Gondoline Pty Ltd v Hansford - [2002] WASCA 214

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: GONDOLINE PTY LTD -v- HANSFORD [2002] WASCA 214

CORAM: MURRAY J
WHEELER J
MILLER J

HEARD: 13 JUNE 2002

DELIVERED : 14 AUGUST 2002

FILE NO/S: FUL 115 of 2001

BETWEEN: GONDOLINE PTY LTD
Appellant (Defendant)
AND
JANICE ROSE HANSFORD
Respondent (Plaintiff)

Catchwords:

Negligence - Occupier's liability - Protruding paving stone on pathway - Whether breach of duty of care on the part of occupier - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant (Defendant) : Ms B A Mangan
Respondent (Plaintiff) : Mr B L Nugawela

Solicitors:

Appellant (Defendant) : Phillips Fox
Respondent (Plaintiff) : Friedman Lurie Singh

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

Abalos v Australian Postal Commission (1990) 171 CLR 167
Australian Capital Territory v Badcock [2000] 169 ALR 585
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 180 ALR 145
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 75 ALJR 992
Earthline Constructions; Gray v Motor Accident Commission (1998) 73 ALJR 45
Littler v Liverpool Corporation (1968) 2 All ER 343
McLachlan v Purchas & Ors, unreported; FCt SCt of WA; Library No 980749; 21 December 1998
Roman Catholic Archbishop of Perth v Hinchliffe, unreported; FCt SCt of WA; Library No 980520; 14 September 1998
Stannus v Graham (1994) Aust Torts Rep 81‑293
State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 73 ALJR 306
State Rail Authority of NSW v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306
Warren v Coombes (1979) 142 CLR 531
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Australian Safeway Stores v Zaluzna (1987) 162 CLR 479
Grant v Australian Knitting Mills Ltd [1936] AC 85
Griffiths v Kerkemeyer (1977) 15 ALR 387
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Hodges v Frost (1984) 53 ALR 373
Maiward v Doyle [1983] WAR 210
Newman v Nugent (1992) 12 WAR 119
Romeo v Conservation Commissioner (NT) 192 CLR 431

MURRAY J: I have read in draft the reasons for judgment to be published by Miller J. I am in general agreement with them but wish to add some observations of my own.
As Miller J has pointed out, the first two grounds of appeal challenge the finding by Viol DCJ as to the cause of the accident suffered by the respondent. As Viol J noted, the respondent pleaded that while she was walking down a path "her foot struck a protruding paver on the path causing her to fall to the ground and sustain injuries." No further fact is pleaded about the alleged protruding paver, but in the particulars of negligence there is a reference to the failure to ensure "that grass tufts emerging between pavers would not displace them and cause them to protrude in a way that might cause a pedestrian to trip". In short, the pleading appears to refer to a protruding paver, perhaps pushed up by grass growing underneath the path, as evidenced by tufts of grass emerging between the pavers. There is a reference to the gradient of the path being such that "a person who tripped would find difficulty in righting themselves." But having regard to the findings made by Viol J, it would seem that the gradient has no other causal relationship to the occurrence of the accident and the receipt of the respondent's injuries.
Viol J declined to find "that grass tufts caused pavers to protrude" but his Honour did find that the respondent fell, not because she slipped or lost her footing, but because her foot "hit something solid as she walked down the path". His Honour does not say directly that that was a protruding paver but he does say that he accepted the evidence of Mr Richardson and Mrs Campbell who "found a paver protruding from the path in the area where the plaintiff fell – their inspection was in the proximate area of the fall and immediate." I am not sure that I entirely understand that but I think what is meant is that his Honour was satisfied that the respondent tripped on a protruding paver. The question posed by these grounds of appeal is whether the evidence supported that conclusion.
Certainly one starts to consider that question from the point that the trial Judge reviewed the evidence given by the various witnesses and he made credibility findings. His Honour accepted the respondent as an honest and reliable witness but, apart from the fact that her foot hit something solid, she was unable to say why she fell.
His Honour accepted the evidence of the respondent's companion, Mr Richardson. When the respondent fell, she finally came to rest on the ground, quite severely injured, some 10 or 12 feet beyond the point where she first appeared to trip. He said that after doing his best to make the respondent comfortable and after a nurse who was there took over that task, he and their companion, Mrs Campbell, went back to the spot where he calculated the respondent had tripped. He said:
"I could see one paver had sunk and as a result the ledge in front was approximate half an inch or more above the remaining level of the whole of the path."
When cross‑examined, Mr Richardson agreed with counsel that when he went back to the area where the respondent had tripped he "found one paver that was half an inch above the others." That of course was not his evidence‑in‑chief. He said that he consulted a Mr Dryka, an architect, and took him back to the appellant's premises to make a report on the path. The accident happened on 27 August 1996. The date of this inspection was 10 November 1996, about two and a half months after the incident. Mr Richardson agreed that a photograph, exhibit H to Mr Dryka's report, showed approximately the spot where the respondent tripped. The photograph is quite severely over‑exposed and shows nothing of the surface of the path.
Mrs Campbell said that after the respondent fell, she asked her how it happened. When told that she had tripped, she looked back and there was an obviously raised paver protruding above the general surface of the path by "like, I don't know, half an inch, an inch high or something. It was just – yes. It was jutted up, you could see it … ." In cross‑examination she said she could not say quite how high the protrusion was. She did not walk back to inspect the paver.
Viol J thought that Mrs Campbell was apparently honest and appeared to have a reasonable memory of the incident. His Honour did not think it necessary to explore the differences in the evidence of these two witnesses as to whether there was a protruding paver or a ledge created by a sunken paver, and as to how high the ledge was. Whichever it was, it would seem that both these witnesses thought the defect in the path was readily visible. Viol J does not seem to have noticed the difference between these two witnesses as to the later inspection of the paver, but perhaps that might be regarded as a relatively peripheral matter.
The architect, Mr Dryka, was called. It appears that his report was received in evidence, as were the photographs he took. He gave no evidence that he was shown a protruding paver by Mr Richardson. He was questioned, not only about his photograph, exhibit H, but also about a photograph, exhibit C, which he agreed showed the area where he was told the respondent fell. None of the pavers shown in that photograph appear to be at any different level from any others, although an associated photograph, exhibit D to the report, does show some minor variations of level at the edges of the path where there were grass tufts appearing between the pavers, the differences being measured by Mr Dryka at between 5 and 10 mm and therefore rather less than half an inch. There was no evidence that this was where the respondent fell.
I need not review the evidence of the appellant's witness, Ms Waldron, the former employee. It is clear that her evidence was not accepted by Viol J; nor did he accept the evidence of the principal of the appellant, Mr Perkins. Indeed, his Honour said he "had reason to doubt his honesty." However, there is one aspect of this witness's evidence to which reference should be made. His evidence was that the path had been regularly inspected and properly maintained. He said that he did not change the pathway in any way after the accident. No contrary suggestion was put to him in cross‑examination. Whilst Mr Perkins' evidence may not have been accepted by Viol J, it remained the case that there was no evidence that any change had been made to the path after the accident.
I have mentioned the appearance of the path in the photograph, exhibit C to Mr Dryka's report, which was taken by him on 10 November 1996. There was other such evidence given by a Mr Shiell, a loss adjustor who was instructed by the appellant's insurers to inspect the path and who did so on 16 October 1996, seven weeks after the date of the accident and before the visit by Messrs Richardson and Dryka. He took photographs which became exhibits 4A‑H. On some of them he drew a stick figure to indicate the position where the respondent came to rest after she fell, according to information given to him by Ms Waldron.
Exhibit 4C gives a good view in the foreground of the photograph of that part of the path where the respondent's witnesses said she tripped. There are agapanthus plants to the side of the path. Mr Shiell gave evidence that over the whole area of the path made up of the concrete pavers depicted in his photographs:
" … the concrete blocks were closely butted together and were evenly laid. The path itself wound through the garden bed and was not straight but there – I could not observe any bricks that were protruding or sticking up in any way.
Did you see any sign that the path had been changed or re‑laid or disturbed in any way in recent times?‑‑‑None whatsoever, no."
The photograph, exhibit 4C, certainly bears out the accuracy of the witness's evidence. He was not cross‑examined.
Viol J accepted that Shiell was "an honest witness" but found him to be "of little assistance to the defendant's case." His Honour commented that Shiell "saw the area some two months after the accident and, thus, was unable to give any evidence as to the condition of the scene at the time of the accident itself." To my mind, with respect to his Honour, that is only a partial evaluation of the significance of this witness, because the fact remains that the evidence of both this witness and Dryka (contrary to the evidence of Richardson) was accepted by Viol J and established that in October and November 1996, around two months after the accident, the state of the path at the point where the respondent tripped revealed no evidence of any imperfection of the kinds variously described by Mr Richardson and Mrs Campbell.
The unchallenged evidence was that the path showed no evidence of recent change and there was absolutely no evidence to show that it had been repaired after the accident, and yet if all these witnesses were giving accurate and reliable evidence, that must have been the case, contrary to the evidence of Richardson who in cross‑examination was asked:
"You visited the farm with Mr Dryka, did you?‑‑‑Yes.
Did you find the paver that was sticking up when you visited with Mr Dryka?‑‑‑Yes. I indicated that to Mr Dryka, yes."
Having regard to the decisions as to credibility of witnesses made by Viol J, it may readily be accepted that his Honour was entitled to accept that the respondent had established a case that she tripped because one of her feet "hit something solid". The question was: did the respondent's case establish that the "something solid" was the pleaded "protruding paver", or was it her other boot, some minor imperfection in the path or something else entirely?
In my opinion, Viol J could not find that it was a protruding paver without even noticing and making a finding about the inconsistent evidence given by Richardson and Mrs Campbell; nor, if Richardson's evidence that in November 1996 he could see what was there in August was true could his Honour simply ignore as being of "little assistance" the unchallenged evidence of Shiell and the evidence given by the respondent's own witness, Dryka, together with the photographs taken in October and November by both these witnesses.
This Court has the obligation to deal with this appeal by way of rehearing. It must examine the findings or lack of findings of the trial Judge and the evidence bearing upon the issues of fact which are fundamental to establishing negligence on the part of the appellant or (and it comes to the same thing) breach by it of its statutory duty under s 5 of the Occupiers' Liability Act 1985 (WA). This is not a case of the kind where the findings in support of the conclusion of liability are so inextricably bound up with the assessment of the credibility of witnesses that this Court is precluded from reviewing the findings of fact: Abalos v Australian Postal Commission (1990) 171 CLR 167. There are numerous circumstances in which this Court will be obliged to make a careful evaluation of the evidence in support of findings of a trial Judge for the purpose of determining whether they are indeed sustainable, although conclusions as to the credibility of particular witnesses have been expressed by the trial Judge and find a place in the reasoning employed at first instance. Examples are given by Kirby J in State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 at 331 – 2 [93].
It follows that in my opinion the appeal would be allowed on grounds 1 and 2. The finding that the cause of the respondent's fall and injuries was a protruding paver cannot be sustained. If the matter proceeds no further, however, that would necessitate setting aside the judgment of Viol J and ordering a new trial before a different Judge so that appropriately grounded findings of fact may be made: Earthline Constructions; Gray v Motor Accident Commission (1998) 73 ALJR 45. It would not be for this Court to substitute its own views about the credibility of witnesses or, having done so, to decide what is the proper inference to be drawn: cfWarren v Coombes (1979) 142 CLR 531, 551. The primary facts are too much in dispute.
I turn then to grounds 3 – 6 and the issue of breach of duty, subject to the caveat that this issue has to be addressed upon the basis that the cause of the accident was a protruding paver or a depressed paver creating a difference in level from the surrounding pavers of perhaps half an inch and that, as it was put by Viol J, although inspections of the path were carried out on behalf of the appellant, they did not detect the imperfection which was visible. Viol J considered that, because that was the case, it was demonstrated that the:
" … inspections were not adequate – had they been as thorough as required in the circumstances, he (Mr Perkins) would have seen the protruding paver and taken steps to ensure that the paver was level and not protruding above the general surface of the path."
In a sense the reasoning is self‑fulfilling. The appellant was under a duty of care to those who came upon its premises and used its path. The duty was to take reasonable care that the path presented no danger for ordinary use. There was an imperfection in the surface of the path. It was readily discoverable upon inspection. It was not discovered and therefore the inspection was negligently carried out or, putting it another way, there was a negligent omission to properly inspect the path, discover the imperfection and correct it.
In my opinion, that reasoning, which is apparent in the judgment of Viol J, is fallacious because it categorises as negligence the failure to discover the imperfection without considering whether the imperfection is of a kind which might ordinarily be expected to be accommodated by the ordinary user of the path without the duty of the appellant to exercise reasonable care requiring its remedy.
I note the authorities to which Miller J has referred, which seem to me to bear upon this issue, but to illustrate the point it is I think sufficient to refer to the decision of the High Court in Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 180 ALR 145. The case of Mrs Ghantous is that particularly in point. She tripped and fell while walking on a concrete footpath because erosion had caused the earthen surface immediately adjacent to the concrete to subside to a level about 50 mm below the level of the concrete surface. It was held that she could not succeed. Although it was held that the Council was under a duty to keep the footpath reasonably safe for ordinary use it was not a duty to ensure the safety of users of the path in all circumstances. The duty of inspection and remedy arises particularly in the case of latent dangers, not reasonably discoverable or obvious to the user: see per Gaudron, McHugh and Gummow JJ at 189 [150]‑[152] and per Kirby J at 212 [243].
As to the question of breach of duty, at 212 – 3 [246] Kirby J said of Mrs Ghantous that:
"… something more than the fact that she fell would be necessary to convert the powers which the respondent Council

enjoyed into a duty to safeguard a pedestrian such as Mrs Ghantous, rendering the Council liable to her because she momentarily took a false step. That 'something' might be evidence of poor original design, a history of previous accidents or complaints or deterioration that was judged manifestly dangerous."

As to the same issue, Callinan J at 240 [355] said that in the circumstances of this case, the footpath was not established to be unsafe despite the difference in height between the concreted section and the earthen part of it. The situation was not such that to leave it unrectified was negligent. His Honour said:
"There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this."
This, in my opinion, is a case of that kind. If there was a relatively insignificant difference in the level of a particular paver in the path from those surrounding it, it was of a kind which was visible and which the ordinary user of the path, obliged to anticipate that there might be such an imperfection in it, would reasonably be expected to cope with. The failure to inspect with such thoroughness as to detect and rectify this imperfection did not, in my opinion, constitute a breach of the appellant's duty of care.
On these grounds I would therefore allow this appeal and in the result I would set aside the judgment of the District Court and order that the respondent's claim against the appellant be dismissed.
I have dealt with the matters raised in the respondent's notice of contention, which were concerned with grass undermining the path, in the course of these reasons. In view of the conclusion to which I have come, there is no need for me to deal with ground 7 of the appeal and with the cross‑appeal, which respectively complain of errors by the trial Judge in respect of the award of damages for past gratuitous services and the failure to make any award in respect of future services of that kind.
WHEELER J: I have had the advantage of reading in draft the reasons for decision of Miller J. I agree with them and have nothing to add.

MILLER J: This is an appeal from a judgment of Viol DCJ in the District Court at Perth, delivered on 25 June 2001, when his Honour found the respondent to have suffered injury on 27 August 1996 in consequence of the negligence of the appellant. Damages of $84,696.64 were awarded to the respondent for the injuries and other loss and damage she had sustained. The action arose out of a fall sustained by the respondent on a pathway leading from a shop to a carpark at the Lavender & Berry Farm in Pemberton in the south‑west of Western Australia on 27 August 1996.

The appellant commenced trading as Lavender & Berry Farm in October 1991. The farm was described by Robert Ian Perkins, a director of the appellant, as a tourist centre with holiday villages, a shop and tearooms. Within the centre was a large, artificial lake. On one side of the lake were a number of holiday cottages and on the other, a shop, tea rooms and gardens. There was a carpark at which visitors to the farm could park their vehicles and from that carpark a pathway led through the garden area to the shop. The pathway was about 100 metres in length and had been constructed in May 1991. It consisted of concrete block pavers which were described by Perkins as having been specially selected because they would not be porous and would not gather moss. An example of the concrete paver was tendered in evidence and it was described as a brickpaver with a smooth surface.
Photographs of the pathway show it to be a well‑constructed and apparently smooth walkway bordered by attractive lavender bushes and other shrubbery. The pathway was on a gradient variously described by expert witnesses as one in five and a range of one in five to one in ten. In any event, it seems obvious from the photographs, and it was so found by the learned trial Judge, that the gradient was one of reasonable proportions, particularly in the area where the respondent sustained her fall.
The evidence revealed that the respondent was 60 years of age on 27 August 1996 when she visited the Lavender & Berry Farm. She had been travelling around Australia with her de facto husband, Ronald Richardson, arriving in Western Australia in July‑August 1996. On 27 August the respondent and Mr Richardson had intended to go trout fishing. Before doing so they filled in time by going to the Lavender & Berry Farm. They parked their vehicle in the carpark and walked to the shop area where they bought a number of items, including lavender balls and honey.
The respondent said that on her way back from the shop to her motor vehicle she tripped when her "right foot hit something solid". She did not know what her foot had hit, but she recalled walking on pavers ("a paved path") on a downhill slope towards the carpark. She said that parts of the pathway "weren't good, the edges". When the respondent caught her foot, she stumbled and "landed" further down the pathway. She had tried to keep her balance, but had been unable to do so. She had things in her hands. She was wearing hiking boots which were said to be in good condition. Her injuries included a comminuted fracture of the right patella, fractured rib and injury to the left shoulder, bruises and lacerations.
The respondent's fall was witnessed by Mr Richardson. He, a lady named Diane Campbell, and the respondent had been walking together as they left the shop. He said that after leaving the shop the respondent, Ms Campbell and himself walked down an inclined pathway which seemed to get steeper as they traversed it. He said the respondent tripped, fell and staggered forward and landed on her right knee, eventually rolling onto her left shoulder. He estimated the distance over which she stumbled as 10 to 12 feet.
After assistance had been given to the respondent Mr Richardson walked back up the pathway with Ms Campbell to see why the respondent had fallen. He said he saw the "precise spot where she fell or stumbled" and there he could see that "one paver had sunk and as a result the ledge in front was approximately half an inch or more above the remaining level of the whole of the path". Ms Campbell said that she saw a paver or "a risen bit" which jutted up and was "half an inch, an inch high". When pressed in cross‑examination at trial, she was uncertain of the extent of the protrusion, saying "what's half an inch?".
Mr Perkins testified that the Lavender & Berry Farm was a high profile business which attracted 30,000 to 35,000 people per annum. He described those who came as being from all ages, "families, babies to elderly people" and said that nobody had ever complained about the condition of the pathway. He gave evidence as to how he maintained it in the following terms:
"In relation to maintenance, can you tell the court what steps you take to maintain the path, if any? --- Well, I guess just not to the path but probably, as the photos illustrate, what we've tried to do as a family here is to create a quality, small holiday centre and to enable us today to be competitive, we must maintain that in a pretty high condition. It's fair to say of our cottages, as an illustration, our occupancy would be about 92 per cent per annum and I doubt if anyone within that area would have that occupancy and so I illustrate that point because unless you're having - you're maintaining a standard, you would not enjoy that occupancy.
What about the pathway? --- The pathway - regularly each morning I go down to check there's no rubbish down in the carpark area, walk down there because if ever somebody's dropped a bit of rubbish - if I'm not there, my wife would do it or my son would do it.
And there's grass surrounding the pathway and other shrubbery. Do you take any steps in relation to that? --- Well, at intervals we use a chemical called Round Up to do it. Currently we're not using that chemical. For the last 9 months we are now putting lime there because we don't want to use a chemical. We're just putting garden lime which we find quite successful.
What's the purpose of the garden lime? --- It's rather than use the chemical called Round Up and this is for about the last 9 months. It kills any tufts of grass or whatever. It keeps it in control round the edges. So we try and keep that to the best possible condition that we possibly can which, with the volume of people that come up there, we'd have to because in that period of operation we'd have, obviously, many people tripping if we didn't."
Mr Perkins was present at the Farm on the day of the respondent's fall. When told of it, he went to the scene where he found the respondent lying on the pathway. He said he asked her if she was okay and she responded with the words "I'm fine … - it's just my fault." Perkins was unaware of any serious injury to the respondent and he returned to the shop area.
The respondent denied in evidence that she had said these words. She contended that Perkins had not even been at the scene. The learned trial Judge made no specific finding about whether Perkins was or was not there, nor did he make any finding as to the words allegedly spoken by the respondent. By inference, he rejected Perkins' evidence, as he said it was uncorroborated, and he found Perkins to have been a poor witness.
A number of witnesses, expert and otherwise, were also called to give evidence about the path. Denis Shiell, a loss adjustor, visited the scene some two months after the accident. He saw no protruding pavers and thought the slope to be even with no sign of any bricks having been relaid. He was described by the learned trial Judge as an honest witness "but of little assistance to the defendant's case" because he saw the area only two months after the accident and was unable to give any evidence as to the condition of the scene at the time of the accident itself.
Paul Hoffman, an architect, gave evidence in relation to the gradient of the pathway, but as I have pointed out, the learned trial Judge found the gradient to have been of reasonable proportions where the accident occurred. Mieczyslaw Dryka, also an architect, spoke of the gradient and the learned trial Judge accepted from the evidence of both Dryka and Hoffman and photographs, that in the area near the agapanthus (close to where the respondent fell) there was an increase in gradient relative to the other parts of the path. Nothing, however, turns on this fact.
The learned trial Judge accepted the evidence of the witnesses called by the respondent in relation to the circumstances in which the accident occurred. Specifically, he found that the respondent's foot had hit something solid as she walked down the path. He found her to have been an experienced walker, wearing walking boots and there to have been no evidence that she slipped or in any way lost her footing. He accepted the evidence of Richardson and Campbell that there was a paver protruding from the pathway in the area where the respondent fell. This paver he considered to have been one which would have been visible upon proper inspection. He did not accept that Perkins inspected the pathway as regularly as he suggested and pointed out that there was evidence of grass growing between some pavers, suggesting that Perkins either failed to notice grass growing between the pavers or if he did so, was tardy in the removal of that grass. His Honour held, however, that it was not possible on the evidence to conclude that grass tufts had caused pavers to protrude. On the other hand, his Honour held that the fact that grass was growing between the pavers "suggests that the path was not being maintained as well and as regularly as Mr Perkins suggested".
In the end the learned trial Judge concluded that on all the evidence Perkins did not inspect the path with enough care and had he done so, the protruding paver would have been seen. He held the pathway on the day of the accident to have been unsafe and his conclusion was in these terms:
"The path, on the day of the accident was, in my view, unsafe - its condition was such that there was a foreseeable risk of injury to users of the path especially in a situation where the path to the carpark was sloping and involved an increased slope around the area where the paver protruded."
His Honour then concluded that the inspections made by Perkins were inadequate and had he been thorough, he would have seen the protruding paver, which would have led to steps to ensure that the pathway was level. He said:
"The defendant, in my view, did not take sufficient steps to avoid risk of injury to users of the path. The inspections and spraying, I have found, were not adequate. The defendant thus failed to take sufficient steps to avoid the risk of injury to the users of the path, and in particular, the plaintiff."
The appellant appeals to this Court against the learned trial Judge's conclusion on the issue of liability and also in relation to the award of damages for loss of gratuitous services. The respondent cross‑appeals on the adequacy of the award for loss of gratuitous services.
The grounds of appeal in relation to the learned trial Judge's finding on the issue of liability are essentially two: Firstly, that the learned trial Judge erred in finding that the accident was caused by a protruding paver; and secondly, that even if the accident was caused by a protruding paver, the appellant did not breach the duty of care which it owed to the respondent. In support of this second contention, it was argued that if there was any risk to the respondent, it was an everyday risk which she as a member of the public should have avoided by taking care for her own safety.
The first ground of appeal seeks to contest the learned trial Judge's conclusions in relation to the protrusion of the paver on the pathway. An attempt was made to argue that the learned trial Judge's conclusions in this regard were against the evidence. Particular emphasis was placed upon the fact that the alleged protruding paver was never identified at trial and when the witness Dryka photographed the premises in November 1996, there was no evidence of any protruding paver. It was also argued that the evidence of Campbell as to identification of the protruding paver was uncertain and did not corroborate the evidence of Richardson that he had shown her the paver upon which the respondent had tripped. Reliance was also placed on the evidence of Helena Waldron, a former employee of the appellant, who testified that she checked the path immediately after the incident to see if there was anything the respondent could have tripped upon and she could not find any protruding paver or anything else which could have caused the fall. Her evidence was that she checked the pathway to see "if there was anything that she could have possibly tripped over and couldn't see a thing".
However, the learned trial Judge considered the evidence of all of the witnesses, lay and expert. He accepted the testimony of Richardson and Campbell and rejected that of Waldron and Perkins. This, it seems to me, effectively determines this ground of appeal. The findings made by the learned trial Judge were specifically based upon the credibility of the witnesses Richardson and Campbell, both of whom were found to have been credible witnesses. Richardson was described as a "straightforward practical person who … was apparently reliable and honest" and Campbell "apparently an honest person and (with) … a reasonable memory of the incident". Waldron, on the other hand, was described as honest on the face of things, but a witness with a degree of loyalty to her previous employer, which suggested that she was not wholly reliable. Perkins was described as a witness whose evidence could not be relied upon and his Honour went so far as to say that he doubted his honesty.
The importance that an appeal court will place upon findings of credibility by the trial Judge has been stressed in many cases. In State Rail Authority of NSW v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306, Kirby J, at [90], described the advantages in fact finding which a trial Judge enjoys. His Honour pointed out that the Judge hears the evidence in its entirety, whereas the appellate court is typically taken to selected passages, chosen by parties so as to advance their respective arguments. He went on to say:
"The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence whilst the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge."
At [91] ‑ [92] his Honour added:
"[91]… because trials remain public procedures for the resolution of disputes, it is inescapable that, in some cases at least, credibility assessments will be required where there is no documentary, electronic or other incontrovertible evidence to resolve the conflict presented for decision. In such cases it will remain the fact that, try as it might, the appellate court cannot procure from the printed record exactly the same materials on which to base the judicial decision as the trial judge had.
[92]This conclusion may, as I think, be true of a relatively limited class of case: basically those where the decision depends upon resolving a clash of critical oral testimony, oath against oath. But in such cases, because the appellate court cannot, in presently available records, recapture all of the information properly used to assist the trial judge's decision, the old strictures about that judge's advantage remain as relevant today as they were when first written more than a century ago. In such cases, the appellate court's rehearing must be conducted within a constraint which is set by the somewhat more restricted data available to it. This limitation is not confined to Anglo‑Australian law. It is recognised in other countries of the common law and doubtless beyond."
Applying these principles to the present case, it seems to me that the appellant cannot succeed on the ground of appeal challenging the learned trial Judge's conclusion that a raised paver caused the respondent's fall. It was a conclusion based entirely upon the acceptance of the evidence of the witnesses Richardson and Campbell, which acceptance was in turn based upon their credibility as witnesses.
The secondary basis of the appeal contests the learned trial Judge's finding that the pathway on the day of the accident was unsafe and its condition was such that there was a foreseeable risk of injury to users of it. The grounds of appeal in support of this contention need not be particularised. On any view of it, the appellant, as occupier of the premises, owed a duty of care to the respondent to ensure that the pathway leading from the carpark at the Farm to the shops and other facilities was as safe for use by patrons as reasonable care could make it. The circumstances in which such a duty of care arises at common law was set out by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 where his Honour (at 44) said:
"According to Lord Atkin's statement of principle in Donoghue v Stevenson, as it has been refined in later decisions, prima facie a duty of care arises on the part of a defendant to a plaintiff when there exists between them a sufficient relationship of proximity, such that a reasonable man in the defendant's position would foresee that carelessness on his part may be likely to cause damage to the plaintiff (Home Office v Dorset Yacht Co Ltd; Anns v Merton London Borough Council)."
In a much quoted passage (at 47 ‑ 48) his Honour added:
"… foreseeability of the risk of injury and the likelihood of that risk occurring are two different things. I am of course referring to foreseeability in the context of breach of duty, the concept of foreseeability in connexion with the existence of the duty of care involving a more generalized enquiry.
A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far‑fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
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 of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls 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."
In the present case the respondent's claim had been pleaded not only in negligence, but by way of breach of statutory duty under s 5 of the Occupier's Liability Act 1995 (WA). The trial Judge held, however, (rightly) that the particulars of breach of statutory duty were identical to the negligence alleged at common law.
It is unnecessary to set out the particulars of negligence alleged in the respondent's statement of claim, but relevantly they contended that there had been a failure on the part of the appellant to ensure that there were no protruding pavers over which a pedestrian might trip; a failure to ensure that grass tufts between pavers would not displace them and cause them to protrude; a failure to take any or any adequate precaution, by way of examination inspection or otherwise to ensure that the path was maintained in a reasonably safe condition; and failure to ensure that the pathway was free of protruding pavers when the gradient was such that a person who tripped would find difficulty in righting themselves.

In essence, the question on appeal is whether the appellant could be said to have breached its duty of care to the respondent in circumstances where there was a paver protruding between one‑half and one inch on the sloped pathway down which she walked upon leaving the shop at the Farm. Put another way, the question is whether a reasonable man in the position of Perkins would have foreseen that the pathway, with some unevenness in the paving stones, created a risk of injury to the respondent as she traversed it between the shops on the Farm and the carpark below. In this respect counsel for the appellant relies upon the decision in Stannus v Graham (1994) Aust Torts Rep 81‑293. There, in the context of a complaint that there was a loose step on a concrete path leading from a garage area to a home unit, it was held that the occupier was not negligent in failing to observe and remedy the defect in the step. It was also argued that there should have been a handrail installed next to the steps and the failure to install that handrail constituted a breach of duty of care on the part of the occupier. Handley JA, at 61,566, made these observations:
"Persons using steps may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety. There is a step between kerb and gutter in city streets and extensive steps outside public buildings in Sydney such as the Joint Courts Building, the Public Library, the Art Gallery, Parliament House and the Opera House. A handrail is not to be found within reach of every person using these steps. In my opinion the defendant was not negligent in failing to install a handrail at these steps."
The proposition that persons using steps (and one might say footpaths) encounter everyday risks which they must avoid by taking care for their own safety is one recently endorsed by the High Court in Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 75 ALJR 992. There, Gleeson CJ at [6] ‑ [7] said in relation to a case in which a pedestrian had suffered injury when she tripped and fell on an uneven concrete footpath:
"[6] … when general principles of negligence, unqualified by any rule of immunity, were applied, the courts insisted that an injured plaintiff had to show that the road or footpath was dangerous. That did not mean merely that it could possibly be an occasion of harm. The fact that there was unevenness of a kind which could result in a person stumbling or falling would not suffice. Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land.
[7] In Littler v Liverpool Corporation, Cumming‑Bruce J said:
'Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted. A highway is not to be criticised by the standards of a bowling green.' "
Gaudron, McHugh & Gummow JJ said, at [163]:
"[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 own 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 the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other 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 (as in Webb v South Australia), or the surrounding area (as in Buckle, where the hole was concealed by grass). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a 'trap' or, as Jordan CJ put it, 'of a kind calling for some protection or warning'. In Romeo, Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger. Kirby J pointed out in the same case that even an occupier of premises 'is generally entitled to assume that most entrants will take reasonable care for their own safety'. Each case will, of course, turn on its own facts."
Counsel for the respondent relied upon Australian Capital Territory v Badcock [2000] 169 ALR 585, a case in which a pedestrian fell while walking across a busy carpark in the centre of Canberra. It was an area frequently used by pedestrians who walked between residential areas and the commercial centre of the city. The plaintiff, whilst on her way to post a letter, tripped on a paving block which protruded some 10 ‑ 20 mm above the general surface of the area. There were other blocks which similarly protruded. They had been lifted because of uncontrolled root growth of a tree several metres away. Complaints had been made to the Territory about the unsatisfactory state of the walkway but nothing effective or of substance had been done about it. Einfeld J at [24] ‑ [26] said:
"[24]  … A person walking on what is obviously a pedestrian area, designed, installed or permitted to be used for that purpose, need not be permanently on the lookout for hazards on a step by step basis (see Webb v South Australia (1982) 43 ALR 465 at 467, lines 5‑11, per Mason, Brennan and Deane JJ), or behave in the same way as would be expected on approaching the edge of a natural coastal cliff. A variation in the height of the pavers in an area such as existed here created an edge which is more hazardous than undulation or uneven surfaces in a nature reserve.
[25]  As regards the 'magnitude of the risk', it is axiomatic that a person falling on concrete pavers will most likely sustain injury, particularly if of advancing years. As for the 'probability of the occurrence', it is clear from the evidence that once the paved surface was uneven, it created a 90 degree edge which was demonstrably more likely to cause sudden tripping, falling and injury than a flat if uneven surface. Likewise, in my view, Franklins Selfserve Pty Ltd v Bozinovska [1998] NSWSC 456, a decision of the New South Wales Court of Appeal which applied Romeo, is also distinguishable on the facts. The case involved a shopper in a supermarket who, to bring down a product on an upper shelf beyond her normal reach, stood on a wire or steel mesh basket intended to hold merchandise for sale and not as a stepping platform.
[26]  The Territory's argument that it was not necessary to warn about the raised pavers 'as the very obviousness of them supplied its own warning' strikes me as having a sizeable element of contradictory ambivalence. On the one hand, the Territory said that the rise in the pavers was so slight, and so expensive to fix, that it could not reasonably be required to remove it. On the other hand, the rise was said to be so obvious that no duty of care to fix, fence or warn about it attached. If these contentions can stand together, I reject them both. As explained by the master in his reasons for judgment (at [17]‑[19]), there was no evidence of any great 'expense, difficulty and inconvenience of alleviating action' to rectify the problem which led to Mrs Badcock's injury."
It seems to me, however, that there is a distinction to be drawn between the facts of Australian Capital Territory v Badcock and the present case. What might be required in a pedestrian area in a central city location, particularly where complaints have been made to the relevant authority about the state of a pathway, may be very different from what is required in a rural location such as that where the Farm in this case was located. I have already pointed out that the respondent was wearing hiking boots. She was in a country area and she knew it. A well‑laid pathway was in place to enable her to get from the carpark where she had parked her vehicle to the shops conducted on the Farm.
Although the learned trial Judge found there to be a paver raised between one‑half and one inch from the surrounding pavers, I am of the view that there was no foreseeable risk of harm to persons using the pathway taking reasonable care for their own safety. The paver was not, in my view, a hazard or trap. The respondent could have been expected to have exercised sufficient care in looking where she was going on the pathway to have observed any uneven paving stone. I am of the opinion that what Cumming‑Bruce J said in Littler v Liverpool Corporation (1968) 2 All ER 343 at 345, is entirely applicable to this case. That is, uneven surfaces or differences in level between paving stones of up to an inch might cause a pedestrian temporarily off‑balance to trip and stumble, but such is a characteristic that must be accepted on a pathway. A pathway is "not to be criticised by the standards of a bowling green".
Here the pathway was, to all intents and purposes, well laid out and although on a gradient, relatively even. Natural subsidences in the land and rainfall would be likely to cause some unevenness in the paving stones. A raised stone of between half an inch and an inch would not, in my view, be a hazard that a pedestrian would not expect to encounter, particularly in a country location such as that at the Farm. Although the pathway was laid out to enable people to move from the carpark to the shops at the Farm, it was nevertheless in a rural location.
In those circumstances, the situation was, in my view, to be differentiated from a city mall or pedestrian walkway such as that which existed in Canberra in Australian Capital Territory v Badcock. In any event, there are important distinctions to be drawn between the present case and that of Australian Capital Territory v Badcock. In the latter, there were a number of pavers which had been raised above the level of others and the problem had been brought to the attention of the authority. They had done nothing about it, but on the findings of the Full Federal Court there was no good reason why the problem should not have been eradicated. Apart from the fact that it was a central city location, the knowledge by the relevant authority of the problem and its failure to fix it put the case into a different category.
I accept what Einfeld J said in Australian Capital Territory v Badcock about pedestrians not being required to be permanently on the lookout for hazards on a step‑by‑step basis, but that was not required of the respondent in this case. All that was required of her was that she appreciate that a pathway at Lavender & Berry Farm could not be expected to be "of the standards of a bowling green". Rather, it was to be expected that there may well be a half inch variation in the height of the occasional paving stones.
I would also refer to McLachlan v Purchas & Ors, unreported; FCt SCt of WA; Library No 980749; 21 December 1998 where (at 9), I said in relation to a case in which a person alighting from a vehicle had slipped on grass:
"… The learned trial Judge was, in my view, correct in equating any risk to persons parking on wet and possibly slippery grass with an every day risk which members of the public avoid by taking care for their own safety, and adopting those words from the passage of Handley SA in Stannus v Graham, to which I have referred. It is the case that daily, in the metropolitan area of Perth, people park cars on grass surfaces. They may, from time to time, be wet surfaces and slippery. In the every day activities of life many people will step out of their motor vehicles onto a wet and sometimes slippery grass surface. That does not, however, constitute either a danger within the meaning of the Occupiers' Liability Act, nor a hazard within the meaning of the Occupational Safety & Health Act, nor, in my view, is it a foreseeable risk of injury against which a prudent employer should guard in relation to his employees. It is nothing more nor less than an every day experience. If it be categorised as risk at all, it is the very risk which citizens in the course of their daily activities are required themselves to guard against."
These observations are equally applicable to pedestrians walking on paved pathways. Reference might also be made to Roman Catholic Archbishop of Perth v Hinchliffe, unreported; FCt SCt of WA; Library No 980520; 14 September 1998, a case in which a schoolteacher traversing a walkway at a college was called upon to negotiate a step between a concrete veranda floor and a bitumen play area. There was a drop of between 20 mm at one extremity of the step and 60 mm at the other. It was described by Malcolm CJ as "by any measure … a very slight step". The learned Chief Justice cited with approval the passage of Handley JA to which I have referred in Stannus v Graham (supra) and concluded that the difference in levels created by the step in the walkway could not be described as a hazard. His Honour concluded (at 15) that even in a crowd of students, a person not familiar with the walkway would anticipate that there would be a step from the veranda of the building to the concrete floor onto the bitumen playground. This is but another example of the general proposition that citizens in the course of their daily activities are required to guard against ordinary and accepted risks created by different levels on pathways, raised paving stones and the like.
In my view, there was no basis upon which the learned trial Judge could, in this case, have concluded that the pathway on which the respondent fell was unsafe. The protruding paver was but an ordinary and everyday risk that a pedestrian on a pathway ought to have envisaged. It was not a hazard, but an everyday risk in relation to which care for her own safety was required.
In these circumstances it is unnecessary to consider the conclusion of the learned trial Judge that the appellant took insufficient steps to avoid a risk of injury to users of the path by inspections and spraying. It is also unnecessary to deal with the grounds of appeal and the cross‑appeal contesting the award made by the learned trial Judge in relation to gratuitous services.
I would allow the appeal and set aside the learned trial Judge's conclusions on the issue of liability and damages.