Collins v Hunt - [2007] SASC 123

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
COLLINS v HUNT & ANOR
[2007] SASC 123
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Anderson)
5 April 2007
TORTS - NEGLIGENCE - DANGEROUS PREMISES - INJURIES TO PERSONS ENTERING PREMISES
LIABILITY OF OCCUPIER GENERALLY
Appellant injured when she fell over a wooden bench seat at a private party held on a rural property at night – whether sufficient lighting at time of fall – in particular whether two spotlights were operating at time of fall – trial judge found spotlights were operating and that lighting was adequate – whether occupiers in breach of duty of care to appellant – whether proper measures taken to prevent risk of injury having regard to provisions of s 17C of the Wrongs Act 1936 (SA). Appeal from findings of trial judge that lighting was adequate and that there was no breach of duty of care. Held (by majority): trial judge's findings of adequate lighting correct and that there was no breach of relevant standard of care having regard to s 17C - appeal dismissed.
Wrongs Act 1936 (SA) s 17C; Civil Liability Act 1936 (SA) s 20, referred to.
Wyong Shire Council v Shirt (1980) 146 CLR 40, distinguished.
Neindorf v Junkovic (2005) 80 ALJR 341; Brodie v Singleton Shire Council (2001) 206 CLR 512; Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, considered.

COLLINS v HUNT & ANOR
[2007] SASC 123
Full Court: Doyle CJ, Debelle and Anderson JJ

DOYLE CJ: I would dismiss the appeal. I agree with the reasons given by Anderson J. There is nothing that I wish to add.
DEBELLE J. The appellant Ms Collins was a guest at the second defendant’s 50^th birthday party on 21 October 2000. The venue for the party was a woolshed and an adjoining paddock at a farm property owned by the defendants, Mr and Mrs Hunt. In the course of the evening, while walking across the paddock, Ms Collins fell over a low wooden bench and sustained injuries. Ms Collins brought an action in the District Court claiming damages for negligence. Damages had been agreed in the sum of $96,000. However, liability was denied. The action was dismissed. Ms Collins appeals against that decision.
The woolshed was surrounded on two sides by a large open area. The open area was called a paddock in the evidence. Its surface was not entirely even. At one end of the woolshed was an open verandah with an entrance to the woolshed. The verandah looked over a driveway and part of the paddock.
The birthday celebration was to begin at 8pm. However, a number of the guests, including Ms Collins, arrived at the property in the course of the afternoon. Ms Collins had visited the property as a guest on a number of previous occasions. She was familiar with the area where the party was held. She gave evidence that she looked about the vicinity of the woolshed. She saw that there was to be a large bonfire and that some low wooden benches had been placed around the proposed bonfire. The defendants had obtained the benches from a school. The area between the woolshed and the proposed bonfire was clear.
The Lighting
The party was held in late October. The evidence was that it was dark after 8pm. The defendants took some steps to provide lighting. The main lighting outside the woolshed was provided by four spotlights but they did not all illuminate the paddock. I deal with each.
·The first spotlight pointed in a north-easterly direction away from the paddock across which Ms Collins walked and did not illuminate it.
·The second spotlight was fixed under the verandah of the woolshed and was intended to illuminate it. The spotlight was aimed up to the roof of the verandah. It did not illuminate the paddock.
·The third spotlight shone in a generally easterly direction towards the driveway to the woolshed. It illuminated the area generally to the east and would have provided little, if any, lighting as one walked towards the fire.
·The fourth spotlight was placed on top of a rainwater tank at the south-eastern corner of the woolshed about 15 feet high. It was placed so as to illuminate the paddock in the south-easterly direction towards the bonfire.
The defendants endeavoured to place the spotlights so that they would not shine into the eyes of the guests. They did not succeed in that object. One of the witnesses, Mr Chapman, said that the glare from the spotlight on top of the rainwater tank made it difficult to see. The defendants intended that the external spotlights would be the means by which to illuminate the paddock and the car parking area. As the car park was north of the paddock and the spotlight for it was aimed in a north-easterly direction away from the paddock, that spotlight would have provided little illumination of the open area of the paddock. The only lighting which effectively illuminated the open area of the paddock was the spotlight which had been placed on top of the rainwater tank.
The defendants gave evidence of other features which they asserted provided additional sources of lighting.
·Two 44 gallon drums containing fires were placed on the driveway. They contained burning wood. As Mr Hunt said, their main purpose was to provide warmth. The flames of each of the fires provided a little light. The drums were not in a position to illuminate the paddock where Ms Collins fell. Plainly, any illumination from the fires would not be cast very far.
·A string of coloured party lights were strung along the front of the open verandah about five to ten metres from the place where Ms Collins fell. It is highly unlikely that they would have lit the area where she fell.
·Lights were on in the woolshed. It was well lit. Any light spilling from the woolshed would be unlikely to illuminate the area where Ms Collins fell.
·Bamboo flares, or as some witnesses described them Roman candles, were placed along the fence line of the driveway. They were not in a position to light the area where Ms Collins fell.
·Finally, the bonfire cast a general light. As it was about 10 to 20 metres from the point where Ms Collins fell, it would provide little light at that point.
It is apparent from this description that, while the defendants had taken steps to illuminate the paddock, it could not be said that the paddock was fully lighted. Although the defendants had provided two spotlights, only one provided lighting to the paddock. In addition, shadows would be cast by guests moving about and by guests standing in groups and talking. There were some 100 to 120 guests at the party.
Was the Lighting Switched On?
The evening’s festivities included a fireworks display. It began at 9.30pm. Ms Collins remained in the woolshed during the display. Two spotlights were turned off during the fireworks display. One of those lights was the spotlight on top of the tank. After the fireworks had finished, she remained in the woolshed talking to other guests and dancing. A band was part of the entertainment. Ms Collins believed that she remained in the woolshed for about one hour. She then decided to go over to the bonfire. She walked quite briskly towards the bonfire. When doing so, she fell over a bench which had been moved some distance from the bonfire and sustained injury.
There was an issue whether the two spotlights had been turned on again after the fireworks when Ms Collins walked toward the bonfire. I am satisfied that there is no basis for interfering with the finding of the trial judge that the spotlights had been turned on again when Ms Collins set off towards the bonfire. That leaves the question whether the area was in all the circumstances adequately illuminated. The trial judge held that it was. On that footing, he found that the defendants were not negligent. For the reasons which follow that conclusion is wrong. More importantly, the question of the adequacy of the lighting is not the only fact relevant to the question whether the defendants were negligent. Another question is whether the defendants failed to take reasonable measures to prevent any of the benches from being moved.
The Standard of Care
The defendants had conceded that they owed a duty of care to the plaintiff. The issue at the trial concerned the standard of care. The relevant factors are listed in s 17C of the Wrongs Act 1936, the legislation in force of the date of this incident. The relevant provisions are s 17C(1), (2) and (3) which provide:
(1) Subject to this Part, the liability of the occupier of premises for injury, damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence.
(2)In determining the standard of care to be exercised by the occupier of premises, a court shall take into account –
(a)     the nature and extent of the premises; and
(b)     the nature and extent of the danger arising from the state or condition of the premises; and
(c)     the circumstances in which the person alleged to have suffered injury, damage or loss, or the property of that person, became expose to that danger; and
(d)     the age of the person alleged to have suffered injury, damage or loss, and the ability of that person to appreciate the danger; and
(e)     the extent (if not all) to which the occupier was aware, or ought to have been aware, of –
(i)    the danger; and
(ii)    the entry of persons onto the premises; and
(f)    the measures (if any) taken to eliminate, reduce or warn against the danger; and
(g)     the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger; and
(h)     any other matter that the court thinks relevant.
(3)The fact that an occupier has not taken any measures to eliminate, reduce or warn against a danger arising from the state or condition of premises does not necessarily show that the occupier has failed to exercise a reasonable duty of care.
As Gleeson CJ said in Neindorf v Junkovic (2005) 80 ALJR 341 at [11] the test prescribed by s 17C (and by what is now s 20 of the Civil Liability Act 1936) represents a generalised standard of care being what a reasonable person would, in all the circumstances, do by way of response to foreseeable risks.
A Foreseeable Risk
I first consider whether a foreseeable risk existed on this evening.
The paddock was an open area across which the Hunts expected their guests to walk, to stand around talking, or to be seated on the benches. The fact that the defendants had placed benches around the bonfire demonstrated that they expected guests to walk between the woolshed and the bonfire. The manifestly obvious purpose of the defendants in providing lighting was to avoid the clearly foreseeable risk that guests might stumble and fall if there had been no lighting. It was plainly foreseeable that people would walk between the woolshed and the bonfire and would stand about the bonfire if not also stand about the woolshed and the bonfire.
It was reasonably foreseeable that guests would move the benches. That is not to apply the wisdom of hindsight but to recognise the fact that it is quite common for guests to rearrange seating in the course of social interaction during an informal occasion of this kind. It was also reasonably foreseeable that a guest walking across this open area at night, when the lighting would be relatively poor, might not see a bench which had been moved and stumble over it. The fact that it was reasonably foreseeable that guests will move benches leads to the conclusion that it was reasonably foreseeable that a guest walking across the paddock at night might stumble over a bench which had been moved away from the fire unless the bench had been moved to a place which was well lighted.
An occupier of premises is generally entitled to assume that most entrants will take reasonable care for their own safety: Brodie v Singleton Shire Council (2001) 206 CLR 512 at [163] per Gaudron, McHugh and Gummow JJ adopting Kirby J in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 478. The fact that the Hunt’s party was held at night obviously required that each guest would have to exercise reasonable care for his or her own safety and the Hunts were entitled to assume that they would take reasonable care. Guests would have to exercise care when walking across the open area which had an uneven surface. However, guests could reasonably expect that the open area would remain clear and that they would not come across an unexpected obstacle like a low bench. That was especially so in the case of those guests like Ms Collins who had arrived in daylight hours and who had seen that the open area of the paddock between the woolshed and the bonfire was clear of obstacles save for the benches around the bonfire. Ms Collins had seen that the open area was clear of objects. In addition, when walking across an open paddock, one does not expect obstacles such as a low bench or indeed any other kind of obstacle. Nor can it be reasonably said that Ms Collins should have addressed the likelihood that the bench had been moved and, in particular, moved quite a distance from the bonfire. It was not unreasonable for her to assume that the open area of the paddock was still clear when she set off to walk towards the bonfire. When she began walking towards the fire, Ms Collins was, therefore, entitled to assume that she would not encounter any obstacle until she neared the fire. She fell some distance from the fire.
Ms Collins had been to parties in the country before where a bonfire at night was part of the entertainment. She knew that she had to take care when walking across the paddock at night. She was expecting to walk across an uneven surface. She was not expecting to find obstacles in what had been an open area clear of any obstacles.
In addition, Ms Collins was wearing footwear which was appropriate for the occasion. She was wearing boots with a low heel. It was not suggested that she was wearing inappropriate footwear. As it was dark when she was walking towards the bonfire, she was not in a position to know that she was walking towards an obstacle which was capable of causing her to fall. Because of the state of the lighting, Ms Collins was walking across part of the open area unaware that a low bench was in her path.
Some allowance must be made for inadvertence even by persons exercising reasonable care for their own safety: Brodie v Singleton Shire Council (2001) 206 CLR 512 per Gaudron, McHugh and Gummow JJ at [163]. They said:
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. (Citations omitted).
Although Their Honours were speaking of a duty owed by a council to pedestrians, the proposition applies with equal force in the case of an occupier of premises holding a party outside at night.
A Dangerous Obstacle
The Hunts had created a danger in introducing to the open area of the paddock an unnatural feature in the form of the benches. The Hunts expected their guests to walk across this open area. If one or more benches were moved, it was reasonably foreseeable that a guest would fall over them at night. While a bench was obvious in daylight, it was clearly a danger at night unless there was sufficient lighting to illuminate it. This would be especially so in the case of a person walking towards the fire when attention would naturally be focused on the fire and the persons standing near it. The bench was not obvious and it was not a danger of which Ms Collins could or should have been aware. The bench constituted an unexpected obstacle in the dark. In addition, the risk of a person’s attention being distracted by another calling to him or her was reasonably high. As already noted, some allowance must be made for inadvertence. The Hunts ought to have foreseen the reasonable possibility that a bench or benches would be moved to a place where they would not be readily visible and so constitute a danger. It was a real and hidden danger in the sense that it would be likely that a person who did not see it would fall over it and suffer injury. The risk that one or more of the benches might be moved was neither far-fetched nor fanciful. I repeat, it is not at all uncommon for seating to be moved in the course of an informal occasion of this kind.
The plain fact is that there are obvious risks which attend holding a party or other function outdoors at night unless the place where the function is held is well lighted. Ordinary experience is a sufficient yardstick by which to reach that conclusion. The defendants were obviously aware of the risks of holding a party where guests would be walking about outside at night. They sought to deal with that risk by providing some lighting. One question is whether the lighting was sufficient. In addition, for the reasons above, it was reasonably foreseeable that one or more of the benches might be moved so that steps would have to be taken to prevent that and ensure that the open area of the paddock was sufficiently well lighted so that guests would be able to see any obstacles while walking across the open area. The judge made no finding on the question whether the defendants were aware that there was an additional risk that one or more of the benches might be moved and that one of the guests might fall over it. The evidence shows that the defendants were not aware of the risk and failed to take any step to prevent it.
The next question is whether the defendants took reasonable and practical steps either to prevent the benches from being moved or, if not, to ensure that the open area of the paddock was sufficiently well lighted that a bench would be seen if moved.
Reasonable and Practicable Measures
Section 17C(2) list the matters to which a court must have regard when determining the standard of care to be exercised by the respondent. When taking account of those matters, it is also necessary to bear in mind the terms of s 17C(3). Hayne J expressed the position in these terms in Neindorf v Junkovic at [91]:
In particular, demonstrating that an occupier “was aware, or ought to have been aware of” both “the danger” that led to an entrant being injured and “the entry of persons onto the premises” does not require the conclusion that the occupier should have taken some step to eliminate, reduce or warn against that danger. Rather, it is necessary to take account of all of the matters specified in s 17C(2), including “the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger.” (emphasis added).
Thus, an assessment must be made as to what would have been reasonable and practicable for the occupier to do, an exercise not to be taken in hindsight: Neindorf v Junkovic at [92] and [93] per Hayne J. In addition, the enquiry is not to be confined to what could have been done to illuminate, reduce or warn against the danger. Asking what could have been done will reveal what was practicable. It is also necessary to ask whether it would have been reasonable for the occupier to take those measures: Neindorf v Junkovic per Hayne J at [93].

In short, it is necessary to determine without the benefit of hindsight whether there were reasonable and practicable measures which could have been taken by the defendants: cf Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48. This court is in just a good a position as the trial judge to make these findings of these issues, particularly as the judge did not make any findings as to the credit of the witnesses. A further reason why this court can make these findings is that the trial judge did not address the issues flowing from the fact that Ms Collins was walking towards the bonfire or the likelihood that benches might be moved.
Preventing Relocation of Benches
There was no suggestion in the evidence that the Hunts took any step to prevent the risk of seating being moved or to warn of the danger. It was not unreasonable for them to place seating near the fire but, if they did so, the exercise of reasonable care required that they take steps to prevent the seating from being moved. One possible means of doing so was to place it in a roped off area. Another was to rope the benches together. A third was to fix them to the ground with metal pegs. There may well have been other means of preventing the benches from being moved. These are reasonable and practicable, if not obvious, measures. They are inexpensive and would not have imposed an unrealistic obligation upon the Hunts.
Given the risk that one or more benches might be moved, it was necessary to light the open area sufficiently so that guests would be able to see any obstacles while walking across the open area of the paddock.
Sufficient Lighting?
Although the open area of the paddock had an uneven surface, it was relatively easy to walk across it. It was an extensive area so that care would have to be taken to ensure that it was sufficiently lighted so that any obstacles placed in the paddock could be seen by those walking across it. Although the Hunts had taken steps to provide some lighting, the evidence indicates that it was not entirely adequate to illuminate obstacles on the ground. There was no evidence to suggest that the whole area was so well illuminated that the ground and things standing on it could be readily seen. The fire and other forms of lighting provided a measure of illumination but shadows would also be created. While the bench might have been obvious in daylight, it was a danger at night unless the open area was well illuminated.
There was a conflict as to the extent to which the open area of the paddock was illuminated. Ms Collins said that the area of the paddock over which she was walking towards the bonfire was quite dark. There was a glow from the bonfire, she said, but she could only see the silhouettes of people. Her evidence was corroborated by two witnesses she called, Messrs Lymn and Chapman. Both described the area where Ms Collins fell as very dark. As already noted, Mr Chapman said that the glare from the spotlight on the rainwater tank made it difficult to see. Neither was cross-examined on that evidence. Mr Lymn said that, as one looked to the bonfire, only silhouettes were visible of people standing around the bonfire. He said that, at the time Ms Collins fell, the bonfire was surrounded by people. It is, therefore, reasonable to conclude that as a person walked towards the bonfire, the fire would provide little illumination of any of the area over which that person was walking.
Witnesses called by the defendants gave a different account as to the extent of the lighting. Mr Hunt said that the spotlight mounted on the rainwater tank adequately lighted the open paddock. Ms Williams saw Ms Collins fall. She said that the lighting was “perfectly adequate”. She said that she did not have difficultly seeing where she was walking. Ms Attiwill did not describe the extent of the lighting but said that, when walking across the paddock, she had no difficulty seeing where she was walking. The evidence of these two witnesses amounts to little more than saying “I did not fall, therefore, there was adequate lighting.” Ms Fuller saw Ms Collins fall. She did not remember what lighting existed but said that there was reasonable visibility. Ms Gilmore said that the lighting enabled her to see people as far away as ten metres and that she could see the ground.
The trial judge did not resolve this conflict in the evidence. He said that he believed that all witnesses were trying to tell the truth and any differences in their evidence were due to the fleeting nature of the incident which had occurred five years before the trial. After finding that the two spotlights had been switched on before Ms Collins began to walk across the paddock towards the bonfire, he made the following finding as to the state of illumination:
On all of the evidence I find that the state of illumination in the area where the fall took place was adequate. By its very nature the light was not perfect, it was not an outside football stadium but there was a great deal of light in the area which I will refer to when discussing the discharge of the duty of care and I find that it was certainly not pitch black.
When considering whether the defendants had discharged their duty of care he said:
The illumination provided for by the defendants was in my view more than adequate to discharge their duty.
I point to the fact that there were two search lights in the area of where the incident took place. One was facing east and one was facing southeast. The incident took place a mere 10 metres from the source of those lights. In the vicinity of those lights were coloured party lights also merely 10 metres from where the incident took place. To the east of where the plaintiff fell there were lit bamboo flares giving some illumination and in close proximity there were two drums with fire in them giving a limited amount of illumination. Twenty metres to the south there was a roaring bonfire which provided illumination and finally there were lights in full blaze within the woolshed itself giving further illumination through various windows. It is hard to imagine that the defendants could have done anymore.
The description of the spotlights as “two search lights” was a gross overstatement of the evidence. In addition, the judges’ reliance on the other forms of lighting is misplaced. I have already described what little illumination they provided to the area where Ms Collins fell. These errors and omissions justify the court in making its own findings of fact.
As to the state of lighting it is a matter for remark that neither Mr Lymn nor Mr Chapman were cross-examined as to their evidence that the place where Ms Collins fell was dark. The finding by the trial judge that the lighting was adequate does not mean that their evidence was wrong. As the trial judge found, “by its very nature, the light was not perfect”. The judge has concentrated on the overall state of the lighting. That was but one aspect of the issue. The important issue in this case was the state of the lighting for a person walking across the paddock towards the bonfire. As Ms Collins said, when looking towards the fire she could only see silhouettes. Mr Lymn and Mr Chapman gave evidence to the same effect. That evidence accords with common experience. In a setting such as this outdoor setting where the only lighting is a spotlight, a person walking towards a large fire would only be able to detect silhouettes until arriving closer to those near the fire. In addition, the ground will not be fully lighted especially as some guests were surrounding the bonfire and others will be standing in groups and casting shadows. In those circumstances it would be relatively easy not to see a low bench on the ground. It is an important question and is a question the trial judge failed to address. The open area of the paddock was a relatively large area. It would have been reasonable and practical to have provided one, if not two, additional spotlights pointing in different directions to increase illumination. They are quite inexpensive which only serves to underline the reasonableness of determining that extra illumination should have been provided. The Hunts were negligent in failing to provide additional lighting.
Conclusion
The Hunts created a potential danger in introducing the benches to the open area of the paddock. They ought to have foreseen the risk that the benches might have been moved and become a hazard at night. It was reasonable and practical to take steps to prevent the benches from being moved. They failed to take those steps. They are therefore guilty of negligence. Another reasonable means of reducing the danger was to provide more than one spotlight to illuminate what was a relatively large area. That would not have been at all difficult. The Hunts were negligent in failing to provide sufficient lighting. They were also negligent in that respect. The trial judge, therefore, erred in finding that they had not acted negligently. The judge erred in dismissing the claim by Ms Collins.
For these reasons, I would allow the appeal. I would set aside the judgment and in lieu thereof give judgment for Ms Collins in the sum of $96,000.
ANDERSON J
Introduction
Petri Collins was injured when she fell over a wooden bench seat at a private party held on a rural property near Mount Gambier.
Ms Collins was an invited guest of Mr and Mrs Hunt for the purpose of celebrating Mr Hunt’s 50^th birthday on 21 October 2000. The party was at night. When walking from one area to another, Ms Collins walked into a wooden bench seat, fell over, and injured herself. The incident was witnessed by others at the party.
The issues on appeal
There were two central issues contained in the notice of appeal, although there were other grounds.
The first was whether there was sufficient evidence on which the trial Judge could find that two spotlights were on at the time of the fall, and if his Honour was wrong, and if the two spotlights were switched off at the time of the fall, was there adequate lighting in any event.
The second question arising on the findings of fact was whether the Hunts were in breach of a duty of care they owed as occupiers of the premises.
Background
The party was attended by approximately 120 people and held in and around the shearing shed of the Hunt’s property about 15 kilometres outside of Mount Gambier.
As part of the birthday celebrations there was a fireworks display. Ms Collins did not actually walk down to watch the fireworks but stayed with some others in the shearing shed. Later, after the fireworks were finished, she proceeded to walk towards a bonfire when she walked into the wooden bench, tripped and fell over.
There is not much evidence to describe the bench. It appears from Ms Collins’ evidence that it was low and probably about 18 inches above the ground. It could seat three people at a squeeze. She said it was a hefty lump of wood on legs.
The position in which Ms Collins fell was marked by her on a plan which became an exhibit in the trial. This plan indicates that the accident occurred in fairly close proximity to the shearing shed. It seems that someone had moved the bench from its earlier position where it, along with various other seating, had been placed around the bonfire. She had walked only about five metres from a point near the shearing shed when she ran into the bench. Prior to walking that distance she had been talking to Mr and Mrs Lymn.
There were four spotlights operating that evening. There is no dispute that two remained on continuously throughout the night, and that two were switched off for the fireworks display.
One of the spotlights which remained on was situated some distance from the point of the fall but would have cast some general light in that direction. The other which remained on was under the verandah near the place where Ms Collins fell. It was directed upwards so as to cast a general lighting effect under the verandah. This resulted in an overspill of lighting outside the verandah.
Of the two spotlights in question, one was placed on top of a tank in such a position that, when switched on, it cast light in the area of the fall. The other was mounted on the verandah and would also have cast light in the general area of the fall. Clearly the lighting would have been better if all four spotlights were on.
In addition to the four spotlights, there was other lighting in the area where Ms Collins fell. She said that she had noticed burners described as “bamboo flares” located around the general area. These flares cast a general light in the area. She had also noticed coloured party lights in the same general area of the entrance to the shearing shed which was, as I have indicated, close to where she fell. There were also fires within two 44-gallon drums which burnt throughout the evening and cast some light, and there was some light coming from inside the woolshed. Again these lights assisted in the overall illumination of the area. It was Ms Collins’ belief that there were no spotlights on at the time she fell, but she could not say whether there were spotlights on earlier in the evening. She said it was dark at the time she fell.
When she was cross-examined, Ms Collins said that just before she fell she thought that she heard someone calling her name. She said she was scanning the area to see where the call came from. She was asked whether she was looking to see who might have called her name, and answered “To a degree”. She also said that at that time she was holding a drink in her hand.
Earlier in her evidence she said that just before she fell she was humming a song when she heard music coming from the shed. Ms Collins said that she had a few drinks earlier but was not particularly affected by liquor because she had done a lot of dancing. In cross-examination she said she was singing a tune, had a bounce in her step, and was striding out a bit. She said she was on a high because she had just returned from a great holiday.
The judgment under appeal
The Judge made findings in relation to the various times at which certain events occurred. Some of these findings were quite precise. His Honour found that the Ms Collins fell at around 11 pm. He also found that the two spotlights in question were turned back on, after the fireworks display, at the latest at about 10.30 pm. It was probably not necessary to make such precise findings as to specific times.
The trial Judge found that there was an adequate state of illumination at the point where Ms Collins injured herself. In addition to the finding that the two spotlights were illuminated at the time of the incident, his Honour also made other findings relating to the lighting of the area in question. He found that there was additional illumination, although his Honour did not make any specific findings in relation to whether that additional illumination was adequate in itself. That additional illumination included light spilling out from the shearing shed, from the flares, from the coloured party lights, from each of the spotlights, from a large bonfire and from fires within drums for the purpose of providing warmth.
Although the trial Judge did not analyse the matter in this precise way, it is apparent that his Honour has used a chronology based on the evidence of various witnesses including the Hunts. Mr Hunt gave evidence as to his recollection of when certain events occurred, including the formalities in the woolshed and then the fireworks display. He said he turned the spotlights off for the fireworks display, and when returning to switch them back on again after the fireworks display, he was delayed chatting and thinks they were off for about 20 to 30 minutes.
The appellant’s case
Ms Collins’ case is that she did not see the bench because the area was poorly lit, and that she did not expect the bench to be in the position where it was. She argues that the Hunts were in breach of their duty of care as occupiers of the premises in failing to provide adequate lighting to enable her to see the bench, or to warn her of the fact that the bench may have been moved from its original position.
Counsel for the appellant, Mr Stathopoulos, argued that the trial Judge was wrong in finding that the spotlights were switched on at the time of the fall. It was submitted that this finding was against the weight of the evidence.
There was evidence from Ms Collins and the witness Mr Lymn, that the area in which Ms Collins fell was dark at the time of her fall. However, there was also a large body of evidence that the lighting at that time was adequate.
As indicated earlier, his Honour made a specific finding that the spotlights were turned back on before the incident took place. In my view, there is evidence to support that finding. It is not possible to say that a finding has been made which has no evidentiary basis. It is my view that there is a strong basis in the evidence of Mr Hunt, and from the evidence of the other witnesses which I will deal with shortly to support such a finding.
Mr Stathopoulos argued that the trial Judge also erred in that he made no findings in the alternative, namely, if the spotlights were not switched on at the time of the fall. There was evidence about the other lighting and its effect, but the trial Judge made a rolled-up finding regarding the adequacy of the lighting generally including the spotlights and the other sources of light.
I will deal with the evidence as to lighting and then come back and consider whether it was necessary to make a finding in the alternative.
The evidence regarding illumination
The evidence of Ms Collins is supported by the evidence of Mr Lymn. He agrees that the area in which Ms Collins fell was dark. Another witness, Mr Chapman, who gave evidence for Ms Collins, actually told the court that he was affected by the glare of lights at some stages during the evening. He was, however, unable to relate that to the time of the fall. His evidence did not assist Ms Collins.
Gwendoline Williams said she heard Ms Collins singing, looked in her direction, and then saw her fall. She estimated that she was approximately eight metres away from where Ms Collins fell. From that distance she said that she could identify what Ms Collins was wearing. When asked what Ms Collins was wearing Ms Williams' answer was "she was wearing a dark top and trousers which I thought were yellow but it turns out they were more white, so I presume the yellow was a reflection from the lights or from the fire because the impression to me was it was black and lemon". She also stated that Ms Collins was carrying a glass of drink. She said the state of lighting was “perfectly adequate”. She said the area was generally illuminated and that she could see the bench seat from where she was standing, namely, eight metres away. Ms Williams said that she did not have any difficulty in seeing where she was walking.
Deborah Fuller was about 10 or 11 metres from where Ms Collins fell and describes the fall. She could see that the person who fell was blonde, and she also described her clothing. Ms Fuller had seen the bench seat earlier in the same position where it was in at the time of the fall. She said that the bonfire was putting out a lot of light and there were also coloured lights. She described a row of coloured party lights, and also mentioned light from the shed spilling outside. She described the visibility as “reasonable”.
Joylene Attiwill also observed the fall. She said that she had no difficulty seeing where she was walking at any time during the evening. She specifically said that she had no difficulty in seeing steps which led into the entrance of the shearing shed which was not very far away from where the incident occurred.
Lorna Gilmore did not observe the fall but gave evidence that she had no difficulty seeing people approximately 10 metres away. She was able to recognise people in the light available. She disagreed that the bench seat was hard to see. She could not recall any changes in the illumination of the area during the night. She had no difficulty in walking around and seeing where she was going, and confirmed the general illumination coming from the area around the shearing shed.
The lack of an alternative finding

Having found that the two spotlights in question were on at the time of the fall, his Honour found the lighting to be adequate. It is argued that that finding may not have been the same if his Honour had found that the spotlights were off. However, it is my view that there is a clear inference from the whole of the evidence that the lighting was adequate.
No one who gave evidence, including Ms Collins, really seems to have noticed any difference in the overall state of lighting during the night. That leads to the likely inference that when the two spotlights were turned off, the state of lighting over all in the area where the fall took place was probably not greatly affected.
Breach of duty of care
The decision in this case is essentially a matter of fact. It was accepted by the Hunts that they owed a duty of care to those attending the party. The main question is what was the scope of that duty of care and whether they breached their duty in light of the provisions of s 17C of the Wrongs Act 1936 (SA). (Later replaced by s 20 of the Civil Liability Act 1936).
There is no doubt that it was foreseeable that someone at an outdoor party at night might fall over. The real question is whether proper precautions were taken, and whether more should have been done by the Hunts to prevent an incident such as this and therefore, whether the Hunts discharged the duty of care that they owed as occupiers of the premises?
In my view, it is obvious that seating had to be provided, and as a result it was inevitable that the seating would be moved around as the evening progressed. That is the nature of things at an occasion such as this.
The trial Judge made a finding, which was not challenged, that the bench had been shifted by an unknown person at some stage during the evening and without the knowledge of the Hunts.
It is hard to envisage what more the Hunts could have done short of patrolling the area continuously and moving seating back to its original position.
Mr Stathopoulos suggested a requirement to issue warnings. In my view, it was not reasonable to expect the Hunts to warn invited guests that people may move the seats throughout the night, and that such seats may at times be difficult to see.
From my review of the evidence, I have concluded that the learned Judge was correct in deciding that the lighting provided was sufficient to discharge the Hunt’s duty and to obviate the risk which the seating presented.
In the circumstances of this case, I do not consider that it was either reasonable or practicable for the Hunts to patrol the area, move furniture, or warn guests of the fact that seats may be moved as suggested by Mr Stathopoulos.
Applying the criteria in the Wrongs Act set out in s 17C(2)(a)-(h) inclusive, it seems to me that having regard to the nature of the event in question, the occupier cannot be criticised for taking no positive action.
The High Court used a similar approach in Neindorf v Junkovic (2005) 80 ALJR 341. Regarding the question of what is the appropriate standard of care to be exercised, Hayne J stated at [91] that:
In deciding that question, s 17C(2) requires a court to take into account the matters that are identified in the eight paragraphs of that subsection, recognising, of course, that the last of those (“any other matter that the court thinks relevant”) is open-ended. Account must be taken of each of the matters that is identified. But in doing so it is important to recall that s 17C(3) makes plain that there are cases in which doing nothing to eliminate, reduce or warn against a danger is consistent with exercising reasonable care. In particular, demonstrating that an occupier “was aware, or ought to have been aware of” both “the danger” that led to an entrant being injured and “the entry of persons onto the premises” does not require the conclusion that the occupier should have taken some step to eliminate, reduce or warn against that danger. Rather, it is necessary to take account of all of the matters specified in s 17C(2), including “the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger” (emphasis added).
And further at [93]:
This inquiry about what would have been reasonable and practicable is not to be undertaken in hindsight. Nor is it to be confined to what could have been done to eliminate, reduce or warn against the danger. Asking what could have been done will reveal what was practicable. It is necessary to ask also: would it have been reasonable for the occupier to take those measures?
It is my view that it was not reasonable to expect the occupiers to take any of the measures suggested by Mr Stathopoulos.
Conclusion
The Hunts took adequate precautions to ensure that the area generally was sufficiently lit to a standard that one would expect at such a function. That standard enabled people to see where they were going and move freely around the shearing shed and the area outside it around the bonfire. The evidence of the witnesses, which I have set out earlier, indicates that the bench in question could be seen in the light available for distances greater than the distance Ms Collins walked before she suffered her injury.
I think there is considerable merit in the suggestion made by Mr Doherty, for the Hunts, that Ms Collins was momentarily distracted when she looked up to see who was calling her name, and that as a result she lost concentration and did not continue to look where she was walking. In my view, there is nothing that Mr and Mrs Hunt did or failed to do which renders them liable.
In my view, the evidence overall supports the Judge’s finding that the lighting for the type of function and the surrounding circumstances was adequate, even if the spotlights were off at the time of the fall.
Addendum to reasons
I have now had the opportunity of reading in draft the reasons of Debelle J. His Honour refers to a passage in the judgment appealed from where the judge uses the words search lights. Those words are used right at the conclusion of His Honour's reasons whereas earlier in his judgment, he correctly refers to the lights as spotlights on many occasions. I regard the reference to search lights as a slip of the pen and not an error by His Honour.
In relation to the benches placed near the bonfire, Debelle J finds that it was reasonably foreseeable that guests would move the benches and therefore a guest might stumble over one. In my view it was not practical or reasonable for guests to expect that the occupiers would be responsible for ensuring that no one moved the benches. In my view the exercise of reasonable care by the occupiers does not extend that far.
I consider that guests, generally, when invited to a party at a rural property at night, would take care to ensure that the ground was clear of obstacles of whatever kind when they walked around. For example it would not be reasonable to expect the occupier to ensure that no one left a handbag or empty bottles or glasses in such an area on the ground where guests would be moving around. It would be placing the standard of care required by the occupier at too high a level.
I would therefore dismiss the appeal.