Peter only needs to open one arm for his car to fit through. He leaves the gate open while he performs his job.

As he was driving out of the premises, he noticed the second arm of the gate had swung open due to the wind. This had not happened before. He needed to walk over to that arm to close and padlock the gate. Peter used a torch as there was no other illumination in the area but shone it upon the gate arm rather than on the ground. The ground was covered in long grass. Peter fell into a ditch.

He managed to get up and close and secure the gates and then drove to the next site. When he was checking the work office, he started to feel intense pain in his knee and looked down to see blood on his clothes. He phoned his supervisor who told him to come back to the office and file a report. Having done this, he drove home. Next morning, as he was in a great deal of pain, his wife drove him to the hospital. Peter has been advised he needs a knee reconstruction operation in the near future. Because of the psychological trauma he suffered as a result of the fall, he also developed a phobia about falling.

On the other day, Jeremy, a burglar, broke into the construction site to steal miscellaneous appliances and did not notice in the dark that there was a ditch on the ground. He suffered serious injury in the leg but managed to escape the site with the help of other accomplices who were there to help him.

The ditch had been created by Olympic Constructions Ltd to provide some drainage.

Advise what defences Olympic Constructions Ltd might raise on appeal from Peter and Jeremy.