Gors v Tomlinson - [2020] WASCA 164

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KEVEN GORS by his Plenary Administrator JANET CHRISTINE GORS -v- TOMLINSON [2020] WASCA 164
CORAM:   QUINLAN CJ
MURPHY JA
VAUGHAN JA

HEARD:   17 JUNE 2020
DELIVERED          :   30 SEPTEMBER 2020
FILE NO/S:   CACV 81 of 2019
BETWEEN:   KEVEN GORS by his Plenary Administrator JANET CHRISTINE GORS
Appellant
AND
PHILLIP KEVIN TOMLINSON
First Respondent
JENNIFER SUSAN TOMLINSON
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   SCOTT DCJ
Citation: KEVEN GORS by his Plenary Administrator of JANET CHRISTINE GORS v TOMLINSON [2019] WADC 88
File Number            :   CIV 3277 of 2016

Catchwords:

Appeal - Negligence - Occupiers' liability - Duty to warn - Whether trial judge erred in finding it was unforeseeable that the risk of harm would eventuate - Whether trial judge erred in interpretation of Civil Liability Act 2002 (WA), s 5O - Whether trial judge erred in finding obvious risk - Whether trial judge erred in finding that a warning would not have prevented accident

Legislation:

Civil Liability Act 2002 (WA), s 5B, s 5F, s 5M, s 5N, s 5O
Occupiers' Liability Act 1985 (WA), s 5

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	G M G McIntyre SC & J R Brooksby
First Respondent	:	G R Hancy
Second Respondent	:	G R Hancy

Solicitors:

Appellant	:	Percy Kakulas Gleeson
First Respondent	:	Greenland Legal Pty Ltd
Second Respondent	:	Greenland Legal Pty Ltd

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

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Angel v Hawkesbury City Council [2008] NSWCA 130
Best Bar Pty Ltd v Warn [2019] WASCA 15
C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136
Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Reports 81-874
Child and Adolescent Health Service v Mabior [2019] WASCA 151 [
Collins v Clarence Valley Council [2015] NSWCA 263; (2015) 91 NSWLR 128
Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 235
East Metropolitan Health Service v Ellis [2020] WASCA 147
Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510
Jaber v Rockdale City Council [2008] NSWCA 98; (2008) Aust Torts Reports 81-952
Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308; (2018) 99 NSWLR 98
Keven Gors by his Plenary Administrator of Janet Christine Gors v Tomlinson [2019] WADC 88
Nikolich v Webb [2019] WADC 58
Ragless v District Council of Prospect [1922] SASR 299
Schultz v McCormack [2015] NSWCA 330
Singh v Lynch [2020] NSWCA 152
Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Contents

Introduction

The factual background

Statutory context

The Primary reasons

The grounds of appeal

Ground 1 - Foreseeability of injury

Ground 2 - Factual finding of obvious risk

Ground 3 - Section 5O of the Civil Liability Act

The proper construction of Section 5O

The Heading of Part 1A Division 6 of the Civil Liability Act

Does s 5O remove the duty of care completely?

The New South Wales cases

Conclusion as to Ground 3

Ground 4 - Causation

Ground 5 - The ultimate findings

Conclusion

JUDGMENT OF THE COURT:

Introduction

On 19 August 2014, Keven Gors (the appellant) suffered significant injuries after he fell through a laserlite patio roof (the patio roof) at the property owned and occupied by Phillip and Jennifer Tomlinson (the respondents) in Yathroo, a rural location near Dandaragan in Western Australia (the accident).
The appellant and the respondents were neighbours. On the day of the accident the appellant had attended the respondents' property for the purposes of removing a Solahart hot water system (the unit) from the roof of the respondents' house, so that the appellant could reuse some of the parts of the unit. The appellant was accompanied by his brother, Clifton Gors (Clifton).
Mr Tomlinson was home at the time. Mrs Tomlinson was not. Mr Tomlinson, however, played no role in planning how the appellant and his brother would go about the task of removing the unit.
The appellant sued the respondents for damages on the basis that they were in breach of their duty of care to the appellant, as occupiers of the property, by failing to warn the appellant of the risk of stepping on the patio roof. At trial, the appellant's case was confined to that failure to warn.
Scott DCJ dismissed the appellant's claim.[1]
[1] Keven Gors by his Plenary Administrator of Janet Christine Gors v Tomlinson [2019] WADC 88 (Primary reasons), [8].
The appellant now appeals against the decision of the learned trial judge.

The factual background

The background facts, as found by the learned trial judge, are as follows. Two witnesses gave evidence at trial, Mr Clifton Gors and Mr Tomlinson. The appellant was unable to give evidence at trial as a result of his injury.[2]
[2] See Ts 4, Primary reasons [10].
The appellant and the respondents were neighbours and had known each other for several years prior to the accident.[3]
[3] Primary reasons [48(b)].
The respondents' house had a patio on the north side. The roof of the respondents' house was tiled and the roof of the patio was constructed of laserlite polycarbonate material. The tiled roof and the patio roof were separated by a gutter. The parties agreed that, at all material times, the patio roof was unsafe to walk on.[4]
[4] Primary reasons [9(a)].
Prior to the day of the accident, the appellant had visited the respondents' property on numerous occasions.[5] When the appellant visited, he would normally walk under the patio roof.[6] The learned trial judge found that, on the day of the accident, the appellant could not have been unaware that the patio roof was translucent and that it was constructed of material similar to the material of which the appellant had constructed a canopy roof at his own property in 2005.[7]
[5] Primary reasons [48(b)].
[6] Primary reasons [48(b)].
[7] Primary reasons [48(b) and (c)].
On the day of the accident, the appellant attended the respondents' property with Clifton, for the purpose of removing the unit from the tiled roof.
The appellant and Clifton climbed onto the tiled roof using a ladder. The ladder was placed, by them, against the tiled roof at the end of the verandah.[8] The learned trial judge found that the appellant's (and Clifton's) intention when they climbed onto the tiled roof was to walk directly from the ladder across the tiled roof to the unit, that the appellant would unbolt the unit and that they would walk the unit back across the tiled roof in a direct line to the location of the ladder.[9] It formed no part of their plan to do anything on the patio roof.[10]
[8] Primary reasons [15].
[9] Primary reasons [48(d)].
[10] Primary reasons [48(e)].
Mr Tomlinson played no role in planning how the appellant and his brother would go about the task of removing the unit. There was no discussion between them in relation to that issue.[11]
[11] Primary reasons [48(f)].

While they were on the tiled roof, either the appellant or Clifton asked Mr Tomlinson if he would like the cracked tiles on the roof replaced. Mr Tomlinson agreed and left to get some new tiles.[12]
[12] Primary reasons [48(h)].
After the appellant had unbolted the unit, he and Clifton each lifted one end of it.[13] They carried the unit towards the ladder, but put it down after a short way because it was heavy.[14] The appellant and Clifton discussed moving the unit closer to the gutter.[15] Clifton gave evidence that this was because he and the appellant noticed that the unit was leaking and wanted to drain it into the gutter.[16]
[13] Primary reasons [48(i)].
[14] Primary reasons [48(j)].
[15] Primary reasons [48(k)].
[16] Primary reasons [34].
The appellant and Clifton again picked up the unit and moved it towards the gutter. Whilst doing so, the appellant was walking backwards and checking behind himself as he walked.[17]
[17] Primary reasons [48(l)].
The appellant and Clifton put down the unit a second time. The appellant then, without looking behind himself, took two steps backwards and fell through the patio roof.[18]
[18] Primary reasons [48(l)].
Before turning to the Primary reasons, it is appropriate to set out the statutory context.

Statutory context

The appellant relied upon a duty of care owed by the respondents both as occupiers under the Occupiers Liability Act 1985 (WA) (Occupiers Liability Act) and a general duty of care to which the Civil Liability Act 2002 (WA) (Civil Liability Act) applied. The particulars of breach were said to be co-extensive.[19]
[19] Primary reasons [49].
While the Statement of Claim pleaded a number of allegations of negligence, the appellant's case at trial was confined to whether the respondents owed the appellant a duty to warn of the risk of harm associated with the patio roof.[20] That risk was the risk of the appellant suffering an injury by stepping onto, and falling through, the patio roof.[21]
[20] Primary reasons [50]. See also Primary reasons [62].
[21] Primary reasons [56].
The existence of a duty of care on the part of the respondents to visitors to their property, including the appellant, was not seriously in contest. Rather, what was in issue was the scope of the duty, namely whether it extended to a duty to warn of the risk of harm associated with the patio roof. Issues of the scope of the duty and breach of duty in this context are, of course, closely related.
The Occupiers Liability Act, in ss 5(1) and (4), makes the following provision in relation to the scope of duty of care of an occupier:
(1)Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
…
(4)Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to -
(a)        the gravity and likelihood of the probable injury; and
(b)        the circumstances of the entry onto the premises; and
(c)        the nature of the premises; and
(d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises; and
(e)the age of the person entering the premises; and
(f)the ability of the person entering the premises to appreciate the danger; and
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
Section 5B of the Civil Liability Act provides:
5B.General principles
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
It was not suggested in the present case that the application of the criteria in s 5 of the Occupiers Liability Act would yield any different result to the application of s 5B of the Civil Liability Act. Indeed, the appellant submitted at trial that there was no real difference between the two sets of provisions.[22] There was said, in this case, to be no tension between the respective criteria[23] - meaning this was a case where, accepting that the criteria in ss 5(1) and (4) of the Occupiers Liability Act must be read with s 5B of the Civil Liability Act,[24] there was no relevant inconsistency between the criteria in their application to the facts and circumstances of this case.
[22] Primary reasons [81].
[23] Ts 5 - 6.
[24] Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 235 [85] (Buss JA).
At trial, counsel for the appellant (who was junior counsel for the appellant at the appeal hearing) also accepted that the appellant's case came down to the failure to warn.[25]
[25] Ts 6.
Of particular relevance in the present case, however, are the provisions of the Civil Liability Act dealing with obvious risks. In that regard, s 5F, s 5M, s 5N and s 5O are relevant.
Section 5F provides:
5FTerm used: obvious risk
(1)For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2)Obvious risks include risks that are patent or a matter of common knowledge.
(3)A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4)A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
Sections 5M, 5N and 5O are contained in Part 1A Division 6 of the Civil Liability Act which is headed 'Division 6 - Assumption of Risk'. Those sections provide:
5M.Term used: obvious risk
In this Division -
obvious risk has the meaning given by section 5E.
5N. Injured person presumed to be aware of obvious risk
(1)In determining liability for damages for harm caused by the fault of a person, the person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.
(2)For the purpose of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
5O. No duty to warn of obvious risk
(1)A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.
(2)This section does not apply if -
(a)the plaintiff has requested advice or information about the risk from the defendant; or
(b)the defendant is required by a written law to warn the plaintiff of the risk; or
(c)the defendant is a professional and the risk is a risk of harm to the plaintiff from the provision of a professional service by the defendant.
(3)Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.
An issue of construction arose before the learned trial judge as to whether s 5O applies only to an obvious risk that is voluntarily accepted by the plaintiff (in accordance with the common law defence of voluntary assumption of risk or volenti non fit injuria). That is, the appellant submitted that s 5O has no application in the absence of such a defence.
The respondent submitted, to the contrary, that s 5O was concerned with the scope of the defendant's duty and that, where a risk was 'obvious' within the meaning of the section, no duty to warn of that risk could arise.

The Primary reasons

Having made relevant findings of fact, the learned trial judge commenced his consideration of the issues with s 5O of the Civil Liability Act.
His Honour rejected the appellant's construction of s 5O, holding that, in the event that he was satisfied that the risk to the appellant was an obvious risk having regard to s 5F and s 5N of the Civil Liability Act, pursuant to s 5O the respondents did not then owe a duty of care to warn the appellant and the appellant's claim must fail.[26] In that regard his Honour adopted and followed the construction reached by Quail DCJ in an earlier decision, Nikolich v Webb.[27]
[26] Primary reasons [69].
[27] Nikolich v Webb [2019] WADC 58; see Primary reasons [67]-[68].
His Honour, therefore, went on to consider whether:
(a)the risk of harm was an obvious risk (within the meaning of s 5F); and
(b)the appellant in any event proved that he was not aware of the risk (pursuant to s 5N).[28]
[28] It may be observed, in passing, that it was not strictly necessary for his Honour to take this additional step. As discussed below, s 5N - which is concerned with a plaintiff's subjective knowledge may be relevant to the defence of volenti. Section 5O is, however, wholly concerned with whether the relevant risk is, objectively, obvious to a reasonable person in the plaintiff's position.
The learned trial judge concluded:
[73]In this case I am satisfied that the risk that if the plaintiff walked on or placed his weight on the patio roof it would not bear his weight resulting in him falling through it and sustaining serious injury was a risk that in the circumstances would have been obvious to a reasonable person in the position of the plaintiff in that:
(a)The plaintiff prior to the fall had been a farmer for over 30 years, in addition to which he was a qualified mechanic.
(b)In or about 2005 the plaintiff had personally constructed the canopy roof over the pool at his house the material for which was laserlite.
(c)The canopy roof was not constructed of material which would likely bear the weight of an adult and was intended to let light in over the pool beneath it and was not to be walked on.
(d)Before the incident the plaintiff had been to the defendants' house on numerous occasions in which he entered from the eastern side. The view of the patio roof from the patio showed the roof to be obviously translucent and the plaintiff could not have been unaware that it was constructed of a material the same as or similar to the canopy roof and that it was not a roof which was constructed of material which would likely take the weight of an adult.
(e)Given the view from the position of the ladder (for example photograph 23) it was plain from the type and thickness of the material that the patio roof was not constructed of metallic material and that it was constructed of laserlite or some plastic material that would not likely bear the weight of an adult person.
(f)It was obvious from its appearance that the patio roof was designed to let light in and shade the patio and not to be walked on.
[74] Even if a reasonable person did not know the composition of the patio roof to be laserlite or a similar material a reasonable person would not conclude that it was a surface which was safe to step or walk on.
[75]As a consequence I am satisfied that the risk to the plaintiff of stepping onto the patio roof which was not able to bear his weight or was not known to be able to bear his weight and falling and suffering serious injury would have been obvious to a reasonable person in the position of the plaintiff.
[76]The plaintiff, due to his injuries, was unable to give evidence at this trial. As to the provisions of s 5N of the CLA there was no evidence that the plaintiff was not aware of the risk or aware of the type or kind of risk nor was there any evidence from which an inference could properly be drawn by me that the plaintiff was not aware of the risk or the type or kind of the risk.
[77]In the premises by [sic] pursuant to s 5O of the CLA the defendants did not owe a duty of care to the plaintiff to warn of the risk.

This conclusion was, on the learned trial judge's construction of s 5O of the Civil Liability Act, sufficient to dispose of the appellant's claim.
His Honour, nevertheless, went on to consider whether, apart from s 5O of the Civil Liability Act, the respondent's duty of care extended to an obligation to warn the appellant of the relevant risk.
Having considered the various matters in s 5 of the Occupiers Liability Act and s 5B of the Civil Liability Act, the learned trial judge concluded:[29]
[29] Primary reasons [89].
In my view the risk of harm to the plaintiff was not a foreseeable risk of which the defendants were required to warn the plaintiff. A reasonable person in the position of the defendants would not have warned the plaintiff of the risk of injury to him. My reasons are as follows:
(a)Working on a roof is dangerous and always presents some risk of injury.
(b)Deciding what is reasonable includes the reasonableness of an expectation that any invitee will exercise reasonable care for his own safety, the possibility that the invitee will sometimes be inattentive or even negligent and the obviousness of the relevant risk of harm: Thompson v Woolworths.
(c)It was common ground that the task to be performed by the plaintiff with assistance from Clifton was to unbolt the unit and then carry it directly to the ladder which was resting against the barge board on the eastern side of the veranda. There was no evidence as to how the plaintiff and Clifton then intended to lower the unit to the ground. However given its size and weight I consider it was unlikely that they would have carried it down the ladder. It was more likely that they would use the defendants' front end loader.
(d)The evidence of Clifton was that neither he nor the plaintiff ever intended to step onto the patio roof. The decision to change the direction in which the unit was to be carried was made by the plaintiff and Clifton when the first defendant was not present.
(e)The first defendant was never asked nor did the plaintiff or Clifton intend to ask him for his input about removing the unit from the roof. Both of them were experienced farmers and the plaintiff was also a qualified mechanic.
(f)The method adopted by the plaintiff and Clifton to carry the unit to the ladder was entirely a matter for them and a matter in which the defendants were not expected to nor did they play a part.
(g)The first defendant had left the premises to source new tiles to replace the cracked tiles in the proximity of the unit, before the plaintiff and Clifton had taken any steps to pick up the unit.
(h)It was not, from the defendants' perspective, reasonably foreseeable that the plaintiff would step onto the patio roof at any time during the removal of the unit.
(i)For the reasons to which I have previously referred, the risk to the plaintiff standing on the patio roof which would not bear his weight and falling through it was an obvious risk.
Finally, the learned trial judge dealt with the issue of causation, namely whether a warning as to the risks associated with the patio roof would have prevented the harm suffered by the appellant in any event.
His Honour concluded:[30]
In my view this was a tragic accident. I cannot be satisfied that it was more probable than not that but for the failure on the part of the first defendant to give a warning to the plaintiff that the patio roof would not bear his weight and that if he stepped onto it he could fall and be seriously injured, he would not have stepped back without looking and fallen to the patio below. On the evidence the plaintiff fell through the patio roof because he stepped backwards without looking where he was going. There is no evidence nor any inference that I could properly draw that the plaintiff would not have done so if he had been given a warning not to step onto the patio roof. As a consequence I cannot be satisfied that the failure to warn the plaintiff was a necessary condition of the occurrence of the harm.
[30] Primary reasons [95].
This finding provided another basis upon which the appellant's claim had to be dismissed.
We turn now to the grounds of appeal.

The grounds of appeal

There are five grounds of appeal. They are:
1. (a)The Learned Judge erred in fact and in law in determining that the risk of injury to the Plaintiff was not foreseeable notwithstanding:
i.His Honour's contemporaneous finding that it was 'obvious' that if the Appellant were to stand on a part of the roof, he would fall through it and sustain significant injury;
ii.The First Respondent did not know how the works were to be carried out;
iii.        The work which the Appellant and/or his brother were carrying out on the roof was varied and expanded to the knowledge of the First Respondent with the result that as a matter of fact the variation in the work brought at least one of the Appellant/or his brother adjacent to the laserlite extension;
iv.        The Appellant's brother was working on/in the gutter which divided the main roof from the laserlite extension;
v.The tank of the Hot Water System to the Respondent's knowledge started leaking into the gutter which rendered foreseeable the prospect that the Appellant might move the system nearer the gutter so as to allow liquid to drain and render the system lighter and easier to carry;
vi.That the Appellant's brother gave evidence that the laserlite extension looked like 'Colorbond' (which would have been trafficable);
vii.       That the First Respondent initially stated that he had warned the Appellant's brother not to step on the laserlite extension;
viii.      The First Respondent knew that the laserlite extension was not trafficable and that if either of the parties working on the roof were to step on the laserlite extension it would give way under his/their weight;
ix.That by reason of the system leaking, the Appellant and his brother specifically agreed to move the Hot Water System adjacent to the gutter and the Appellant would not have stepped back had he known that that part of the roof on the other side of the gutter would not have borne his weight;
x.The First Respondent had no proper basis for assuming that the Appellant knew that the extension to the roof was laserlite and therefore non-trafficable.
(b)In the premises the Learned Trial Judge should have found that by reason of the fact that work was being carried out on the roof, it was foreseeable that one or other of the parties might attempt to walk on the laserlite extension.
2.The Learned Trial Judge erred in concluding that the risk of falling through the laserlite extension should it be walked on was an obvious risk in circumstances in which there was evidence that:
i.When looked at from above, the laserlite was opaque;
ii.The Appellant and his brother Clifton agreed to move the Hot Water System and place it adjacent to the gutter in the full knowledge that they were close to the laserlite extension roof (i.e. they knew where they were relative to the extension);
iii.In concluding that by reason of the fact the Appellant had constructed a laserlite canopy over his own pool some nine years before the accident, he would have known that the material on the Respondents' premises was the same; Alternatively;
iv.It was unreasonable to assume in the circumstances that a warning would have made no difference to the Appellant's actions;
v.It was wrong to assume that by reason of the Appellant having visited the Respondents' premises previously, that the Appellant knew that the extension was non-trafficable.
3.The Learned Trial Judge erred in failing to properly interpret the provisions of Section 5O of the Civil Liability Act 2002 (CLA) in context and as a consequence relieved the Respondents of the duty to warn the Appellant of the danger of stepping on to the laserlite extension.
PARTICULARS
a)Section 5O relieves a relevant party of the duty at law to warn of 'an obvious risk' as defined in the CLA.
b)Section 5O appears in Division 6 of the CLA under the heading 'Assumed Risk'.
c)In the circumstances the term 'obvious risk' as a matter of statutory interpretation can only apply to those risks which have been 'assumed' by the party.
d)Section 5O does not have wider application to tort law generally but is confined and limited by the heading of the Division in which it appears and is designed in the context in which it appears to facilitate the proof of the defence of 'volenti non fit injuria'.
e)As the Respondents had not pleaded 'volenti non fit injuria ', Section 5O of the CLA was not available to them as an independent defence.
4.The Learned Trial Judge erred in finding that a warning would have been of no effect in circumstances in which:
i.By reason of the Appellant's decision made with his brother, to move the Hot Water System to a position adjacent to the laserlite extension, it is reasonable to infer that the Appellant knew, relative to the topography of the roof, precisely where he was;
ii.The warning, if given, would have been proximate in time to the occurrence of the accident and thus fresh in the mind of the Appellant;
iii.it is more likely than not that the Appellant and his brother, as part of the decision-making process whereby the unit was moved adjacent to the laserlite extension, some discussion would have taken place between them as to the resting place of the unit and the physical state of the immediate area.
5. In the premises, the Learned Trial Judge should have found:
i.The risk of injury was foreseeable;
ii.There was no reason for the Appellant to know that there was a part of the roof upon which it was unsafe for the Appellant to walk upon or alternatively the risk that the Appellant might suffer injury if he walked on a particular part of the roof was not obvious to the Appellant (or a person in his position);
iii.An appropriate response from the First Respondent would have been to warn the Appellant of the nature of the roof by reason of:
a)       The risk not being an obvious risk, alternatively;
b)By reason of the application of the provisions of Section 5O being limited to situations in which volenti non fit injuria was pleaded (and not to the current situation).
iv.In the circumstances it is more likely than not by reasons of the matters pleaded in paragraph 4 hereof, the Appellant would have heeded any appropriate warning.
Regrettably, the grounds of appeal are, at once, too much and not enough.
Too much, because they are prolix and conflate a number of different issues of fact and law in each ground. Not enough, because the grounds (and the submissions in support of them) make no attempt to identify which findings by the learned trial judge were said to be in error.[31] Even at the hearing of the appeal, senior counsel for the appellant had difficulty identifying which paragraphs of the Primary reasons were challenged by which grounds of appeal.[32]
[31] Contrary to Rule 32(4)(d) of the Supreme Court (Court of Appeal) Rules 2005 (WA).
[32] Appeal ts 8-9.
In a number of respects, the appellant's approach to the appeal appears to have ignored the learned trial judge's findings entirely. Ground 1(a), for example, in its 10 particulars, refers to a variety of factual allegations that are either inconsistent with, or ignore, the findings in the Primary reasons.
Particular 1(a)(vi), for example, states that 'the Appellant's brother gave evidence that the laserlite extension looked like 'Colorbond' (which would have been trafficable)'. That evidence was specifically addressed by the learned trial judge who held:[33]
I cannot find evidence of his opinion to be of any weight. He did not give evidence about what led him to that view such as the features of the patio roof which indicated to him that it was constructed of that material. In addition his opinion is not indicative of any view taken by the plaintiff.
[33] Primary reasons [48(m)].
The appellant's submissions made no attempt to address, let alone challenge, this finding.
The appellant's submissions were equally amorphous when it came to the causative effect of the putative warning. In oral submissions, the appellant, ultimately, submitted that the appellant's case was that the appellant had deliberately stepped on the patio roof believing that it was safe to do so.[34] Only in those circumstances could a warning that the roof was unsafe even arguably have had a causal connection to the accident.
[34] Appeal ts 16.
Yet, such a submission runs headlong into the learned trial judge's finding that the appellant 'fell through the patio roof because he stepped backwards without looking where he was going'.[35] The grounds of appeal (and the submissions in support of them) do not directly address that finding or why it is said to be wrong. The submissions are, essentially, in the form of submissions in closing at trial, rather than submissions directed towards the identification of error.
[35] Primary reasons [89].
Illustrative of the general inadequacy of the appellant's case is the appellant's schedule filed in (purported) compliance with Practice Direction 7.4 of the Consolidated Practice Directions. That document refers to selected sub-paragraphs of Primary reasons [89], without identifying error, or indeed which of those sub-paragraphs are challenged. It makes no reference to the learned trial judge's finding that the risk was an obvious risk or to his findings as to causation.
Needless to say, the appellant's case in this matter was not conducive to the effective and efficient disposition of the appeal. On the contrary, it was positively unhelpful.
We turn to the individual grounds of appeal.

Ground 1 - Foreseeability of injury

Ground 1 contends that the learned trial judge erred in fact and in law in determining that the risk of injury to the appellant was not foreseeable.
This ground may be dealt with quickly. The learned trial judge did not find that the risk of injury to the appellant if he placed his weight on the patio roof was not foreseeable.
On the contrary, his Honour expressly recorded that it was not in dispute that if the appellant placed his weight on the laserlite panels it was foreseeable that the panels would fracture and he would fall through them and be likely to sustain significant injuries.[36]
[36] Primary reasons [9(b)].
Indeed, his Honour not only found that that risk of injury was foreseeable, he found that it was obvious (a finding challenged in ground 2). A risk of harm that is obvious is, plainly, foreseeable.
At the hearing of the appeal, when asked to identify the finding challenged by ground 1, the appellant identified paragraph [89(h)] of the Primary reasons, namely that '[i]t was not, from the [respondents'] perspective, reasonably foreseeable that the plaintiff would step onto the patio roof at any time during the removal of the unit'.[37]
[37] Appeal ts 9.
That finding was not a finding as to the foreseeability of harm, if the appellant stepped on the patio roof. It was a reference to the foreseeability, from the respondents' perspective, that the appellant would step onto the patio roof. Moreover, that particular finding was one of a number of matters referred to in Primary reasons [89] for the overall conclusion that:
the risk of harm to the plaintiff was not a foreseeable risk of which the defendants were required to warn the plaintiff. A reasonable person in the position of the defendants would not have warned the plaintiff of the risk of injury to him. (emphasis added)
The critical words in the first sentence of this passage are 'of which the defendants were required to warn the plaintiff'. That is: the risk of harm to the appellant was a foreseeable risk, but it was not one 'of which the defendants were required to warn the plaintiff'. The reasons for that conclusion are set out in the balance of Primary reasons [89].
Put simply, the learned trial judge found that it was not 'reasonably foreseeable' that the appellant would step onto the patio roof in part because the risk of doing so was so obvious. That is, it was inconceivable (from the perspective of a reasonable person) that the appellant would deliberately do such a dangerous thing and, for that reason, a reasonable person in the position of the respondents would not have warned the appellant of the risk of injury to him.
In this regard, it would have been preferable, in our view, for the learned trial judge not to use the expression 'reasonably foreseeable' in this context. When evaluating the response of a reasonable person to a foreseeable risk (i.e. the issue of breach), the court is more concerned with the probability or the likelihood of the relevant harm than with its 'foreseeability'.[38] References to 'foreseeability' of risk of harm should properly be reserved to those risks that are not far-fetched or fanciful[39] or to address s 5B(1)(a) of the Civil Liability Act.
[38] See Occupiers Liability Act s 5(4)(a); Civil Liability Act s 5B(2)(a).
[39] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47 (Mason J).
Nevertheless, in our view, it is clear from the Primary reasons, as a whole, that in paragraph [89(h)] the learned trial judge was using the expression 'not … reasonably foreseeable' in the more general sense of 'extremely unlikely'. This is made clear in Primary reasons [87] where his Honour expressed his conclusions as to the 'likelihood of probable injury' in terms that the respondents had no 'reason to foresee' that the appellant would step onto the patio roof. That is, his Honour was referring to the sheer unlikelihood that the appellant would take such an obvious risk.
In that regard, as the authorities make clear, in some circumstances, a foreseeable risk is so obvious and the remoteness of the likelihood of it eventuating may be such that reasonableness may require no response to the risk at all.[40] That is evidently what the learned trial judge concluded in the present case.
[40] Best Bar Pty Ltd v Warn [2019] WASCA 15 [40] (Quinlan CJ, Murphy & Mitchell JJA).
Subject to ground 2, which challenges the finding that the risk of standing on the patio roof was an obvious risk, the learned trial judge was not in error in concluding that 'the risk of harm to the [appellant] was not a foreseeable risk of which the [respondents] were required to warn the [appellant]', as contended in ground 1.
Ground 1 must fail.

Ground 2 - Factual finding of obvious risk

Ground 2, in its terms, appears to challenge the learned trial judge's finding, set out at [34] above, to the effect that the risk that the appellant would fall through the patio roof and sustain serious injury if he walked on or placed his weight on it was a risk that in the circumstances would have been obvious to a reasonable person in the position of the appellant.
The entirety of the appellant's written submissions, as to that factual finding, were as follows:[41]
It is submitted that it was unsafe for the Respondent/Defendant to assume that the Appellant/Plaintiff knew that part of the roof was non-trafficable when it appeared opaque from above (and had the appearance of colorbond) simply because the Appellant/Plaintiff had constructed a very different awning (albeit of similar material) some nine years previously and had visited the Respondent's/Defendant's premises on prior occasions.
It is one thing not to have to warn that it is unsafe to dive into rocks or walk off the edge of a cliff, but quite another not to have to warn that a part of the roof upon which a person is working will not bear a person's weight.
[41] Appellant's submissions [65] - [66].
As will be apparent, this submission does not address the factual findings that the learned trial judge made in relation to the risk being an 'obvious risk' or identify how those findings were said to be in error. Nor, as we have noted above, does the appellant's Practice Direction 7.4 schedule address those findings.

At the hearing of the appeal, the nature of the challenge to the learned trial judge's finding that the risk was obvious proved equally elusive.
Ultimately the following themes emerged, which we shall deal with in turn.
While it was not clear from the appellant's case, at the hearing of the appeal the appellant sought to challenge the finding that the appellant could not have been unaware that the patio roof was translucent and that it was constructed of material similar to the material of which the appellant had constructed a canopy roof at his own property.[42] Related to that finding was the finding that the appellant had visited the property on numerous occasions[43] and when he did so, he would normally walk under the patio roof.[44]
[42] Primary reasons [48(b) and (c)], [73(d)].
[43] Primary reasons [48(b)].
[44] Primary reasons [48(b)].
The appellant submitted the finding that the appellant could not have been unaware of the condition and nature of the patio roof was 'speculation without any evidentiary basis to reach anything'.[45]
[45] Appeal ts 18.
We reject that submission. There was ample evidence upon which the learned trial judge could base that finding. The appellant and the respondents had been neighbours for several years. Mr Tomlinson gave evidence, which was unchallenged, that he and the appellant visited each other's properties 'probably once a month' or 'at least' once a month.[46] He also gave evidence that on all of the occasions that the appellant came to the respondents' house he entered through the patio area that has the sheeting above.[47]
[46] Ts 89.
[47] Ts 90.
The learned trial judge had photographs of the patio roof (Exhibit 1) and a DVD video taken with the use of a drone (Exhibit 2). The photographs clearly depicted how the patio roof would appear to a visitor to the property. The photographs depict a dramatic difference between the appearance of the patio roof and the tiled roof. The patio roof is clearly translucent and constructed of a thin plastic material. The learned trial judge could see for himself (as can we) that the patio roof could not bear the weight of an adult person.
There was, therefore, in our view a firm foundation for finding that the appellant, a regular visitor to the property, would also have seen that for himself. The learned trial judge's finding was not speculation; it was irresistible.
The appellant also referred to the evidence of Clifton to the effect that the patio roof 'just looked like Colorbond to me'.[48] In our view, that evidence in no way stood in the way of the learned trial judge's finding that the risk of stepping on the patio roof was obvious.
[48] Ts 40.
First, the learned trial judge gave the evidence no weight for the reasons set out at [46] above. His Honour was entitled to do so and his reasons reveal no error.
Secondly, it is not even clear what, in context, Clifton meant by the expression that the patio roof 'looked like Colorbond'. In particular, whatever he meant, he should not be taken to have suggested by that evidence that he thought that the patio roof was made of metal or that it was trafficable. Later in his evidence he agreed that the patio roof 'was letting light through, yes'.[49] That evidence was inconsistent with any suggestion that the patio roof was sheet metal.
[49] Ts 48. While he also said, 'I wouldn't have been taking any notice of that', that answer did not detract from his observation that the patio roof was, in fact, translucent.
The challenge to the learned trial judge's finding that in the circumstances the risk of harm in stepping on the patio roof would have been obvious to a reasonable person in the position of the appellant must fail.
Ground 2 therefore fails.

Ground 3 - Section 5O of the Civil Liability Act

The appellant submits, as a matter of statutory construction, that s 5O will only ever be engaged when the common law defence of volenti non fit injuria (volenti) is pleaded.[50] Accordingly, the appellant submits that the trial judge erred in applying s 5O in the present case, because there was no pleading or finding that the appellant voluntarily assumed the risk of harm.[51]
[50] Appeal ts 10, 32; Appellant's Submissions [20]; Ground of Appeal 3.
[51] Appeal ts 26, 29.
For the reasons set out below, the appellant's submissions must be rejected.

The proper construction of Section 5O

Section 5O is set out in full at [28] above. Critically, it provides in sub‑section (1):
A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.
The task of construing this provision must begin, and end, with the statutory text. As the High Court stated in Thiess v Collector of Customs:[52]
Statutory construction involves attribution of meaning to statutory text. As recently reiterated:
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text'. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text.'
[52] Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler and Keane JJ).
The text of s 5O is clear and unambiguous. It provides, in terms, that, in circumstances in which a risk to the plaintiff is an obvious risk (within the meaning of s 5F), a defendant has no duty to warn the plaintiff of that risk. As Basten JA said, in the context of the equivalent provision in the Civil Liability Act 2002 (NSW), 'subject to the cases excluded by [s 5O(2)], [s 5O(1)] removes any duty to warn of an obvious risk'.[53]
[53] Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308; (2018) 99 NSWLR 98 (Kempsey) [11] (Basten JA).
Put another way, and subject to s 5O(2), as there is no duty to warn of an obvious risk, a defendant cannot be liable for the failure to warn a plaintiff of an obvious risk. The learned trial judge was correct to so hold.
There is no foothold, whatsoever, in the text of s 5O for the suggestion that the section is limited in its application to cases in which the defence of volenti is pleaded.
The appellant's submission was, ultimately, that s 5O(1) is to be read as if it included the additional words underlined below:[54]
A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff where the defendant has pleaded and the court has found a voluntary assumption of risk.
[54] Appeal ts 30. See also Appeal ts 32.
No principle of statutory construction could support such a radical reconstruction of the statutory language. To so construe the provision would amount to rewriting the legislation and would violate the separation of powers between the legislature and the judiciary.[55]
[55] Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 (Taylor) [40] (French CJ, Crennan & Bell JJ).
Having regard to the statutory text, with respect, nothing further needs be said of the construction of s 5O. Its terms are clear. Moreover, if read and construed in the manner advanced by the appellant, the provision would achieve nothing. On the appellant's construction, s 5O could only apply where a defence of volenti is raised and succeeds. However, in that circumstance the exclusion of any common law duty of care to warn has no practical consequence - the defendant will succeed in any case by reason of having successfully invoked the volenti defence. The conclusion that the defendant voluntarily assumes the risk in question (for the purposes of volenti) is readily seen as equivalent to concluding that the defendant owed the plaintiff no duty of care.[56]
[56] Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510 [81] (Gummow, Hayne & Kiefel JJ).
It is, nevertheless, necessary to deal with a number of specific matters raised by the appellant in his submissions.

The Heading of Part 1A Division 6 of the Civil Liability Act

The appellant placed significant reliance upon the heading of Part 1A Division 6 of the Civil Liability Act: 'Assumption of Risk'. Indeed, it was the only the textual matter in the Civil Liability Act relied upon by the appellant.
The heading of Part 1A Division 6, as with all of the headings in the Parts, divisions and subdivisions into which the Civil Liability Act is divided, is part of the written law. Section 32(1) of the Interpretation Act 1984 (WA) so provides.[57]
[57] In that regard it is the Interpretation Act 1984 (WA) that applies to the written laws of Western Australia, not, as the appellant's written submissions suggested, the Acts Interpretation Act 1901 (Cth).
From this, the appellant submits, in essence, that the heading 'Assumption of Risk' has a controlling effect on the words of s 5O itself, such that it should be construed in the terms identified in [88] above.
The submission must be rejected.
First, a heading in legislation, while forming part of the written law and relevant to the contextual construction of the written law as a whole, cannot be used to contradict the clear language of the sections in the legislation.
In this regard, an oft cited authority is that of Sir George Murray in Ragless v District Council of Prospect.[58] In that case Murray CJ articulated the following principles in relation to the use of headings in the construction of legislation:
1. If the language of the sections is clear and is actually inconsistent with the headings, the headings must give way. 2. If the language of the sections is clear, but, although more general, is not inconsistent with the headings, the sections must be read subject to the headings. 3. If the language of the sections is doubtful or ambiguous, the meaning which is consistent with the headings must be adopted.
[58] Ragless v District Council of Prospect [1922] SASR 299, 311 (Murray CJ).
Section 5O, in our view, clearly falls within the first category. The language of the section is clear.
Secondly, the heading relied upon by the appellant is the heading of a particular Division of the Civil Liability Act. The heading 'Assumption of risk' does not use the traditional language of the defence of voluntary assumption of risk. The words of the heading, in their ordinary meaning, are consistent with the proposition that s 5O means what it says. Further, the heading of the Division is expressed briefly and in general terms, and is less likely to bear on the meaning of particular sections in this context, than (say) the heading to a section.[59] In that regard, the heading to s 5O itself (i.e. 'No duty to warn of obvious risk') is clear and unambiguous and confirms the natural meaning of the text of the section.
[59] While a section heading does not form part of the written law (Interpretation Act 1984 (WA), s 32(2)), it is nevertheless capable of assisting in the ascertainment of the meaning of a provision, including to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context and the purpose or object of the law (Interpretation Act 1984 (WA), s19(1)(a), s 19(2)(a)).
Thirdly, it might also be observed (without wishing to be too critical of the Parliamentary draftsperson) that the heading of Part 1A Division 6, is not the only respect in which the headings in the Civil Liability Act (in the various States that it has been enacted) are discordant with the sections themselves. Section 5B, for example, in both the Civil Liability Act and its New South Wales equivalent is found under the Division heading 'Duty of Care'. As the High Court observed in Adeels Palace Pty Ltd v Mourbarak that heading is 'apt to mislead'; s 5B is concerned not with duty of care, but with breach.[60]
[60] Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 [13] (French CJ, Gummow, Hayne, Heydon & Crennan JJ).
Before leaving the heading to Part 1A Division 6, it is just as well to identify how it is that the heading appears to have found its way into the Civil Liability Act. This may serve to explain the apparent incongruity between s 5O and the heading. It is also relevant, as will be seen, to a proper understanding of one of the authorities relied upon by the appellant.
As has been recognised before, many of the provisions in the Civil Liability Act (and its interstate equivalents) find their genesis in a report to the federal Minister for Revenue and Assistant Treasurer prepared by a Panel chaired by the Hon. David Ipp entitled Review of the Law of Negligence Final Report dated September 2002 (Ipp Report).[61]
[61] See Child and Adolescent Health Service v Mabior [2019] WASCA 151 [299] (Quinlan CJ, Murphy & Pritchard JJA); East Metropolitan Health Service v Ellis [2020] WASCA 147 [610] (Quinlan CJ, Mitchell & Beech JJA).
The Ipp Report included (in Chapter 8) a particular section headed 'Assumption of Risk'.[62] That section did indeed deal with the defence of assumption of risk (i.e. volenti). The recommendation in that section included the proposal that, for the purposes of the defence of volenti, a plaintiff should be presumed to be aware of an obvious risk.[63] Clearly, that recommendation is reflected in s 5N of the Civil Liability Act, the other substantive provision appearing in Part 1A Division 6. It might, therefore, reasonably be inferred that the heading to that Division was also taken from that section of the Ipp Report.
[62] Ipp Report, [8.28]-[8.32] (pages 129-130).
[63] Ipp Report, recommendation 32 (page 130).
The section of the Ipp Report dealing with 'Assumption of Risk', however, did not make any reference to the duty to warn of an obvious risk, nor did it include any recommendation to enact a provision along the lines of s 5O.
A different, although related, recommendation appears in another section of the Ipp Report - in Chapter 4 (entitled 'Not-for-Profit Organisations'; but, as will be seen, having more general relevance).[64] That recommendation proposed the principle that 'a person does not breach a proactive duty to inform by reason only of a failure to give notice or to warn of an obvious risk of personal injury or death, unless required to do so by statute'[65] (emphasis added). While expressed in terms of negativing breach, rather than excluding duty, the practical effect of the recommendation is consistent with the ordinary and natural meaning of the text of s 5O. Interestingly, for present purposes, the example given in the discussion of the recommendation related to the liability of occupiers is in relation to warnings of dangers on their land.[66]
[64] Ipp Report, [4.26]-[4.34] (pages 67 - 69).
[65] Ipp Report, recommendation 14 (page 68).
[66] Ipp Report, [4.28] (page 67).
This recommendation is the progenitor of s 5O and, as appears from the Ipp Report itself, was quite unrelated to the defence of volenti. Nevertheless, and notwithstanding its different purpose, s 5O appears to have been included after s 5N of the Civil Liability Act, perhaps for no other reason than that both provisions deal with obvious risks.

Does s 5O remove the duty of care completely?

The appellant also submitted that, if s 5O 'had an independent existence outside the concept of 'Assumption of Risk' the Defendant would probably have had no duty to do anything'.[67] That submission appears to proceed from a policy argument that, so construed, the effect of s 5O would be unjust or unreasonable and that the Court should therefore reject the construction.
[67] Appellant's submissions [57].
In that context, the appellant referred to the judgment of McHugh J in Vairy v Wyong Shire Council to the effect that, at common law:[68]
Leaving aside cases of volenti, however, it is not the law that a defendant has no duty to take reasonable care for the safety of the plaintiff or that no warning is required if the risk of injury is, or ought to be, obvious to the plaintiff. The logical consequence of such a proposition would be that, except in those cases where the danger was unknown to or unobservable by the plaintiff, the defendant would not be required to take any action to eliminate the most dangerous risk of injury. In most cases, the greater the danger, the more obvious is the risk of injury.
Discharge of the defendant's duty requires the defendant to eliminate a risk - whether or not it is obvious - whenever it would be unreasonable not to do so. That proposition applies in all cases of alleged negligence including diving cases. The obviousness of the risk goes to the issue of the plaintiff's contributory negligence, rarely to the discharge of the defendant's duty … (original emphasis)
[68] Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [45]-[46] (McHugh J).
There are three reasons why this submission is misconceived.
First, Vairy v Wyong Shire Council was concerned with the position at common law; not with the construction of the Civil Liability Act. Insofar as a defendant's duty of care, at common law, required it to provide a warning in relation to a risk that is, or ought to be, obvious to the plaintiff, it is clear from its terms that s 5O was intended to change the law in that regard. As Basten JA said in Kempsey, '[t]he Civil Liability Act has changed the law in that respect'.[69]
[69] Kempsey [11] (Basten JA).
Section 5O is not to be construed so as to reflect the very law it was intended to change.
Secondly, s 5O does not have the effect that a defendant 'would probably have no duty to do anything' in relation to an obvious risk. On the contrary, s 5O is only concerned with the duty to warn; it leaves a defendant's duty to take reasonable care otherwise unaffected. Depending upon the circumstances of the particular case, for example, reasonable care may require a defendant to take steps to remove an obvious risk, or otherwise take steps to prevent injury from such a risk. Section 5O does not impact on the defendant's duty in that regard.
To take an example from the present case: the appellant pleaded, in his Statement of Claim, as one of the particulars of negligence, that the respondents:[70]
failed to erect a safety scaffold under the laserlite areas so that if the [appellant] inadvertently stepped on it, his fall would be broken and the height of the fall greatly reduced.
[70] Statement of Claim, [10(e)] (BAB 35).
If indeed reasonable care required the respondents to have taken this step (and they failed to do so), the appellant would have succeeded in his claim. Section 5O would have no operation in those circumstances.
Of course, as noted above, the appellant's case at trial was confined to the alleged duty to warn.[71] The other particulars of negligence were not pursued.
[71] Primary reasons [50]. See also Primary reasons [62].
Finally, even if s 5O on its proper construction had the effect of wholly removing the defendant's duty of care in relation to an obvious risk (which it does not), the Court's duty would be to give effect to that construction. The Court's task is construction and not judicial legislation.[72]

The New South Wales cases

[72] Taylor [40] (French CJ, Crennan & Bell JJ).

Finally, the appellant referred to a number of decisions of the Court of Appeal in New South Wales in relation to the Civil Liability Act 2002 (NSW).
The appellant submitted, in particular, that his construction of s 5O was supported by the judgment of McClellan CJ at CL in the New South Wales Court of Appeal decision of Carey v Lake Macquarie City Council.[73]
[73] Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Reports 81-874 (Carey v Lake Macquarie City Council).
Properly understood, Carey v Lake Macquarie City Council provides no support for the appellant's case.
The facts in Carey v Lake Macquarie City Council were that Mr Carey, who was riding a bicycle early one morning in the dark, was injured when he collided with a bollard that was placed in the middle of a concrete path in a park maintained by the respondent Council. By the time of the appeal before the Court of Appeal, the only allegation of negligence maintained by Mr Carey was that the bollard should not have been placed in the centre of the pathway.

McClellan CJ at CL concluded that the trial judge should have found that 'by placing the bollard in the centre of the pathway the Council breached its duty of care to the plaintiff'.[74]
[74] Carey v Lake Macquarie City Council [69] (McClellan CJ at CL).
Carey v Lake Macquarie City Council was, in that respect, not - on appeal - a failure to warn case.[75]
[75] The appellant had run a failure to warn case at trial, which failed because the risk from the bollard was obvious. That case was not, however, run on the appeal. See Carey v Lake Macquarie City Council [4] (McColl JA), [35] (McClelland CJ at CL).
This serves to explain, and put in context, the passages of McClellan CJ at CL's reasons relied upon by the appellant in this appeal. His Honour said, referring to the trial judge's reasons:[76]
In my opinion it was appropriate for his Honour to consider whether the risk that materialised was one that would have been obvious to a person exercising reasonable care for his or her own safety. As I have described below, whether a risk is obvious, in the sense of being readily apparent, is relevant to the question of whether or not the defendant has breached its duty of care. However, in the context of breach of duty, the statutory definition of an "obvious risk" in s 5F of the Civil Liability Acthas no operation. That definition is expressed to be "for the purposes" of Division 4 of Part 1A of the Act, which has the heading "Assumption of Risk" (note that under s 35(1)(a) the Interpretation Act 1987(NSW) division headings are to be taken to be part of the Act). Accordingly, his Honour was correct in excluding ss 5F and 5G from his consideration of the question of breach of duty (see C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 per Santow JA at [101]). It is plain from the passage quoted above that his Honour only considered these sections so as to determine, in accordance with s 5H [the NSW equivalent of s 5O], whether the respondent had a duty to warn the appellant about the risk posed by the bollards.
[76] Carey v Lake Macquarie City Council [34] (McClellan CJ at CL).
This passage does not support the appellant's construction of s 5O. The reference to the trial judge being correct in excluding s 5F and s 5G from his consideration of breach is a reference to the equivalent sections to s 5F and s 5N of the Civil Liability Act. Section 5N (i.e. s 5G in New South Wales) is indeed concerned with the defence of volenti (see [103] above) and is not relevant to breach.
McClellan CJ at CL, however, does not say that s 5H (the New South Wales equivalent of s 5O) only applies in cases of volenti. On the contrary, his Honour (in the final sentence of this passage) acknowledges that the trial judge only considered the question of obvious risk in the context of the duty to warn case – McLellan CJ at CL having earlier acknowledged that the trial judge had determined that the respondent had no duty to warn the appellant of the presence of the bollard as it represented an obvious risk.[77] In context, in our view, his Honour was endorsing the trial judge's approach in that regard. The trial judge had referred to the New South Wales equivalent of s 5F and 5O and concluded:[78]
When you put those together this was, as I have said earlier, as far as I am concerned, an obvious risk. It was not as obvious at night as it was in the day time. It was an area the plaintiff knew well. He had passed by this bollard walking on numerous occasions. He was aware there were bollards in the park. In my view, for him, it was an obvious risk. What had actually happened I think he summed up in his evidence by saying he did not think about it when he went down that path. But that makes it no less obvious and I am satisfied there is no duty to warn for that reason …
[77] Carey v Lake Macquarie City Council [33] (McClellan CJ at CL).
[78] Carey v Lake Macquarie City Council [33] (McClellan CJ at CL).
Also important in considering the passage relied on of McClellan CJ at CL's reasons is the reference to Santow JA's reasons in C G Maloney Pty Ltd v Hutton-Potts at [101]. There, having quoted the statutory definition of 'obvious risk' and the New South Wales statutory equivalent of s 5O, Santow JA stated:[79]
The statutory consequences in [the equivalents to s 5N and s 5O], where an obvious risk is found, operate in aid of the general law in two respects:
(a)in assisting the common law defence of voluntary assumption of risk, by introducing a rebuttable presumption of awareness of the relevant risk ("volenti"), and
(b)in obviating any common law duty of care to warn of an obvious risk to the plaintiff (with limited exceptions not relevant here).
[79] C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 [101] (Santow JA).
While not mentioned by McLellan CJ at CL, in the next paragraph Santow JA observed:[80]
Thus there can be no need to warn of a risk one is presumed to know (s 5G [the NSW equivalent to s 5N]) nor any proactive duty to warn of an obvious risk (s 5H [the NSW equivalent to s 5O]).
[80] C G Maloney Pty Ltd v Hutton-Potts [102] (Santow JA).
In referring, with obvious approval, to both the conclusion of the trial judge and Santow JA's reasons in C G Maloney Pty Ltd v Hutton‑Potts at [101] (as reproduced at [126] above), McLellan CJ at CL's reasons cannot be read as supporting the appellant's construction. His Honour does not state that the New South Wales equivalent of s 5O only applies to cases of assumed risk.[81]
[81] Compare Appellant's Submissions [55].
The second passage from Carey v Lake Macquarie City Council relied upon by the appellant was as follows:[82]
The statutory scheme created by Division 4 of Part 1A of the Civil Liability Actis not expressed with clarity (see, eg, B. McDonald, "Legislative Intervention in the Law of Negligence: The Common Law, Statutory Interpretation and Tort Reform in Australia" (2005) 27 Sydney Law Review 443).The heading to the Division suggests that the provisions relating to "obvious risk" were enacted for the purpose of informing the common law defence of voluntary assumption of risk. The Ipp Report reinforces this conclusion (see below). The statutory definition of obvious risk also applies in relation to the duty to warn (s 5H) and in relation to obvious risks involved in dangerous recreational activities (ss 5K and 5L). The provisions do not otherwise impact on the law of negligence (C G Maloney Pty Ltd v Hutton^‑Potts [2006] NSWCA 136 per Santow JA at [101]).
[82] Carey v Lake Macquarie City Council [71] (McClellan CJ at CL).
Again, this passage does not assist the appellant. The passage appears in the context of a discussion of the effect of s 5F and s 5G of the New South Wales Act on the defence of volenti in that case. As noted above, those provisions are concerned with volenti. His Honour does not, however, say that s 5H (the New South Wales equivalent of s 5O) is concerned with volenti. On the contrary, the word 'also' in the penultimate sentence of this passage, makes clear that the definition of 'obvious risk' has a role to play other than in the context of volenti.
His Honour's reference to what the heading to the Division 'suggests' must be seen in the context of the discussion of s 5F and s 5G. Significantly, that reference appears immediately following his Honour's reference to the expression of the statutory scheme lacking 'clarity'. As we have noted at [100] above, one of the areas in which the Civil Liability Act does lack clarity is in its headings.
Carey v Lake Macquarie City Council was the only authority said to support the appellant's construction. Properly understood, it does not.
Otherwise, all of the New South Wales cases - both before and after Carey v Lake Macquarie City Council - unambiguously speak with one voice. For example:[83]
[The] submission that it was necessary that the [defendant] establish that the [plaintiff] voluntarily assumed the obvious risk identified by the primary judge before s 5H applied does not find support in the text of the CLA.
… [T]he operation of s 5H [is] independent of any necessity to prove voluntary assumption of risk.[84]
A finding of obvious risk under s 5F … eliminates that part of a defendant's duty of care which involves a warning of such a risk.[85]
The concept of an "obvious risk" long pre-dated the enactment of the Civil Liability Act. However, under the general law, the obviousness of a risk was not an answer to a claim in negligence. Although it was an important consideration in many circumstances, the question to be asked, in all cases, remained what a reasonable response required from the defendant in the particular circumstances. The Civil Liability Act has changed the law in that respect; subject to the cases excluded by s 5H(2), s 5H(1) removes any duty to warn of an obvious risk.[86]
[83] In addition to the quotations that follow see: Jaber v Rockdale City Council [2008] NSWCA 98; (2008) Aust Torts Reports 81-952 [40] (Tobias JA; Campbell JA and Handley AJA agreeing); C G Maloney Pty Ltd v Hutton-Potts [101] - [102], [117] (Santow JA), [170] (Bryson JA); Angel v Hawkesbury City Council [2008] NSWCA 130 [83] (Beazley and Tobias JJA; Spigelman CJ, Giles & Campbell JJA agreeing); Liverpool Catholic Club v Moor [2014] NSWCA 394 [52] (Meagher JA; Tobias AJA agreeing), [72] (Emmett JA); Singh v Lynch [2020] NSWCA 152 [10] (Basten JA), [149] (Payne JA).
[84] Collins v Clarence Valley Council [2015] NSWCA 263; (2015) 91 NSWLR 128 [152], [155] (McColl JA; Macfarlan & Emmett JJA agreeing). See also [156] (McColl JA; Macfarlan & Emmett JJA agreeing).
[85] Schultz v McCormack [2015] NSWCA 330 [85] (McColl JA; Macfarlan JA agreeing).
[86] Kempsey [11] (Basten JA; McColl JA agreeing). See also [15], [37] (Basten JA; McColl JA agreeing), [72] (Simpson AJA).
The appellant's construction of s 5O is not supported by authority.

Conclusion as to Ground 3

The appellant's submission that s 5O is only engaged in the context of volenti is not supported by text, context, purpose or authority.
Ground 3 must fail.

Ground 4 - Causation

Ground 4 challenges the learned trial judge's finding that he could not be satisfied that, but for the failure to warn the appellant of the risk posed by the patio roof, the appellant would not have stepped back and fallen to the patio below.[87]
[87] Primary reasons [95].
At the hearing of the appeal, the appellant initially appeared to submit that the need for the warning arose at the time that the appellant was close to the guttering. That is, the appellant appeared to be suggesting that the warning was not so much as to the condition of the patio roof (i.e. that it would not bear the appellant's weight) but rather that the appellant was about to step onto the patio roof (presumably inadvertently).[88]
[88] Appeal ts 13.
That was not, however, the appellant's case at trial. The putative warning on the appellant's case was as to the condition of the patio roof; namely that it was not safe to stand on (not as to the appellant's location when he was about to step on it).[89] Indeed, as the learned trial judge found, Mr Tomlinson was not present when the accident occurred. Ultimately, at the appeal hearing the appellant reverted to his case at trial - senior counsel submitting that the appellant deliberately stepped on the patio roof believing that it was safe to do so.[90]
[89] Ts 124.
[90] Appeal ts 16.
That was the case that was rejected by the learned trial judge as a matter of fact. His Honour found that the appellant fell through the patio roof because he stepped backwards without looking where he was going. That finding was open to the learned trial judge. Indeed, given his Honour's finding as to the appellant's awareness that the patio roof could not bear his weight, that finding was irresistible.
Ground 4 must fail.

Ground 5 - The ultimate findings

Ground 5, which commences 'in the premises', is simply a restatement of the appellant's position in the event that he established error in relation to the other grounds of appeal. It has no independent role in the appeal and the appellant did not make any further submissions in relation to it.
Given that the appellant has not established error in relation to any of the other grounds, Ground 5 must also fail.

Conclusion

The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Principal Associate to the Honourable Chief Justice Quinlan
30 SEPTEMBER 2020