Cheetham v Shire of Manjimup - [2009] WADC 169

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CHEETHAM -v- SHIRE OF MANJIMUP [2009] WADC 169

CORAM: SCOTT DCJ

HEARD: 22-23 OCTOBER 2009

DELIVERED : 10 NOVEMBER 2009

FILE NO/S: CIV 2233 of 2007

BETWEEN: SANDRA ALICE CHEETHAM
Plaintiff
AND
SHIRE OF MANJIMUP
Defendant

Catchwords:

Personal injury on camping grounds - Liability of local authority for injury - Relationship between common law and Occupiers' Liability Act - Relies on own facts

Legislation:

Civil Liability Act 2002
Local Government Act 1995
Main Roads Act 1930
Occupiers' Liability Act 1985

Result:

Defendant liable to plaintiff

Representation:

Counsel:

Plaintiff: Mr R V Lonnie
Defendant: Mr J Eller

Solicitors:

Plaintiff: Ian Watson
Defendant: John Eller

Case(s) referred to in judgment(s):

British Fame (Owners) v Macgregor (Owners) [1943] AC 197
Brodie Singleton Shire Council (2001) 206 CLR 512
Burwood Council v Byrnes [2002] NSWCA 343
Ghantous v Hawkesbury City Council (2001) 206 CLR 512
Homestyle Pty Ltd v Perrozzi [2007] WASCA 16
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Mulligan v Coffs Harbour City Council (2005) 223 CLR 486
Pennington v Morris (1956) 96 CLR 10
Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330
Shire of Gingin v Coombe [2009] WASCA 92
Vairy v Wyong Shire Council (2005) 223 CLR 422
Waverley Council v Ferreira [2005] NSWCA 418
Webb v South Australia (1982) 56 ALJR 912
Wyong Shire Council v Shirt (1980) 146 CLR 40

SCOTT DCJ:

Introduction

Windy Harbour is a holiday and camping area in Manjimup at which there are a number of huts 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 run‑off from the playground collects and, by gravity, flows into a culvert and into a drainpipe which is routed under an unsealed road ("unsealed road") which disperses the water out to sea. 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 hut after making a telephone call at the public telephone box, she fell into the culvert and injured her right leg.
The parties have agreed quantum. This trial is restricted to liability.
The issues which fall to be determined on the pleadings are as follows:
(a)Whether the defendant was the occupier of the camping grounds and particularly the culvert. In the amended statement of claim the plaintiff alleges that the defendant was, by reason of the provisions of the Occupiers' Liability Act 1985 ("OLA") the occupier of the camping grounds. The defendant denies that the OLA has any application and says that it controlled and managed the public thoroughfare and road reserve on Windy Harbour Drive pursuant to s 3.53(2) of the Local Government Act 1995 ("LGA").
(b)Whether the defendant is entitled to an immunity pursuant to s 5Z of the Civil Liability Act 2002 ("CLA"). The defendant contends that the culvert is within the meaning of the term "road" referred to in s 5Z(1) of the CLA as defined in s 6 of the Main Roads Act 1930 ("MRA") and that, as a consequence, the defendant is not, in any event, liable to the plaintiff unless it is proved to have had actual knowledge of the particular risk that caused the harm alleged by the plaintiff.
(c)Whether the provisions of s 5F of the CLA apply.
(d)The extent to which the defendant owed the plaintiff a duty of care and, if so, whether it breached that duty thereby causing the injury to the plaintiff. The plaintiff alleges that the defendant was charged with a duty of care pursuant to the provisions of the OLA and was in breach of that duty in the manner pleaded in par 5 of the amended statement of claim. In response the defendant denies the existence of the duty pleaded and any breach of duty and says further that any risk to the plaintiff consequent upon the existence of the culvert was obvious to the plaintiff and any injury, loss and damage was caused or contributed to by her negligence in failing to take proper care for her own safety.

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 uncontradicted.
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.
Exhibit 3 is a tourist drive map. That map shows the location of the playground, Windy Harbour Drive, the unsealed road, the ablution block and the telephone box.
Her mother and her husband travelled to the camping grounds to stay at hut 92 during Friday 18 March 2005 and the plaintiff and her husband drove down after work on the Friday evening and arrived at about 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 drove from Manjimup to 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 oil with them.
At about 9.30 pm she and her husband, who had their dog on a leash, 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 Harbour Drive and the other was to cut across the playground to the telephone box.
She described the spoon drain which circled the outside of the playground which acted as a draining system to the playground. 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 hut 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 right of a roped fence and then walked over the unsealed road to the telephone box.
There was a lit spotlight at the ablution block (which, 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 no light in it.
After finishing her call to her son's girlfriend she stepped out of the telephone box at which 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 unsealed 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) as a consequence of which she broke her leg.
She said that her husband took photographs of the culvert a week after the incident. Those photographs are Exhibits 7.1 ‑ 7.3.
She identified those photographs as depicting the state of the culvert at the time of the incident. The photograph in Exhibit 7.1, 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 white 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 culvert. This photograph also depicts what appears to be a part of a white stake in the culvert.
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 unsealed 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 ‑ 4.8. They show that there was then erected 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 are a number 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 which she, in her evidence, confirmed to be true.
In essence that statement was consistent with the evidence that she gave at 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 hole before I fell into it.
In the report from Mr O'Reilly he said that:
(a)"On attending the Shire of Manjimup we spoke with Ms Tracey Padgett, the Shire's senior administration and properties officer. Ms Padgett advised that the Shire employs an on‑site caretaker, Mr John Old, who is responsible for the ongoing maintenance of the area. Ms Padgett further advised that the Shire constructed the culvert/drain surrounding the playground/oval 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 Edward 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, being part of an open drain which collects water run off from the oval and surrounding grounds. At the time of this incident two white road marker posts were erected 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 turn 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 has 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 playground/oval."
As part of Mr O'Reilly's report there were seven photographs 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 eastern side of the culvert. From the photographs taken by the plaintiff in July 2008 it appears that this rope was replaced by the rail 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 full 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 numbered 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 Exhibit 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" pursuant to the provisions of the OLA. The nature and extent of that statutory duty of care is not then pleaded.
Section 5(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 any such danger."
Section 5(4) of the OLA provides:
"Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to –
(a)the gravity and likelihood of the probable injury;
(b)the circumstances of the entry onto the premises;
(c)the nature of the premises;
(d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;
(e)the age of the person entering the premises;
(f)the ability of the person entering premises to appreciate the danger; and
(g)the burden on the occupier of eliminating the danger or protecting the person entering premises from the danger as compared to the risk of the danger to the person."
There is no claim made by the plaintiff at common law. The plaintiff's claim is confined to a cause of action pursuant to the OLA.
In the amended statement of claim the breaches by the defendant of the duty of care alleged to have been owed by it were as follows.
The defendant:
(a)failed to ensure that the said open hole into which the plaintiff fell/tripped was cordoned/barricaded off or around in such a way as to prevent accident/injury of the kind that ensued;
(b)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 area of the playground surface levelled with its surrounds or the hole was securely covered over, for example with a heavy metal lid;
(c)failed to display hazard lights around the said open hole so as to warn persons approaching of the risk of danger;
(d)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;
(e)failed to place or erect any warning signs to persons approaching in the area of the said hole as to the danger ahead;
(f)exposed the plaintiff to the risk of injury of the kind that ensured which could have been avoided by the exercise of reasonable care on the part of the Defendant;
(g)failed to ensure that the drain contained swales which were broad and shallow;
(h)failed to ensure that the culverts making up the open hole should transition to swales not waterfall into them;
(i)failed to reduce the slope of the shoulder of the road by the hole;
(j)failed to eliminate a direct pedestrian path over the hole from the east/west 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.
In its defence (par 3) the defendant pleads that the OLA has no application to the plaintiff's claim and says that it controls and manages the public thoroughfare and road reserve on Windy Harbour Drive pursuant to s 3.53(2) of the LGA.
The defendant does not define "public thoroughfare and road reserve on Windy Harbour Drive" and there is no evidence led as to the basis upon which the unsealed road or Windy Harbour Drive may be an "otherwise unvested facility" within the meaning of that term in s 3.53(1) of the LGA.
Pursuant to s 3.53(1) of the LGA the term "otherwise unvested facility" means a thoroughfare, bridge, jetty, drain or water‑court belonging to the Crown, with responsibility for controlling or managing which is not vested in any person other than under this section.
By s 3.53(2) "a local government is responsible for controlling and managing every otherwise unvested facility within its district …".
Be that as it may from the evidence contained in the report from Mr O'Reilly (Exhibit 1) which was exhibited by consent, Ms Padgett, 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 – CLA

One of the issues which falls for consideration is the interrelationship between the common law and the CLA. And thereby the extent to which the common law relating to any duty of care owed by the defendant, any breach of such duty and causation is applicable such that the relevant common law principles may be applied in this case. To that end both counsel approached this case, in their written submissions, on the basis that the common law principles developed in the case law are applicable. In Homestyle Pty Ltd v Perrozzi [2007] WASCA 16 Buss JA considered the authorities in which the relationship 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 enunciated in cases relevant to the plaintiff's claim.

Duty of care

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 foreseeable in respect of risks of physical injury arising out of the condition of the premises: Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 263 [17]. Public authorities are subject to the same principles governing 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 which the duty is asserted will be relevant to the ascertainment of their content: Shire of Gingin v 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 that class.. In Mulligan v Coffs Harbour City Council (2005) 223 CLR 486 McHugh J accepted 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 individuals [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 duty. 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 class, including 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 v Coombe (supra); Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330 per Gummow J at [47].

Having regard to the passage cited 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.
The limitation relating to "users exercising reasonable care for their own safety" was questioned by McLure JA in Shire ofGingin v Coombe at [113] et seq where her Honour said:
"113.Sections 5 to 7 of the [OLA] replaced the common law rules (s 4).
…
114There appears to be a suggestion that the duty owed by the appellant to the respondent was, as a matter of law, to exercise reasonable care so that the Lancelin Off Road Vehicle Area was safe 'for users exercising reasonable care for their own safety'. If that is the intended proposition, I make the following observations. First, that is not the law applied by the trial judge nor is the omission a ground of appeal. Secondly the limitation that premises be safe for users exercising reasonable care for their own safety was a special duty under the law of occupier's liability as it stood before the decision in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. The High Court in Zaluzna held that the general law of negligence was the sole source of an occupier's liability.
115Thirdly, I do not understand the limitation to form part of the general law of negligence although it may apply to the special case of non‑feasance by a highway authority … Fourthly, if it does represent the general rule, I am not presently persuaded that it applies to a duty under s 5 of the [OLA]."
Even if her Honour is correct in this view, for the reasons to which I refer later in this judgment, the issue is of no moment in this case.

Standard of care

Section 5B of the CLA provides:
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless –
(a)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
(c)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, the Court is to consider the following (amongst other relevant things) –
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
In Waverley Council v Ferreira [2005] NSWCA 418 Ipp JA considered the provisions of s 5B of the Civil 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 Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40.
In Wyong Shire Council v Shirt (supra) Mason CJ said (at [47] ‑ [48]) in the context of negligence generally:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant'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 affirmative, it is then for the tribunal to determine what a reasonable man would do by way of response to the risk. But perception of a reasonable man's response called for a 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. 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 man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far fetched or fanciful is real and therefore foreseeable."
The standard of care i.e. 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 Pty Ltd v Perozzi (supra) at [36]. In Brodie Singleton Shire Council (2001) 206 CLR 512 Gaudron, McHugh and Gummow JJ said [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 Callinan J 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 uneven 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 or the surrounding area. … In such circumstances, there may be a foreseeable risk of harm even to 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 pedestrians 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 eliminate obvious hazards which could possibly be an occasion of harm … 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 must 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 v Wyong Shire Council (2005) 223 CLR 422 Hayne J 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 calculus' 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 J in Wyong Shire Council v Shirt (supra) are to be asked and answered with that perspective. Thus, before the appellant was injured, would a 'reasonable man in the [Council's] position … have foreseen that his conduct involved a risk of injury to the [appellant] or to a class of persons including the [appellant]'? If the answer to that question is affirmative, '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 J 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 any duty owed by the defendant 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 huts and/or guests of various ages;
(c)the camping grounds included a grassed playground incorporating swings;
(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 drain to the telephone box;
(g)there was only a few feet of walkway between the white post on the left hand side of the culvert (as one is walking towards the direction of the telephone box) and the culvert itself;
(h)at 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 culvert was the spotlight near the ablution block about 20 metres from the culvert. That light turned off automatically by a timer 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 culvert itself;
(j)the area between the unsealed road and the culvert sloped down to the culvert;
(k)a 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 alia the culvert;
(l)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 towards, 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 one) of stepping into or 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 run 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 torch 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 culvert 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. As she said in her evidence:
"… when you come from the phone box heading back the way we come, across the road, the ground looks level, but it is actually a drop‑off at the drain …" (T40)
"It was dark at the time … it (the culvert) was not in my vision of sight. I had my torch on and was doing a broad spectrum with my torch." (T42)
"Q:Again, your evidence, I think is that you simply didn't see it?
A:That is correct.
Q:Now, the proposition I put to you is that if you'd been paying proper attention, surely you would have seen this culvert?
A:Not from the angle of the culvert to where – where it's situated at the end of the road.
Q:Even though you'd been past it before?
A:Yes.
Q:Even though you knew it was there?
A:Yes.
Q:So the proposition then is that if you knew it was there, you'd been past it before, surely it would have been in your mind to avoid it.
A:I thought I had."
In my view there was a significant probability that harm 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 have brought to the defendant's attention the risk which the culvert presented. In Webb v South Australia (1982) 56 ALJR 912 Mason, Brennan and Deane JJ 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 possibility that a pedestrian, because he was in a hurry 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 avoid injury to himself. …
Of course a pedestrian could avoid the possibility of injury by taking due care. However, the reasonable man does not assume that others will always take due care; he must 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 care by looking where they are going and perceiving and avoiding obvious hazards. Some allowance must of course be made for inadvertence. Each case will turn on its own facts Homestyle Pty Ltd v Perozzi 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 duty owed to the plaintiff. To that end the breaches of duty particularised in par 5(a)(d)(i) and (j) of the amended statement of claim are made out.

Causation

The plaintiff must establish that the breach of duty on the part of the defendant was causative of the harm sustained by her both at common law, in accordance with s 5C of the CLA and the provisions of the OLA.
I am satisfied that the breach of duty on the part of the defendant found by me caused the plaintiff to suffer injury.
The defendant raised certain issues pertaining to the CLA. I deal with these as follows:

Section 5F of the CLA

The defendant pleads that s 5F of the CLA applies. Section 5F merely defines "obvious risk" for the purposes of that Act. It seems to me that the only relevant reference may be to s 5I of the CLA. That section however relates to an avoidance of liability in the event that there is a risk warning.
In the amended statement of claim the plaintiff pleads that the defendant failed to ensure that the culvert being part of a swale around the perimeter of the oval, was distinguished with appropriate warnings [par 5(e) and (k)]. However that in my view is not a maintainable consideration given that the plaintiff was aware of the existence and location and substance of the culvert.
Section 5I of the CLA is not relevant to the disposition of the plaintiff's claim. Similarly, the provisions of s 5O of the CLA have no application given my findings as to the defendant's breach of duty.

Section 5L of the CLA – presumption if person who suffers harm is intoxicated

This provision is raised by the defendant. There is however in my view no evidence from which I could be satisfied that the plaintiff was intoxicated at the time that she fell into the culvert.
The plaintiff gave evidence, corroborated by her husband, that she drank one can of Jim Beam mix in the car on the way to the camping grounds and one further can of that mix when preparing dinner.
I find that the plaintiff was not intoxicated.

Section 5Z – protection for road authorities

The defendant pleads that by reason of this provision there is an immunity in favour of the defendant against the plaintiff's claim.
Section 5Z of the CLA is in the following terms:
"(1)In this section —
carry out road work means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road;
road has the meaning given to that term in the Main Roads Act 1930 section 6;
roads authority, in relation to a road, means a public body or officer whose functions include carrying out road work on that road.
(2)A roads authority is not liable in proceedings to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the failure the authority had actual knowledge of the particular risk that caused the harm.
(3)This section does not operate —
(a)to create a duty of care in respect of a risk merely because a road authority has actual knowledge of the risk; or
(b)to affect any standard of care that would otherwise be applicable in respect of the risk."
Section 6 of the MRA defines "road" in the following terms:
"road means any thoroughfare, highway or road that the public is entitled to use and any part thereof, and all bridges (including any bridge over or under which a road passes), viaducts, tunnels, culverts, grids, approaches and other things appurtenant thereto or used in connection with the road."
The defendant submits that the drainpipe into which water flows around the spoon drain and into the culvert is constructed under the unsealed road and under Windy Harbour Drive and the culvert falls within the definition of "road".
In the defendant's outline of submissions the defendant says that the plaintiff must therefore establish that the defendant had actual and/or constructive notice of a particular risk that is said to have caused the harm to the plaintiff.
Colin Stewart Crombie ("Mr Crombie") was called to give evidence by the plaintiff. Mr Crombie was previously a councillor for the defendant for 15 years as well as Shire President for three years.
He gave evidence that the camping grounds were a Class A reserve and there was nothing to prevent members of the public having access to the roads in the reserve.
In par 3 of the defence specific reference is made to the "public thoroughfare and road reserve on Windy Harbour Drive".
Exhibit 3 is the tourist drive map. On that map Windy Harbour Drive is depicted. The unsealed road is not named albeit that it culminates in Windy Harbour Drive.
The defendant submits that the culvert is appurtenant to that unsealed road and/or Windy Harbour Drive (as I understand it) or is used in connection therewith because the drainpipe into which water flows from the culvert is constructed underneath those roads.
The plaintiff says that the drainpipe is utilised to carry away the water from the playground which flows from the spoon drain into the culvert and if the roads were not in situ the drainpipe would still be utilised to disperse that water.
There was no evidence as to the utility of the drainpipe or the culvert which was in any way referable to the construction or proximity of those roads.
In the Shorter Oxford English Dictionary the word "appurtenant" is defined as "belonging (to) as a (subsidiary or incidental) property, right, or privilege … relating, pertinent".

I do not consider that the culvert (or the drainpipe) can on the evidence be said to have been appurtenant to or used in connection with the unsealed road or Windy Harbour Drive.
If I am wrong in that conclusion I am, in any event, satisfied that the defendant had actual knowledge or at least constructive knowledge of the risk that a user of the camping grounds may fall into the culvert and be injured at night particularly when there was no lighting from the spotlight. The defendant employed Mr Old as an onsite caretaker to whom that risk must have been obvious. Mr O'Reilly's report of the conversation with Mr Old makes that plain.

Contributory negligence

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 fact or law, but of proportion, of balance and a relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds": British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201.
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 v 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).
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.
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 hut in which she was staying.
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 torch as she walked back towards the playground after making her telephone call.
There was no evidence that in walking back towards the playground from the telephone box she was doing otherwise than keeping a careful lookout. The 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.
She said that the culvert was lower than the level of the unsealed road and the grass upon which she was walking and that seems to me to be borne out by the photographs which have been exhibited.
She was using the torch by "doing a broad spectrum" which I take to mean that she was shining 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 which was by then off.
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 culvert was a matter of feet 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.
In these circumstances I do not consider the plaintiff to have been contributorily negligent.