Collins v Hunt and Hunt - [2006] SADC 10

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
COLLINS v HUNT AND HUNT
Judgment of His Honour Judge David
13 February 2006
NEGLIGENCE
Plaintiff guest at a "woolshed" party held on defendants property - plaintiff suffered injury falling over bench in paddock - bench moved from position around a bonfire by unknown third party - state of lighting of area discussed - defendants owed duty of care to guests - moving of bench by third party no bar to action - however no breach of duty as lighting in area adequate.
Wrongs Act (SA) 1936 s17C, referred to.
Junkovic v Neindorf (2004) 89 SASR 572; Neindorf v Junkovic [2005] HCA 74; Modbury Triangle Shopping Pty Limited v Anzil and Another (2000) 205 CLR 254, considered.

COLLINS v HUNT AND HUNT
[2006] SADC 10

Both defendants, who are husband and wife owned and occupied a property known as Glenhuntly which is about 15 kilometres outside of Mount Gambier.
On the 21^st October 2000 the 2^nd defendant, John Hunt, celebrated his 50^th birthday by holding a party in the woolshed on that property. The party started in the evening and included a live band with dancing, a large bonfire which was lit in an open paddock area about 25 metres south of the woolshed and during the course of the evening there was a fireworks display in that same paddock. Guests were issued formal written invitations and it was envisaged that some would bring camping equipment and spend the evening after the festivities camped on the property. The plaintiff was one of those guests.
During the course of the evening formalities, which took place in the woolshed, included speeches and reminiscences about the life of the 2^nd defendant. After they were concluded a fireworks display took place in the south‑eastern corner of the paddock. During the course of the evening before and after the fireworks display and the formal ceremonies there was a large bonfire. People were seated around it on seats and in particular on benches which were obtained from the local high school. The bonfire was about 25 metres south of the southern alignment of the woolshed and people were moving from the woolshed to the bonfire and back. After the formal part of the evening had concluded and after the fireworks had finished the plaintiff walked towards the bonfire from the woolshed and tripped over one of the benches that had originally been around the bonfire. That bench had been moved by someone from the area of the bonfire closer to the woolshed. She said she did not see the bench and did not expect it to be there and as a result of the fall suffered injuries. She now sues both defendants in negligence because of those injuries. Damages have been agreed at $96,000 and the only remaining question for me to decide is one of liability.
I will describe in detail the set up of the premises and the amount of lighting that was provided when I discuss the facts. However I make it clear that there appears to be very little dispute between the accounts of both sides as to what happened. I can confidently say that I am of the view that witnesses were trying to tell the truth and any differences in the evidence on salient matters is due to the fleeting nature of an incident that took place some 5 years ago.
Put briefly the plaintiff’s case is that the defendants owed a duty of care to her to ensure that the area which she, as one of the guests, was walking through during the course of the evening was safe and that the lighting of that area was adequate bearing in mind that seats and chairs might have been shifted around. The defendants argue that they had done everything in their power to illuminate the premises adequately and consequently they have discharged their duty of care. Before turning to the facts in more detail I wish to discuss the law.
The Law
Recent authority has held that the law relating to the liability of an occupier of premises for physical injury caused to an entrant on those premises by the state of the premises is now governed by and in accordance with the principles of the law of negligence (Doyle CJ, Junkovic v Neindorf (2004) 89 SASR 572). In determining the standard of care in such a case a Court has to take into account those matters set out in Section 17C of the Wrongs Act (SA) 1936. I set out that Section:-
Occupier’s duty of care
17C. (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 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 exposed 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 at 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.
In Neindorf v Junkovic [2005] HCA 75, Gleeson CJ as part of the majority held that the old common law test which would fix the plaintiff into one of a number of fixed categories by reference to which an appropriate standard of care was determined now no longer applies and the current test is that there is a generalised standard of care “described as what a reasonable person would, in the circumstances, do by way of response to foreseeable risks”.
On the present facts I therefore have to decide –
(a)     Did the defendants as occupier of the premises owe the plaintiff a duty of        care?
(b)     What was the standard of care and in determining that I have to bear in      mind those matters set out in Section 17C of the Wrongs Act?
(c)     Have the defendants breached that duty?
Before answering those questions I turn to the facts in more detail.
The Plaintiff’s Case
The plaintiff herself gave evidence and called two witnesses.
At the time she was 47 years of age and had known the defendants since 1976. She had received an invitation to John Hunt’s 50^th birthday (Exhibit D2) and had come from Adelaide especially for the occasion. She arrived in the afternoon and helped with the preparations in the woolshed which involved preparing food and other matters. The woolshed is south of the main house and was cleaned out and set up for the purposes of entertainment and dancing. She saw a bonfire being prepared in the paddock which ran south from the woolshed and around the bonfire which was going to be eventually lit there were about a half a dozen benches. It is clear that those benches were borrowed from the local high school and were plain benches about 18” high.
The plaintiff’s intention was that after everything had finished she was going to camp on the site in a tent she had brought along with her. Many of the other guests were going to do the same. She gave evidence that late in the evening she decided to walk from the woolshed to the bonfire where there were other people and she gave this following description (transcript page 21 line 17 to 25):-
AWalking towards the bonfire late in the evening, when I decided I’ll just go down to the bonfire and then it’s time for me to put my tent up. So I walked down towards the bonfire, and I was humming tune in my head so I was you know, at a jolly pace going I suppose and all of a sudden, my leg hit something at shin level. It was kind of jammed at an angle under the seat so I couldn’t scramble and rescue myself and I landed forward on my shoulder.
She gave evidence that what she fell over was one of the benches which was originally around the bonfire. She said that that bench had obviously been moved from the area of the bonfire closer to the woolshed and she marked the position on Exhibit P1. The position as can be seen on that Exhibit as marked is between the south‑eastern corner of the woolshed and the eastern fence. She said that she had not seen the bench in that position before and indeed the only position she had seen the benches was around the bonfire.
Her description of the party itself and the movement of people was generally that there was a live band playing in the woolshed. There were about 100 people at the party although she is unsure of that. People were mingling around inside and outside both at the bonfire and in the woolshed and in the area in the paddock in between. The plaintiff gave evidence that she spent most of her time in the woolshed and then certain formalities took place such as speeches and the showing of slides to celebrate Mr Hunt’s 50^th birthday. After the formalities were finished the band started up again and some people went outside but she stayed inside. She said that she then left the woolshed at approximately 11.00 pm and that is when the accident occurred. However before she left there was an announcement that a fireworks display was going to take place and many people left the woolshed for that purpose. It is undisputed that those fireworks took place in the south‑eastern corner of the paddock further south‑east than the bonfire itself. When the plaintiff went out at 11.00 pm the fireworks had finished.
She gave evidence that she exited the woolshed from the area on the plan (Exhibit P1) marked “entrance” and spoke to two friends namely David Lymn and his wife. She then gave the following evidence (transcript page 28 line 23 to 29):-
AI saw the Lims(sic), had a little chat to them and said ‘I’m going to the bonfire’ and I went to turn away, I could still hear some music coming out of the shed, which was a song ‘Under the Boardwalk’ and as I walked off I was humming that in my head, I remember that distinctly and then all of a sudden I just felt this – well my leg was stuck and I fell over.
The plaintiff gave evidence that when she was talking to the Lymns she was near a drum and about 5 to 10 metres from the bench over which she tripped. She marked that position on Exhibit P1. She said in relation to the state of the lighting in the area where she tripped that she could see a glow from the bonfire but where her feet were was quite black. The surface upon which she was walking in the area where she tripped was grass and as far as evenness was concerned it was not too bad.
The plaintiff was asked to describe the artificial lighting in the vicinity of where she fell. She said she noticed some burners which were lit which can be described as bamboo flares. She also saw coloured lights which were in the area of the entrance which was a short distance from where she fell. She said that to her knowledge there were no spotlights on and she could not say whether spotlights were on earlier in the evening. In fact when she tripped over she could not say whether the spotlights were on or off. All she knew was that it was dark. She was adamant however that where she had tripped it was black. She gave evidence that she was holding a glass in her right hand and although she had a few drinks she was not feeling particularly affected and the area where she fell was grass. In attempting to describe the lighting the plaintiff said there were bamboo flares along the eastern fence of the driveway, there were some coloured party lights on the top of the verandah just under the roof near where she and the Lymns were talking but their light did not extend out to where she fell. There was also the glow of the bonfire and other than that she cannot remember much about the state of illumination. I will return to the question of lighting when I discuss the case for the defendants.
The gist of the plaintiff’s evidence was that having spoken to the Lymns she walked towards the bonfire to see some people and fell over a bench which had been moved from the bonfire. She did not see the bench and did not expect it to be there. She says that the area was dark.
David Lymn who was a teacher by occupation arrived at the party at about 8.30 pm. He and his wife were standing about 20 metres away from the bonfire later in the evening when they were approached by the plaintiff. He gave evidence that the condition of the lighting in the area where they met was very very dark. The plaintiff spoke to he and his wife for about 10 minutes and told them she was going down to the bonfire and moved in that direction. Mr Lymn said that he watched her for the whole time walking towards the bonfire and could see her silhouette. He was taken by the intriguing nature of the brightness of the bonfire and the way people were silhouetted. He said suddenly she disappeared. Although it is hard to gauge he thought that she had moved about 10 paces from him before she disappeared. He and his wife then started walking towards her fearing that she had fallen over. That proved to be correct. Mr Lymn gave evidence that the area where she fell was very dark but they eventually found her on the ground. Mr Lymn noticed a stool or a bench and the plaintiff was beyond the bench on the ground. They then attended to her. Mr Lymn said that he could not recall whether there was any artificial light illuminating that area. His evidence, however, was that it was dark.
The plaintiff’s final witness was David George Chapman who was an architect working at Mount Gambier and who also attended the party. Mr Chapman did not see the plaintiff fall but became aware of what happened shortly afterwards. Although he could not talk about the incident itself he gave evidence that on an occasion during the evening when he walked from the woolshed to the bonfire it was difficult to do so because there was a glare from spotlights that came from somewhere in the woolshed. He cannot say whether at the time of the fireworks those spotlights which caused that glare were on or whether sometime during the evening that they had been switched off. His evidence was that when walking towards the bonfire the state of lighting was “difficult”. The difficulty seemed to be not because of the darkness but because of the perception of the light coming either from the bonfire or from the woolshed. As I understand it, it was difficult adjusting to the different types of light. Other than that general evidence Mr Chapman could say nothing about the incident itself. I now turn to the defendants case.
The Defendants’ Case
Both defendants gave evidence and called four other witnesses.
Mr John Hunt gave evidence about the set up of lights for the evening. That evidence was illustrated by markings on Exhibit P1 and was undisputed. I therefore set that out in detail. There were a number of what are called spotlights on the roof in the area of the woolshed. As can be seen there was one facing north towards an area where people parked their cars and walked from the premises to the woolshed. That is not of great significance as far as the present case is concerned. There was another spotlight within the area of the verandah illuminating under the roof. There was another spotlight to the right of that under the verandah near the coloured lights which was facing and illuminating the area in an easterly direction towards the eastern fence. And there was a final spotlight in the area marked “open verandah” which was mounted on top of a rainwater tank and that was shining in a south‑easterly direction. The latter two spotlights were operated by one switch. They are significant in this case. Also along the eastern fence there were lighted bamboo flares which were operating during the evening. Also there were two 44 gallon drums which had fires burning inside and were more for the purposes of warmth rather than illumination but did shed some light. Mr Hunt also gave evidence and there is no dispute that inside the woolshed itself there was a great deal of illumination and some of that spread out into the areas outside and there were coloured lights as indicated in a row along the eastern ceiling of the open verandah. Mr Hunt also gave evidence that the bonfire was about 20 to 25 metres from the end of the open verandah to the south. The fireworks display took place further to the south‑east.
Mr Hunt told the Court that the formalities within the woolshed started at approximately 9.30 pm and took 20 to 30 minutes and when they were concluded he announced that there would be a fireworks display. Having done that he walked down to that area in the south‑eastern corner of the paddock to start the fireworks. He returned to the woolshed and by operating one switch turned off the two spotlights which shone to the south‑east and to the east. The reason he did that was to give more effect to the fireworks display. He then returned and started the fireworks, which lasted for about 15 minutes. He gave evidence that when the fireworks were completed he went back towards the woolshed but was waylaid chatting to people in the area of the bonfire. He then realised that the spotlights that he had turned off for the fireworks were in fact still off and he went back and turned them on. He thinks they were off for about 20 to 30 minutes. He gave evidence that he then stayed inside as the band had started again. He said he did not see the plaintiff fall over and first learnt about it when he saw her being attended to by some people and he assisted. During the time that he returned to turn the spotlights off he described the bonfire as being well lit and acceded to the suggestion that it was roaring.
He gave further evidence that in addition to the benches placed around the bonfire guests may have brought their own seats and chairs. He said that when he was in the area of the bonfire before he turned the spotlights back on he did not have any difficulties seeing what he was doing. When he was walking between the fireworks and the woolshed he did not have any difficulty seeing where he was going. He could not say how the bench over which the plaintiff fell came to be in that place but he was conscious that although there were benches placed around the bonfire on one occasion he walked around a bench that had been moved to another position. He was not however aware of the exact position of the bench over which the plaintiff fell.
In cross-examination he said that he could not be exactly sure when he switched the spotlights back on having switched them off for the fireworks display. So the suggestion was raised that there may be a doubt as to whether when the plaintiff tripped the two spotlights that were switched off had not been switched back on again.
Mrs Debra Hunt was called. She said that the speeches started about 9.30 pm and took about half an hour but she did not notice whether the spotlights were turned on or off. She gave evidence that there was a great deal of light coming through the windows of the woolshed, that you could recognise people in the distance and when walking you could see your feet. She also said that during the time of the evening when the fall obviously took place the bonfire was in a robust stage.

Gwendoline Joyce Williams was also a guest and the salient parts of her evidence were that the woolshed was well lit up and formalities took about half an hour. After the speeches people went to see the fireworks which took about a quarter of an hour and she gave evidence that she saw the plaintiff fall and she marked an area where she thinks this happened. This was further to the west from where the plaintiff says she fell. Ms Williams described the fall and said it was as if she went straight down and straight up again and she had no idea that she was actually hurt. She said the plaintiff was about 8 metres from her when she saw that happen (transcript page 134 line 26 to 35). She said that when she saw the plaintiff after she fell she noticed that she had been carrying a glass of drink in her hand. She described the illumination at that time that she observed the fall as perfectly adequate. She said that there was a bonfire, there were fires in the drums and there were Hawaiian lights along the side and there were coloured lights on the right hand side of the front of the woolshed facing the road. She also said that there were spotlights around the place (transcript page 136 line 11 to 16). She said she had no difficulty seeing where she was walking. She was not aware that any of the spotlights had been turned off. She said the bonfire at the time of the plaintiff’s fall was roaring. She said it was also illuminating the surrounding area. In cross-examination Ms Williams said she thought the fall may have happened before the fireworks display but was not sure.
Joylene Kaye Attiwill was also a guest. She said the speeches took about half an hour and then there were the fireworks. She cannot recall whether the spotlights were turned off during the fireworks which took about 20 minutes. Her evidence was basically that there were lots of people moving around the area outside after the fireworks and before and that she did not have any difficulty seeing where she was walking.
Deborah Jane Fuller was also a guest and gave evidence that she viewed the fireworks from the bonfire and was not aware of anybody turning off the lights. She in fact saw the plaintiff fall. The position that she marked on Exhibit P1 as to where she was when she saw the plaintiff fall was slightly to the north‑west of the bonfire and she marked the position as to where the plaintiff was when she fell as slightly to the south‑west of where the plaintiff says she was when she fell. In my view there was no significance in the difference between those two positions. Both positions are near the verandah. She described the fall (transcript page 159 line 2 to 28). She said she didn’t see the bench when the plaintiff was falling but noticed it after she was being helped up. She said she had seen the bench before the fall because when she went down to the fire on a previous occasion she had actually stepped over it. As far as illumination was concerned at the time of these events she said that the fire was putting out a lot of light and there were coloured lights, there was a bit of light from the woolshed but she cannot remember spotlights. She said the state of the light was “reasonable visibility” (transcript page 161 line 34). She also said that the bonfire was raging.
In cross-examination she said that when the plaintiff fell that was before the fireworks display.
The final defence witness was Lorna Faye Gilmore who said that she arrived late in the evening towards the end of the speeches having gone to another function beforehand. She could not recall whether the spotlights were turned on or off during the fireworks and her evidence was that she never had difficulty seeing where she was walking.
Findings of Fact
It is clear that all witnesses were trying to tell the truth and were honest people trying to recollect events that took place 5 years ago. In considering their evidence I bear in mind that the incident itself was quite quick and was at the end of an evening and therefore recollections of detail are going to be understandably vague and lack precision. However I can confidently make the following findings of fact on the significant matters:-
1.     I find that the plaintiff fell over one of the benches that was originally      placed around the bonfire.
2.     I find the position where the plaintiff fell was as she indicated it on         Exhibit P1.
3.     I find that the plaintiff fell some time after the end of the fireworks display      at around about 11.00 pm.
4.I prefer the evidence of the plaintiff and the defendants that the incident happened after the fireworks to the evidence of the two witnesses Gwendoline Williams and Deborah Fuller who said that the incident took place before the fireworks display. I do not disregard the rest of the evidence of those two witnesses because of that finding but I am of the view that it is a detail about which they were honestly mistaken.
5.I find that the 2^nd defendant turned the spotlights that he had turned off for the fireworks back on before the incident took place. The plaintiff’s description as to when this happened was that it was fairly late in the evening at about 11.00 pm and I find that this was well after the 2^nd defendant, Mr Hunt, came back and turned the spotlights back on after the fireworks display which at the latest would have been before 10.30 pm. I accept his evidence that he in fact turned the spotlights back on.
6.I find that the bench over which the plaintiff fell had been shifted from the area of the bonfire by a person unknown without the knowledge of the defendants.
7.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.
Duty of Care
It is clear and conceded by the defendants that they owed a duty of care to the plaintiff as one of those people who came by invitation to the party.
Standard of Care
In the circumstances of this case the standard of care is that the environment where their guests would be is a safe one. Included in that is that the defendants should foresee that in the area between the bonfire and the house people would move furniture around. I do not accede to the argument that negligence could not be made out because unknown to the defendants a third person shifted the bench. In my view this is entirely different than the High Court Decision in Modbury Triangle Shopping Centre Pty Limited v Anzil and Another (2000) 205 CLR 254. In that case the High Court was dealing with the criminal actions of a third party. In the present case the actions of the third party in shifting the bench were clearly foreseeable.
Discharge of the Duty of Care
I find that on the whole of the evidence, consistent with my findings of fact the defendants discharged their duty of care. I point to the following matters:-
1. The party was advertised to be in a woolshed adjacent to an open paddock at night with fireworks.
2.The danger arising from the premises was a bench placed in an open paddock in an area where people were milling around for the whole of the evening.
3. 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 south‑east. 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.
I find the injuries to the plaintiff were caused by an unfortunate accident which was not the responsibility of the defendants. Accordingly there will be judgment for both defendants.