Brighton le Sands Amateur Fishermen's Association Ltd v Vasilios Koromvokis

[2007] NSWCA 331

New South Wales

Court of Appeal

CITATION:	Brighton le Sands Amateur Fishermen's Association Ltd v Vasilios Koromvokis [2007] NSWCA 331
HEARING DATE(S):	7 November 2007
JUDGMENT DATE:	26 November 2007
JUDGMENT OF:	Giles JA at 1; Tobias JA at 2; Handley AJA at 39
DECISION:	(a) Appeal allowed; (b) Set aside the orders made by his Honour Judge McLoughlin on 31 January 2007 and in lieu thereof enter a judgment and verdict for the appellant; (c) The respondent to pay the appellant’s costs of the proceedings in the District Court and of the summons for leave to appeal and the appeal but to have with respect to the latter a certificate under the Suitor’s Fund Act 1951, if otherwise qualified
CATCHWORDS:	COURTS AND JUDGES – Procedural Fairness – Where trial judge made findings not related to case presented at trial - APPEAL AND NEW TRIAL – Appeal – Inadequacy of reasons - TORT – Negligence – Obviousness of risk – Balancing exercise – Civil Liability Act 2002 ss 5F and 5G
LEGISLATION CITED:	Civil Liability Act 2002
CASES CITED:	Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 Roads & Traffic Authority of NSW v Dederer [2007] HCA 42, (2007) 238 ALR 761 Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19, (2005) 221 CLR 234 Vairy v Wyong Shire Council [2005] HCA 62, (2005) 223 CLR 422 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES:	Brighton le Sands Amateur Fishermen's Association Ltd Vasilios Koromvokis
FILE NUMBER(S):	CA 40086/07
COUNSEL:	Cl: J Maconachie QC / M Best Opp: P Biggers
SOLICITORS:	Cl: Davidson Legal, Sydney Opp: David Legal, Fairfield
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 2706/05
LOWER COURT JUDICIAL OFFICER:	McLoughlin DCJ
LOWER COURT DATE OF DECISION:	31 January 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40086/07

GILES JA
TOBIAS JA
HANDLEY AJA

Monday 26 November 2007
BRIGHTON LE SANDS AMATEUR FISHERMEN’S ASSOCIATION LTD v VASILIOS KOROMVOKIS
Judgment

1 GILES JA: I agree with Tobias JA.

2 TOBIAS JA : On 30 June 2005 the opponent commenced proceedings in the District Court of New South Wales against the claimant seeking damages arising out of injuries sustained by him on 27 March 2003 whilst negotiating an area of the claimant’s premises where there were three sets of slipway rails. His left foot struck one of the rails causing him to fall and sustain injuries to his head and left wrist.

3 The proceedings were heard by his Honour Judge McLoughlin who, in a judgment delivered on 31 January 2007, found that the opponent’s injuries had been caused by the negligence of the claimant. His Honour therefore entered a verdict and judgment in favour of the opponent in the sum of $28,487.36 together with costs, part of which were ordered on an indemnity basis. From that decision the claimant seeks leave to appeal to this Court, the application for leave and the substantive appeal having being heard concurrently.

4 At the end of the oral argument the Court determined to grant the claimant leave to appeal notwithstanding that the amount in issue was well below the threshold of $100,000. Appeals against monetary awards which fall significantly below the threshold are not to be encouraged. Nevertheless it was appropriate that leave be granted in the present case as the Court had come firmly to the view that the primary judge’s decision was erroneous. In other words, had the Court been of the view that his Honour’s decision was only arguably wrong, then the relatively small amount in issue would in all probability have been given determinative weight in refusing leave to appeal. It is only because the Court has come to the conclusion that his Honour’s decision is clearly wrong that leave was granted. That being so, I shall hereafter refer to the parties as appellant and respondent.

The relevant facts.


5 At the time of the incident in question, the respondent was 75 years old and in good health. He had been a member of the appellant for 10 years and was an avid fisherman during that period. During the summer months he would go fishing at least twice a week. He transported his boat by trailer attached to his motor vehicle to and from the appellant’s premises. He would launch the boat from the ramp adjoining the appellant’s carpark.

6 The launching ramp was bounded by a wire fence which had a double gate that was kept unlocked and through which access could be gained to the appellant’s clubhouse across a concrete apron upon which were laid three parallel sets of slip rails leading to the water and upon which were moveable cradles on which boats could be slipped for repairs and maintenance (the slipway). Taking a line direct from the gates across the slip rails to the opposite side, the concrete apron was relatively flat, the rails themselves standing approximately 150-200mm proud of the apron to which they were attached. On the far side of the slipway was an ice room and a room where the members’ catch could be weighed.

7 On the day in question the respondent arrived at the appellant’s premises at approximately 5.30am when it was still dark. He parked his car and trailer and then set about preparing for the morning’s fishing. He proceeded through the slipway gates and across the three sets of slip rails to the ice room where he collected approximately 15 kilos of ice in a 20 kilo capacity bucket. His intention was then to return to his car. Having safely negotiated on his return journey two of the three sets of slip rails, his left foot hit the first of the third set of rails causing him to fall and strike his head on the second rail of that set.

8 In chief the respondent said that he was looking down at the rails as he stepped over them but that he could not see them because it was dark and they were, in any event, rusted and black.

9 Although it was the respondent’s case at trial that there was no lighting or illumination of the rails which he had to negotiate when proceeding to and from the ice room, the primary judge found (and his finding was not challenged) that the respondent was mistaken in relation to the state of lighting at the time of his fall and that the appellant had provided adequate lighting of the area where the slip rails were located and which was illuminated at the time of the respondent’s accident.

The decision of the primary judge

10 The respondent pleaded the following particulars of negligence on the part of the appellant:


(a) Failure to provide adequate lighting to the area in circumstances where it was well known to the appellant that its members would regularly attend in darkness to prepare for a fishing trip.

(b) Failure to provide a raised access ramp across the slip rails for persons such as the respondent so as to provide a level surface for those persons to walk upon.

(c) Failure to define the height of the slip rails by painting them with phosphorescent paint.

11 The primary judge made the following findings:


(a) Many members of the appellant frequently accessed the ice room in the same manner as the respondent had, that is, by traversing across the slipway to the ice room, obtaining ice and then returning to their car or boat;

(b) As at 27 March 2003 there were two lights that directly illuminated the slipway area; those lights were controlled by light sensors from a sunset switch so that they came on at dusk and remained on as long as it was dark;

(c) At the time of the respondent’s accident it was still dark but the slipway area was illuminated by two lights, one of which pointed down the passageway to the ice room and the other of which shone directly onto the slipway;

(d) Over many years, to the appellant’s knowledge, its members, during hours of darkness, had traversed the slipway for the purpose of obtaining ice from the ice room to put in their boats before going fishing and that this was a practice which was accepted by the appellant without any warning that the ice room should not be accessed in this manner;

(e) Although there was an alternative way of accessing the ice room that did not involve negotiating the slipway, this was not frequently used and many members adopted the same modus operandi as the respondent had in accessing the ice room by walking across the slipway;

(f) Although the respondent fell in the manner he described, his Honour rejected his evidence that the lighting in the area was deficient;

(g) Although the appellant was aware that there was some danger in permitting its members to traverse the area of the slipway, it nevertheless allowed club members to access the ice room both during the day and at night in the manner adopted by the respondent;

(h) That danger could have been removed by the installation of a concrete ramp leading up to and across each set of slip rails, which would have permitted the three sets of rails to be traversed without each rail having to be negotiated by stepping over it, and by painting the rails yellow;

(i) The respondent fell because of the dangerous condition of the slipway over which he and other members traversed for the purpose of gaining access to and from the ice room and on the occasion in question the respondent misjudged the height of the slip rails as he carried a large amount of ice in his bucket when returning to his boat;

(j) In February 2004 when the appellant’s premises were being reconstructed and/or renovated, a concrete ramp to enable the slip rails to be traversed without stepping over each one was installed and the rails, where they passed through the concrete apron, were painted yellow: the evidence did not establish that this work was carried out as a consequence of the accident that befell the respondent.

12 The primary judge found that as there was access to the ice room via the slipway, the appellant owed the respondent a duty to take reasonable care for his safety. As the appellant had pleaded ss 5F and 5G of the Civil Liability Act 2002 (the Act ), his Honour also found that given the description of the slipway, the risk of bumping into or tripping over a slip rail was one which was obvious within the meaning of s 5F and that the respondent was aware of that risk. However, his Honour continued:
“This is not a warning case and the risk to which I have referred could easily have been removed by the use of the concrete ramping and yellow illuminating paint replacing the dark bold rusty finish that was in existence at the time of the [respondent’s] fall.”
13 His Honour then found that the respondent had successfully navigated the slip rails on his path to obtain the ice at a time when he was unhindered by the weight of ice. Bearing in mind his age, on his return journey he was then carrying 15 kilos of ice. Accordingly, whilst accepting there was no direct evidence on the point, he accepted
“that the [respondent] in his desire to have the ice on his boat and launch his boat, momentarily overlooked the difficulty in traversing the slipway rails on his return journey, because of his age, he was then seventy-seven and carrying a very heavy bucket of ice. Relying on the basis that the [respondent] successfully negotiated the railings without the burden of the weight of ice and failed to do so with the weight of ice, I am of the view that on probabilities, the [respondent] was unaware that carrying the ice would make it more difficult for him to traverse the railings upon which he fell. It follows that I am of the view that the presumption of awareness of the relevant risk has been rebutted because of that to which I have referred.”
14 As to the three particulars of negligence referred to in [10] above, his Honour found for the appellant with respect to particular (a) and for the respondent with respect to particulars (b) and (c) in that the appellant
“did fail to provide a raised access ramp for persons such as the [respondent] to provide a level surface for a person to walk on and failed to define the height of the slipway rails by painting them with phosphorescent paint. I accept, as I have indicated, that the [respondent] recognised the risk of injury as he traversed the rails hindered (sic) by weight and his age but failed to recognise the difficulties of further traversing the rails burdened by the weight of up to 20 kilograms being carried by a man of his age. Accordingly, he is entitled to a verdict.”

The grounds of appeal

15 The grounds of appeal advanced by the appellant were as follows:

(a) The primary judge erred by denying the appellant procedural fairness:

(i) in making findings in relation to a case that was not presented by the respondent at trial;
(ii) in not requiring submissions to be made on the issues he decided in the respondent’s favour;

(b) The primary judge failed to provide adequate reasons in relation to the “ balancing ” required in accordance with Wyong Shire Council v Shirt (1980) 146 CLR 40 and further erred by failing to give adequate reasons as to the “ dominant ” consideration in determining whether the appellant had breached his duty of care to the respondent, namely, the obviousness of the risk confronting the respondent.

16 The first ground of appeal was founded upon the manner in which the respondent conducted his case at trial, namely, that the real issue was whether the respondent’s case that the slipway area where he fell was dark and not illuminated should be accepted. His Honour acknowledged that this was the principal area of dispute between the parties. Reliance was therefore placed, inter alia, upon the respondent’s written submissions to the primary judge where it was stated that
“the risk of harm in this case, in respect of which a reasonable response must be judged, was the risk of injury to a person most likely elderly … traversing the slipway area in darkness, perhaps while carrying ice and tripping on the slipway rails.”

17 It was submitted that the respondent’s case was simply put, namely, it was dark; he was looking where he was going; he could not see the slip rails in front of him; he felt his left foot strike a rail and he fell. The breach of duty relied upon was the alleged failure to light the area. It was further submitted that the respondent did not derogate at trial from this assertion either in his evidence or in his submissions.

18 The primary judge found that the fact that the respondent was unaware that carrying 15-20 kilos of ice would make it more difficult, given his age, for him to traverse the slip rails upon which he fell, rendered the relevant risk of tripping over a slip rail (even though it was illuminated) one which at least so far as he was concerned, was no longer obvious: in other words, it was no longer a risk which was obvious and therefore was not one of which he was or could be aware. However, this was not the case made at trial as a consequence whereof there was no cross-examination of the respondent relevant to it. In fact, his evidence was said to be to the contrary as appears from the following exchange:
“Q. When filling your bucket with ice, it was a 15 or 20 kilogram bucket wasn’t it?
A. Yes.
Q. And you’d fill it with 15 or 20 kilograms of ice wouldn’t you?
A. Around 15, 15 kilogram.
Q. And as at 27 March 2003 you’d agree that was a cumbersome item to carry?
A. No, 15 kilo is nothing.”

19 As to the second ground of appeal, the appellant submitted that in finding that the respondent was “ unaware ” in the circumstances of the obvious risk constituted by the slip rails, the primary judge failed to adequately deal with the issue as to whether a person in the respondent’s position exercising reasonable care for his own safety should have been aware of the risk of injury in traversing the slipway.

20 It is unnecessary to express a view on those grounds of appeal alleging denial of procedural fairness or inadequacy of reasons. This is because they do not, in truth, encapsulate the real flaw in the primary judge’s reasoning. Thus it was accepted in the course of the respondent’s submissions that it was necessary for his Honour to have identified the risk of harm to which the appellant was allegedly exposed and then to determine in accordance with the balancing principle spoken of in Shirt , the reasonable response of the respondent to that risk. The respondent advanced its oral submissions on the appeal on this basis.

21 Having found that the appellant had provided adequate lighting of the slipway area but had failed to provide an access ramp over the slip rails for persons such as the respondent to traverse on their way to and from the ice room, and to define the height of the slip rails by painting them with phosphorescent paint, his Honour concluded that the appellant had been negligent in circumstances where the respondent had failed to recognise the difficulties of traversing the slip rails whilst carrying up to 20 kilograms of ice at his age. With respect, this reasoning is difficult to follow and is erroneous. This is because the primary judge asked himself the wrong question. In particular, having accepted that there was a duty upon the appellant to take reasonable care for the safety of the respondent given its knowledge that its elderly members traversed the three sets of slip rails in order to access the ice room so that it was reasonably foreseeable that such persons might trip over one of the exposed slip rails, his Honour failed to determine the reasonable response of a person in the position of the appellant to that risk.

22 The primary judge’s reasoning process appears to have been as follows:


(a) The appellant owed the respondent a duty to take reasonable care for his safety in traversing, whether by day or night, the slipway in order to gain access to the ice room;

(b) The appellant had provided adequate lighting to that area;

(c) Nevertheless, it had failed to provide a raised access ramp over the slip rails so as to provide a level surface to those of its members who wished to traverse the slipway in order to gain access to the ice room;

(d) The respondent failed to recognise the difficulty of traversing the slip rails burdened by the weight of up to 20 kilograms of ice given his advanced years;

(e) Although he was taking reasonable care for his own safety, the respondent inadvertently, no doubt as a consequence of his failure to recognise the difficulties referred to in the preceding subparagraph, tripped on a slip rail causing him to fall and sustain injury.


(f) Therefore the appellant was in breach of its duty of care to the respondent.


23 His Honour’s process of reasoning which I have attempted to articulate is, with respect, in error. First, it fails to recognise, that the appellant did not owe a duty of care to its members to ensure that no harm befell them when traversing the slipway area but only a duty to take reasonable care. Second, the relevant enquiry is prospective and not retrospective. It is wrong to focus exclusively upon the particular way in which the accident came about. As Hayne J observed in Vairy v Wyong Shire Council [2005] HCA 62, (2005) 223 CLR 422 at 461 [124], the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of a duty of care which was a cause of the plaintiff’s injuries. The enquiry into the causes of an accident is wholly retrospective. The enquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. One of the possible answers to that enquiry must be “ nothing ”.

24 Although dissenting in the result in Vairy , McHugh J (at 433 [28]) observed that although there were a range of factors that determined when the common law will impose on a defendant a duty to take reasonable care for the safety of a plaintiff, there are no factors other than the Shirt formula by which the common law defines the standard of reasonable care required in a particular case. The difficulty in the present case is that the primary judge did not purport to apply that formula.

25 As was pointed out by Gummow J in Roads & Traffic Authority of NSW v Dederer [2007] HCA 42, (2007) 238 ALR 761 at 778 [59], it was necessary for the primary judge to accurately identify the actual risk of injury to which the respondent was exposed. It is only through the correct identification of that risk that one can assess what a reasonable response to that risk would be. In the present case, the relevant risk was that an elderly member of the appellant, carrying his fishing gear including ice, might misjudge the position or height of one of the slipway rails and thus trip, fall and suffer injury.

26 No doubt one of the responses by which that risk could be eliminated in discharge of the appellant’s duty of care would be to provide a level surface across that section of the slipway used as a walkway to the ice room. But Shirt is not authority for the proposition that there is necessarily a breach of duty if the risk of injury is reasonably foreseeable and removal of that risk by the adoption of simple and cheap measures is practicable but not undertaken. As Heydon JA, with whom Meagher JA and Foster AJA agreed, observed in Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at [83], such a reading of Shirt would be fallacious as the proposition that the suggested measures
“would have been a cheap and practical response to the foreseeable risk begs the question of whether it was necessary for the defendant to embark on that response … Mason J [in Shirt ] left open as the response of a reasonable person the course of doing nothing instead of adopting the simple and cheap measures.”
27 A similar point was made by Hayne J in Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 at 631 [318] where he observed:
“As I have said, however, the search for some unifying principle or principles which will explain why an analogy has been drawn with previous authority in some cases but not others has so far proved unsuccessful. All that emerges is that foresight of harm, and capacity to avoid it, has been said not to be enough. Something more’ must be found. If, however, the expansion of duty of care continues on its current path, foresight of harm and capacity to avoid it will become the only criteria which underpin the imposition of a duty of care. In that event, duty of care would serve no purpose in identifying the cases in which liability is to be found. The only questions would be whether a defendant in fact acted without reasonable care, or failed to act when it would be reasonable to do so, and whether that act or omission was a cause of the plaintiff’s loss or damage.”

28 The factors to be taken into account when applying the Shirt principle are well known. They include a consideration of the magnitude of the risk and the degree of the probability of its occurrence. In the present case it could be fairly said that the magnitude of the risk was neither high nor low in that a person tripping on a slip rail and falling was likely to sustain some injury to himself or herself but not necessarily one that was catastrophic. On the other hand, the probability of its occurrence in the present case was low given that the evidence was that there had been no similar incident in the memory of those who gave evidence. One witness called on behalf of the respondent, a Mr Nicolettos, stated in cross-examination that on one occasion he had fallen over but had only incurred a couple of scratches and had not told anyone about the incident. When it was suggested to him that each and every time he walked across the slipway in his 10 years of membership he knew he had to be careful to avoid falling over or tripping on something such as a slip rail, he response was: “ Yes, of course, it’s like walking... ”.

29 The present is not a case where the appellant’s response to the foreseeable risk which I have identified was one of “ do nothing ”. It provided illumination of the relevant slipway area which his Honour found was in place and operational at the time of the respondent’s accident. Accordingly, the situation at night was the same as in daylight in that the slip rails were illuminated and clearly visible to those members of the appellant who traversed the slipway area for the purpose of accessing the ice room.

30 As his Honour found, the risk of bumping into a slip rail was one which was obvious within the meaning of s 5F of the Act . As I understand that finding, it was that the relevant risk was obvious both to the appellant and to the respondent.

31 Obviousness to the respondent was irrelevant other than for the purposes of s 5G of the Act or on the issue of contributory negligence. Obviousness to the appellant, however, was of relevance in considering the probability of occurrence of the risk in question for the purposes of applying the Shirt formula. Thus in Vairy at 470 [163], Hayne J said:
“The probability of occurrence of a risk that is not apparent on casual observation of the locality or of a set or circumstances may be higher than the probability of occurrence of a risk that is readily apparent to even the casual observer. But the focus of enquiry must remain upon the putative tortfeasor, not upon the person who has been injured, and not upon others who may avoid injury.”
32 Obviousness of risk was also referred to in the joint judgment of Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ in Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19, (2005) 221 CLR 234 at 246-247 where the following was said:

“[36] The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response. There are, for instance, no risk-free dwelling houses. The community's standards of reasonable behaviour do not require householders to eliminate all risks from their premises, or to place a notice at the front door warning entrants of all the dangers that await them if they fail to take care for their own safety. This is not a case about warnings. Even so, it may be noted that a conclusion, in a given case, that a warning is either necessary or sufficient, itself involves an assumption that those to whom the warning is addressed will take notice of it and will exercise care. The whole idea of warnings is that those who receive them will act carefully. There would be no purpose in issuing warnings unless it were reasonable to expect that people will modify their behaviour in response to warnings.
[37] The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration.”

33 The fact that the appellant, in circumstances unrelated to the respondent’s accident, subsequently adopted a course which the respondent now says it should have adopted at an earlier point of time, does not necessarily lead to the conclusion that in the circumstances it was unreasonable for the appellant not to have adopted that course in order to eliminate the relevant risk. The response to that risk must be one which is reasonable in all the circumstances at a point of time immediately prior to the accident that gives rise to the inquiry.

34 The duty imposed upon the appellant was no more and no less than one of reasonable care. Given that the determination of breach of duty must be one which is determined prospectively and not retrospectively without the benefit of hindsight, in my opinion the exercise of reasonable care did not require the appellant to take any steps to eliminate the relevant risk other that which it had already taken, namely, to ensure that the relevant area of the slipway was fully illuminated at night.

35 It follows from the foregoing that in my view the primary judge erred in failing to apply the Shirt formula in order to determine whether the appellant was in breach of its duty of care to the respondent. Had he done so, he ought to have concluded that the failure of the appellant to provide an access ramp across the slip rails in order to provide a level surface for persons such the respondent to traverse and/or its failure to define the height of the slip rails by painting them with phosphorescent paint, given that the rails were clearly visible both during the daytime and at night, did not constitute a breach of that duty.

36 For completeness I would add the following observation. The respondent said that he was looking down at the slip rails and that carrying 15 kilos of ice was not cumbersome. The primary judge found that the area where the slip rails were located was illuminated and that the respondent’s tripping over one of the rails was inadvertent. In these circumstances causation was at least questionable. However, it is unnecessary to express a concluded view on that issue.

Conclusion


37 In my opinion the primary judge erred in finding that the appellant had breached its duty of care to the respondent. His Honour’s reasoning process was flawed but even if he had applied the Shirt formula as he clearly was obliged to do, then he ought to have found that no further response was reasonably required by the appellant to the potential risk associated with its members of the appellant traversing the slipway area in the manner adopted by the respondent.

38 Accordingly, I would propose the following orders:


(a) Appeal allowed.

(b) Set aside the orders made by his Honour Judge McLaughlin on 31 January 2007 and in lieu thereof enter a judgment and verdict for the appellant.

(c) The respondent to pay the appellant’s costs of the proceedings in the District Court and of the summons for leave to appeal and the appeal but to have with respect to the latter a certificate under the Suitor’s Fund Act 1951 , if otherwise qualified.


39 HANDLEY AJA : The relevant facts, and the history of the proceedings, have been set out by Tobias JA. I agree that leave to appeal should be granted despite the modest amount of the judgment and that the appeal should be allowed.

40 The respondent was familiar with the area having used it for about ten years. Rails are a normal feature of boatsheds. The area was well lit, the rails were obvious, and the respondent had crossed the rails safely on his way to get the ice and two of the three sets on his way back. The load of ice had not been a problem with the first two sets of rails and the respondent said that it was not a problem anyway.

41 The inescapable conclusion is that the respondent's action was caused by his inattention, or lack of care for his own safety. It is always possible after an accident to point to some further precaution that could have been taken that would or might have reduced the risk but that is not sufficient to establish negligence.

42 The steps that a defendant should have taken to avoid a foreseeable risk of injury must be considered prospectively and not retrospectively. The known use of this area by members and others in the hours of darkness created an obvious risk of injury but there was no evidence of any problems during daylight. The provision of strong illumination during the hours of darkness was a reasonable response and, as far as the club was concerned, there had been no problem for 10 years. Another member had tripped without suffering any significant injury but had not bothered to report the matter to the club.

43 The club had performed its duty to exercise reasonable care and was not required to do anything more.

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