Jenner v Mundrabilla Roadhouse Pty Ltd - [2021] WADC 59

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   JENNER -v- MUNDRABILLA ROADHOUSE PTY LTD [2021] WADC 59
CORAM:   TROY DCJ
HEARD:   15 & 16 APRIL 2021
WRITTEN SUBMISSIONS RECEIVED ON 30 APRIL AND 14 MAY 2021

DELIVERED          :   18 JUNE 2021
FILE NO/S:   CIV 477 of 2018
BETWEEN:   VICTOR REGINALD JENNER
Plaintiff
AND
MUNDRABILLA ROADHOUSE PTY LTD
Defendant

Catchwords:

Torts - Negligence - Duty of care - Duty to Warn - Obvious risk - Remote roadhouse - Liability of owner - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA)
Occupiers' Liability Act 1985 (WA)

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff	:	Mr A Gunasekera
Defendant	:	Mr N F Morrissey

Solicitors:

Plaintiff	:	Peninsula Personal Injury Lawyers
Defendant	:	Greenland Legal

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

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Connell v The Queen (No 6) (1994) 12 WAR 133
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Francis v Lewis [2003] NSWCA 152
Ghantous v Hawkesbury City Council (2001) 206 CLR 512
Jones v Bartlett (2000) 205 CLR 166
Keven Gors by his Plenary Administrator Janet Christine Gors v Tomlinson [2020] WASCA 164
Marsh v Baxter [2015] WASCA 169
Nikolich v Webb [2019] WADC 58
Nikolich v Webb [2020] WASCA 169
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1966] 2 All ER 709
Raad v VM & KTP Holdings Pty Ltd as Trustee for VM & KTP Nguyen Family Trust [2017] NSWCA 190
Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330
Sakoua v Williams [2005] NSWCA 405
Schultz v McCormack [2015] NSWCA 330
Stenning v Sanig [2015] NSWCA 214
Sutherland Shire Council v Safar [2017] NSWCA 203
Taylor v Fisher [2018] WASCA 126
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

TROY DCJ:

Introduction

In December 2015 the plaintiff Mr Victor Jenner was a 68‑year‑old road train driver. For a number of years, in the course of his occupation, he had stayed overnight at the Mundrabilla Roadhouse, Eyre Highway, Mundrabilla. The defendant, Mundrabilla Roadhouse Pty Ltd is the owner and operator of this roadhouse. The owner/managers of the roadhouse, both of whom gave evidence, are Mr Bruce Mulroy and Mrs Joanne Mulroy. On the evidence Mr Mulroy was mostly responsible for outside maintenance.[1] The roadhouse caters for short-term guests and is in a remote location.[2]
[1] ts 209.
[2] Approximately 76 km from the border with South Australia: plaintiff's outline of submissions 17 March 2020.
On 5 December 2015 Mr Jenner had driven some 15 - 16 hours from Perth before stopping for the night at the Mundrabilla Roadhouse. He had noted that it rained all day. There was a sudden downpour in Mundrabilla immediately before his accident. Following his arrival, Mr Jenner walked along a particular footpath on a number of occasions, until at about 5.40 pm he slipped on this footpath, which was wet, and fell. He suffered a fracture to his left fibula and tears to the medial meniscus and medial ligament of his left knee. Quantum is not disputed.
Mr Jenner asserts that the defendant is liable for his injuries. Having identified a risk of harm, he contends that this risk was not obvious, so that there was a duty to warn.
Mr Jenner asserts that the defendant failed to:
•ensure that the premises were installed with any or any adequate guttering to ensure that the rain would drain off an adjacent roof rather than run directly onto this footpath;[3]
•ensure that the premises were installed with any or any adequate drains to allow the water to be drained off and away from the footpath;[4]
•install a non-slip surface on the footpath;[5] and
•erect any or any adequate warning signs to warn him of the slippery nature of the footpath when wet.[6]
[3] Statement of claim, particulars of negligence par 7.1.
[4] Statement of claim, particulars of negligence par 7.2.
[5] Statement of claim, particulars of negligence par 7.3.
[6] Statement of claim, particulars of negligence par 7.4.
Mr Jenner also asserts that the defendant failed to heed to any of the prior complaints made to Mr and Mrs Mulroy, regarding the slippery nature of the footpaths when wet.[7] Although this is pleaded as a separate particular of negligence, it is really an argument that in light of the information that had been conveyed to it, the defendant should have done the various things that are set out at particulars of negligence pars 7.2 - 7.4. As noted below, what is missing from the particulars of negligence is any assertion that there was a failure to ensure that the particular pathway was covered.
[7] Statement of claim, particulars of negligence par 7.5.
Whilst not disputing that it owed Mr Jenner a duty of care,[8] the defendant denied that the footpath was a danger, submitted that it had not breached its duty of care and said that the accident was caused by Mr Jenner's own carelessness.
[8] Paragraphs 13 and 16 of opening submissions and pars 29 and 35 of closing submissions.
In the alternative, if Mr Jenner was aware of any danger in walking along a wet footpath in rubber thongs, but chose to do so anyway, he would voluntarily assume the risk and, as a result of s 5(2) of the Occupiers' Liability Act1985 (WA) (the OLA), no breach of the defendant's statutory duty arises.
If, contrary to the primary submissions, the defendant was found to be liable to Mr Jenner, there should be a substantial reduction for contributory negligence:
Statement of issues
1.What was the nature of the risk?
2.What were the factual circumstances of Mr Jenner's fall?
3.Was the risk an obvious one so that there was no duty to warn?
(a)Mr Jenner's previous experiences at the roadhouse.
(b)Mr Jenner's knowledge of the weather conditions that day.
(c)The relevance of Mr Jenner's state of fatigue at the time of the accident.
(d)The nature of the surface of the pathway that Mr Jenner slipped on.
(e)Whether there were any dips or unevenness in the surface.
(f)Conclusion on issue of prior complaints.
4.Even if there was no duty to warn, was there a foreseeable risk of harm that was not insignificant?
5.If so, what precautions should the defendant have reasonably taken to guard against such a risk?
(a)Should the pathway have been coated with non-slip paint?
(b)Should the pathway have been covered?
(c)Should there have been a gutter on the adjacent roof and drains at the side of the pathway?
6.Conclusion on whether the defendant was required to take the precautions contended for.
7.Conclusion - did the defendant breach its duty of care to Mr Jenner?
8.Did any breach of duty by the defendant cause the injury to Mr Jenner (was its fault a necessary condition of the harm)?
9.If it did, did Mr Jenner voluntarily assume the risk?
10.If the defendant did breach its duty of care, and if Mr Jenner did not voluntarily assume the risk, is there, nonetheless, an element of contributory negligence?
The proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care.[9] The defendant accepts that it owed a duty of care to Mr Jenner, both at common law and, given the fact that Mr Jenner was a visitor, under the OLA. The provisions of the Civil Liability Act2002 (WA) (the CLA) apply. It is common ground that the recent case of Nikolich v Webb[10] provides the legal framework to be followed.
[9] Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 [18] (Gummow J).
[10] Nikolich v Webb [2020] WASCA 169.
In Nikolich v Webb the claim was pursued in terms of negligence under the common law, breach of an implied contractual duty and breach of a statutory duty of care under the OLA. The trial judge determined the claim in negligence, that being the focus of the trial. On appeal there was no challenge to that approach.[11] Likewise, in the present case, Mr Jenner's written closing submissions focus entirely on the issue of negligence.
[11] Nikolich [34].
In considering the issue of duty, breach and causation, it is important to identify the proper starting point for the relevant inquiry. The correct approach is to commence a consideration of negligence by having regard to the CLA first and then the common law, even if there is little or no distinction to be drawn between them.[12]
[12] Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 [11] as applied in Nikolich v Webb [2019] WADC 58 [79] (Quail DCJ).

The nature of the risk of harm - Issue (1)

As the court (Murphy, Beech and Vaughan JJA) observed in Nikolich at [68]:
proper articulation of the relevant risk of harm should be the norm whenever the CLA's provisions fall to be applied.
Here, the plaintiff contends for the risk of Mr Jenner slipping and suffering significant injury on a part of an uncovered and exposed concrete path after (undoubted) heavy rainfall.[13]
[13] ts 56.

What were the factual circumstances of Mr Jenner's fall? - Issue (2)

This is a case where a mature, able-bodied adult walked along a very wet footpath whilst wearing rubber thongs, slipped and sustained a serious leg injury. The footpath was uncovered and was therefore open to the elements. It was close to a roof without a gutter and so from which rain water would readily fall off. There were no drains by the side of the pathway. It had rained all day and in particular there had been a heavy downpour just before the accident. Was slipping and falling over in those circumstances a risk that was clearly apparent or easily recognised or understood? The wetness, and therefore likely slipperiness, of the footpath is the hazard that informs the obviousness of the risk.
In assessing the obviousness, or otherwise, of the risk, I must consider the surrounding circumstances which occurred immediately prior to Mr Jenner's fall so as to identify the factual scenario he faced. Mr Jenner made a telephone call from a phone booth for about 10 minutes, during which it rained heavily for three or four minutes.[14] It had been raining all day. His accident occurred on his way back to his room from the phone booth.[15] He turned left onto the pathway, took one and a half, two steps when his right leg shot out from (under him) and he fell heavily on his left bent knee.
[14] ts 71.
[15] ts 74.
Part of the cross-examination of Mr Jenner concerned any inconsistency between his evidence about where he had walked immediately before he slipped, as compared to a statement he had made to the insurance company's assessor on 21 January 2016.
In his evidence-in-chief, Mr Jenner had said that:[16]
I turned the corner, would have had my right leg partially around the corner. I took one step with my left, followed up with another step with my right. And as I put my right foot down it slid away from me. Would have been two - probably four or five feet in on the slab by this time.
(my emphasis)
[16] ts 77.
At this point of his evidence Mr Jenner is clearly describing walking along the concrete pathway.
According to Mr Jenner the site of the accident is marked as 'X' in the photograph tendered as exhibit 3.1.[17]

[17] Mr Jenner provided various estimates as to when the photographs in exhibit 3 were taken in relation to the accident, varying from a month or so after the accident (ts 79) to a year (ts 81).

At another part of his evidence,[18] Mr Jenner marked the site of the accident as 'S' in a photograph of the pathway which was tendered as exhibit 7.1.

[18] ts 85.

Although Mr Jenner marked the site of the accident in two slightly different places, I do not attribute any significance in that.
The only other potential witness to Mr Jenner's fall was a Mr Emil Johansen who was called as a witness by Mr Jenner. Mr Johansen marked the site of the accident as 'X' in a photograph of the pathway which was tendered as exhibit 7.2.

In his evidence Mr Johansen said that he was having a beer and a cigarette out at the back door of room 6. He noticed Mr Jenner come around the corner, turned left to go to the common room and then slipped:[19]
And his back leg went under his backside and his left leg (my emphasis) went out in front of him and he fell back on his right leg.
[19] ts 134.
Mr Johansen said that:[20]
[T]he footpaths that are uncovered get wet but the one where Vic went and had his accident, that had a bit of a puddle but it also just had a slippery surface.
[20] ts 135.
I acknowledge the fact that Mr Jenner is profoundly deaf and gave evidence using a hearing loop. He is now 73 years old. He would not be experienced in giving evidence and having his account tested in cross‑examination. Counsel advised me that he was taken heavy pain medication as a result of his treatment for adenocarcinoma. Nonetheless, Mr Jenner was in my view a very difficult witness, whenever he was pressed on a point. He was in my opinion deliberately evasive. He frequently interrupted counsel for the defendant. He was on occasions sarcastic and concluded some of his answers with sotto voce expletives. I will set out verbatim some of the passages of cross‑examination which led to those conclusions.
By contrast I found that both Mr Mulroy and Mrs Mulroy gave evidence in a straightforward and matter of fact fashion and made concessions where appropriate. Mrs Mulroy is employed as a care support worker. Mr Mulroy is a trade assistant engaged in fixing up broken crushing plants and conveyor belts. Whilst still managing the roadhouse they moved back to Perth in or about 2016 as their daughters were going to high school.
Mrs Mulroy largely agreed with the various propositions put to her in cross-examination. She acknowledged any limitations on her ability to provide relevant evidence, for example on the reason not to replace the guttering and the downpipes.[21] She accepted that if something akin to the examples shown to her of covering was recommended she would have agreed to it.[22] She agreed that any path is slippery when it is wet and that she was aware of non‑slip coating or non‑slip paint.[23]
[21] ts 186.
[22] ts 188.
[23] ts 189.
Mrs Mulroy accepted that there had been legitimate complaints about the potholes at the entrance to the roadhouse, and that she sought to rectify that by liaising with Main Roads.[24] She acknowledged that there was certainly no sign or any kind of warning to people not to wear thongs.[25]
[24] ts 195.
[25] ts 207.
Mr Mulroy accepted that there would occasionally be complaints, for example a TV might not have had enough channels, or the toilet wasn't flushing, or the air conditioner was not working.[26]
[26] ts 210.
During Mr Jenner's cross-examination on his January 2016 statement, he was asked if he read an earlier workers' compensation claim form before he signed it and answered:
I don't know, probably not, no.
Cross-examination continued in the same vein:[27]
[27] ts 103 - ts 104.
You're not going to sign something you haven't read?
I probably glanced it but I didn't - probably didn't read it all, no. Why, I don't know where you're - why? It's -what's the problem?
Can I suggest to you that you did read this document before you signed it?
Well, let's say that I read it then, okay.
No, is that your evidence?
I don't know if I read it or not it's so long ago.
Is your evidence that you can't recall?
I can't recall, yeah.
Yes. Generally when somebody asks you to sign a legally binding document do you read it?
Not all the time, no.
The first paragraph of the signed statement of 21 January 2016 read:
this statement made by me accurately sets out the evidence which I would be prepared if necessary to give in any court or legal proceedings as a witness.
Mr Jenner was asked:[28]
Do you accept that the statement says that?
What?
Do you accept that that is what is recorded in your statement?
Okay. Read it.
[28] ts 106.
Mr Jenner was taken to the second paragraph of his signed statement which contains the same declaration. Mr Jenner said:
That's what it says. … But I didn't write that down, no.
Finally Mr Jenner was taken to the last page, page 6 which reads, 'I have read this statement. It is true and correct to the best of my knowledge and belief.' The cross-examination continued:[29]
And that is what you did, didn't you? You read this statement before you signed it six times?
I don't know, probably not, why?
You don't accept that you've read the statement?
Well, I've just mentioned all I did was copy it out, I don't understand where you're going with this.
[29] Given that were six pages and this appears on every page.
Mr Jenner stated in evidence:[30]
as I said in my statement this morning, I was walking over to the dirt area.
[30] ts 111.
It was put to Mr Jenner in cross‑examination that he had not said that in his earlier evidence. Mr Jenner had been asked:[31]
If a 'slippery when wet' sign, was placed in front of you in this area where you fell, what would you have done?
[31] ts 79.
Mr Jenner stated that he would have looked closer at the area to see why the sign was there. And if it was a lot of water he would have walked on the dirt,[32] straight on the dirt.[33] So at that point of his evidence he seemed to be talking about what he would have done in the event that there had been a sign as opposed to what he actually did.
[32] As can be seen from the photographs a rough gravelled area on either side of concrete pathways.
[33] ts 79.
And so the questioning and responses that ensued in cross‑examination were as follows:[34]
[34] ts 111 - ts 112.
Which version's true?
On the statement it says I walked over to the dirt area.
You - in the statement you say that. That was not your evidence this morning?
That's what I said this morning.
You did not. You said that you took - you turned left, you took one step and on your second step, your right leg slipped out from under you?
Well, I'm going through the dirt area. Christ, it's on the …
Which version's correct?
All right. I admitted it. I apologise.
You were in fact ... ?
Fucking hell.
Were you deliberately trying to avoid this area?
Here we go. No, I wasn't deliberately doing anything. I fell down because I was walking at an angle to get away from the slippery area and there was water. I thought I was doing - getting onto the dirt.
Mr Jenner, your evidence this morning was that you didn't have prior problems with that slab and that you had walked on it four times … ?
I didn't have problems with the slab.
And that you had walked on it four times before you had your fall?
Cos I'm walking on the edge.
Sorry, can you just answer my question?
You accept that your evidence this morning was that you didn't have any issues with that slab prior to the fall on the day of the accident?
No, I didn't.
And you've walked on it four times?
Walked on it four times, yes.
Yes, backwards and forwards?
Yeah.
And that when you had your accident, you got to the walkway, you took a left and it was on your second step that you slipped?
Yeah.
You didn't give any evidence about walking off to the side because you knew that it was slippery?
Yeah, I didn't walk anything about off the side. Okay. So I didn't say it.
It was put to Mr Jenner that in his earlier evidence he said nothing about stepping off to the side area because he knew it was slippery. Mr Jenner responded:[35]
No, I didn't think it was necessary.
[35] ts 113.
I have considered whether this was the fault, to an extent, of the questioning. Or whether Mr Jenner intentionally omitted a, potentially at least, relevant surrounding circumstance. If, as Mr Jenner said in January 2016, he was trying to get away from the pathway to the dirt by its side, it tends to underscore the obviousness of the risk.
In examination-in-chief Mr Jenner was asked[36] if anything happened on the way back to his room. He was asked if he had noticed anything about this uncovered walkway and he said, 'no not really'. He was asked to mark with an 'X' where he slipped and also asked to explain the mechanism of his fall. Mr Jenner's counsel then tendered the photographs that are exhibits 3.1 - 3.6.[37]
[36] ts 74.
[37] ts 77.

When asked in cross-examination about his observations at par 28 of his January 2016 statement Mr Jenner said that:
there are 40 different slabs around that area. You're trying to get me to say I slipped on that slab. I have never slipped on that slab.
I am satisfied that there is an inconsistency in Mr Jenner's evidence at trial concerning his route immediately prior to the accident when compared to par 28 of his 21 January 2016 statement. Mr Jenner acknowledged that he had omitted the reference to stepping onto the dirt area in his evidence that morning.[38] I am not satisfied however that Mr Jenner deliberately omitted this detail. Rather, his focus was on describing his fall.
[38] ts 119.
Mr Jenner gave evidence that he took big steps:[39]
[39] ts 77, ts 125 - ts 126.
Do you accept that wet concrete is more slippery than dry concrete? (Indistinct) in certain areas, yeah.
Now, as I understood your evidence this morning, you took - you were on your second step at the time of your fall?
A: Second step? … It was on my first one with the right leg, yes, but it was more second.
Q: You were four to five feet into the path?
Onto the path, yeah, it was my second step.
And so you were taking full-size steps? Were you taking normal steps, normally … ?
No, the first one was only a small one. Cos I was just turning the corner.
So your small steps are about two and a half feet?
Well, a foot and a half, foot and a half, two foot.
Can I suggest to you that you were walking normally and if you were taking precautions you would have been taking smaller steps?
Well, walking normally, I'm six foot, five and a half. I probably do a three spread. I don't know. From toe to toe, it would be a good metre. But then I wouldn't have done a metre there, because I was walking towards the edge.

Mr Emil Johansen's evidence

Mr Johansen said that he had asked Bruce Mulroy to do something about it (the slippery footpath) on a number of occasions but he did not. They (seemingly Mr Johansen and other unidentified drivers) suggested using 'that paint' after Mr Jenner's accident.[40] Mr Mulroy painted from the front of the roadhouse up to the corner of the fence where unit 1 started in non-slip (paint). But he did not go round and fix up the part where Mr Jenner had his accident. Prior to the accident, Mr Johansen told Mr Mulroy that he would get into trouble if 'someone (goes) arse up here.'[41]
[40] A couple of months or so later: ts 136.
[41] ts 135 - ts 136.
I am satisfied that in giving this evidence Mr Johansen was referring to the particular area where Mr Jenner slipped. Accordingly, his apparent experience of repeatedly speaking to Mr Mulroy to advise him of the particular hazard posed by this particular pathway was not an experience shared by Mr Jenner. Mr Jenner's evidence was that he had never previously experienced any difficulties on this particular pathway.
Mr Jenner's evidence[42] was that immediately after the accident he lay on the ground for four or five minutes before he pulled himself up. Nobody came out immediately to provide him with assistance. Eventually Mrs Mulroy came out. She gave him some ice for his knee and generally fussed around him for five minutes.
[42] ts 74.
In his evidence-in-chief Mr Johansen said that he did not run to Mr Jenner's assistance. In essence he said that he had just finished his beer and going to the toilet to urinate took precedence.[43]
[43] ts 137 in his evidence-in-chief.
Unsurprisingly this was explored in cross‑examination. Mr Johansen said he 'was busting to go to the loo.' Although a moment earlier he had been having a drink and smoking a cigarette. It seems that the urgent impetus to leave the area to go to the toilet coincided exactly with Mr Jenner's fall. He was asked:
Well, how long does it take you to go to the toilet?
Well, I don't know, I didn't go straight in and straight out.
You saw a 68 year old man take a heavy fall, he's lying on the ground in a puddle and you just left him lying there when you went to the toilet?
No, I just went to the toilet.
Well, he was lying there when you went to the toilet?
Well, I've gone (indistinct) and gotten myself up. And I'm 67.
Can I suggest to you that it's implausible that you would have left your friend lying in a puddle after a heavy fall and gone to the toilet?
Well, it's either that or pee in me pants.
What I'm - what I'm suggesting to you is that you didn't see the accident at all?
Wanna bet?
Counsel for Mr Jenner submits that Mr Johansen was an impartial and detached witness. In his evidence Mr Jenner noted that shortly after his accident Mr Johansen brought him back to Perth in his rig.
I found Mr Johansen's evidence of his immediate response to Mr Jenner's heavy fall innately implausible. It causes me to have a very substantial doubt as to whether Mr Johansen ever saw the accident as he claims. That conclusion is underscored by the fact that Mr Johansen's evidence of which of Mr Jenner's legs slipped differs from Mr Jenner's evidence. It is further reinforced by the fact that Mrs Mulroy gave evidence, which I accept, that Mr Johansen did not say to her that he had seen the fall.[44]
[44] ts 206.

Was the risk of harm obvious so that there was no duty to warn? - Issue (3)

The nature of the risk of harm that Mr Jenner contends for is not controversial. The obviousness (or otherwise) of that risk is.
Was the defendant under a duty to warn Mr Jenner that the outdoor concrete footpath formed a potential slip hazard when wet? In particular, was the risk of slipping and falling on the wet footpath obvious?

The guiding legal principles

Section 5O of the CLA provides:
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.
Sub-section (2) does not arise in the present circumstances.
Section 5M provides that in div 6 'obvious risk' has the meaning given by s 5E. In turn, s 5E states that 'obvious risk' has the meaning given by s 5F. Section 5F then provides:
5F. Term 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.
Subject to s 5O(2), on its proper construction s 5O removes any duty of care to warn of an obvious risk (emphasis in original).[45]
[45] Keven Gors by his Plenary Administrator Janet Christine Gors v Tomlinson [2020] WASCA 164 [85] ‑ [86] as cited in Nikolich [74].
I adopt and apply the following principles as enunciated by the court in Nikolich [90] - [92].
The obviousness of a risk is a question of fact. It will turn on the evidence of what occurred and why the risk is one that is obvious. In broad terms, an 'obvious risk' is one which is clearly apparent or easily recognised or understood. The risk must be obvious in the sense that, in the circumstances, it would have been obvious to a reasonable person in the position of the plaintiff. Thus the test of obviousness is objective and does not turn on the subjective knowledge or beliefs of the plaintiff (although taking into account his/her personal characteristics).
The inquiry must take account of the objective circumstances of the plaintiff. The nature of the conduct or hazard that caused the harm also informs the obviousness of the risk. The surrounding circumstances which occurred immediately prior to the plaintiff suffering the relevant harm must be identified as it is necessary to identify the factual scenario facing the plaintiff. However, the process of determining whether a risk that has materialised is an obvious risk should not be over-intellectualised. The relevant language in s 5F is not technical and does not invoke a legal concept.
Identification of the risk asserted to be an obvious risk is an essential preliminary task in the determination of a defence. The degree of particularity or generality with which the risk is defined may dictate the outcome of the defence.
Identification of an obvious risk is a matter to be undertaken prospectively and without the benefit of hindsight. The prospective nature of the task therefore requires formulation of the risk at a reasonable level of generality as to the kind of risk involved, as opposed to 'fine-grained detail' available in hindsight as to how the event occurred. Nonetheless the specification of the risk must be of sufficient particularity to capture, fairly, the harm which resulted from the risk materialising on the facts of the particular case. Determining the appropriate level of particularity in the formulation of the relevant risk of harm involves some balanced application of hindsight so as to select the relevant risk from a range of possible risks otherwise ascertained by reference to foresight.

Mr Jenner's previous experiences at the roadhouse and any complaints he had made - Issue (3)(a)

Mr Jenner had been to this roadhouse dozens of times over the past eight years.
Mr Jenner relies upon his experience over the years at the premises in general and his immediate actions, in walking up and down the pathway just prior to the accident, to support his contention that the risk of harm was not obvious.
It may be assumed that on at least some of those prior attendances the weather was rainy so that the ground around the roadhouse would be wet. It may further be assumed that Mr Jenner had not previously experienced a fall or a near-fall that was in any way comparable to his accident on this day. None of that dictates that the identified risk on this particular day was anything other than obvious. In other words, the mere fact that a similar risk may have existed on previous occasions, but did not eventuate into harm, does not mean that there was no obvious risk given the conditions that existed on 5 December 2015.
The defendant's argument is a wet concrete pavement remains an obvious risk even if one has walked along a wet pavement at this location on a number of occasions in the past without any mishap. The plaintiff would say that the fact that a potential risk has never previously eventuated, despite the numerous visits, would suggest that it was not obvious to a person in Mr Jenner's position.
It is clearly the case that Mr Jenner was unusually familiar with the pathways of the roadhouse both in wet and dry conditions. That inevitably follows from the fact that he had been at the premises twice a week for the previous eight years or so. Mr Jenner's evidence was that he had never previously fallen or come close to falling on the particular section where he had his accident, although he had slipped acouple of times.
Mr Jenner relies upon his evidence that he had walked up and down that particular path on four occasions that very afternoon before his slip and that on one of the occasions he was in fact wearing thongs.
Mr Jenner said that generally the roadhouse was okay in wet conditions but a lot of the slabs would get wet, especially the uncovered areas and when it rained the water would just fall down onto the dirt.[46]
[46] ts 74.
So, on the issue of whether the risk was obvious I am entitled to bear in mind that, on his case, Mr Jenner was on notice that there was a potential for a slipping accident when walking around the pathways. Even if he had not specifically experienced such an occurrence at the precise site of his accident. I remind myself that a risk of something occurring can be an obvious risk even though it has a low probability of occurring: s 5F(3) of the CLA.
Applying the holding in Nikolich [90] - [92], a plaintiff's actual knowledge of matters which constitute the risk of harm may be relevant in two ways. First, the way in which the knowledge was acquired may be relevant to the prospective inquiry as to whether the risk would have been obvious to a reasonable person in the position of the plaintiff. Second, it may be relevant to know the extent to which the plaintiff was actually aware of the risk, in whole or part, so far as the obvious risk inquiry is into the knowledge that a reasonable person in the plaintiff's position should be taken to have had.
Mr Jenner testified that he did not notice anything about the uncovered walkway that he slipped on, other than it was 'just wet'. He had walked on it in the past including in wet conditions. He had never had any issue with it. He had never had any minor slips on that path.[47] Plainly he acknowledged that he knew it was wet.
[47] ts 77.
Mr Jenner was taken[48] to par 28 in his statement of 21 January 2016 where he had stated:
Over the years I've had occasion to slip myself but I've never injured myself. That is why I know that certain areas of the concrete can be slippery when wet and that is why I was walking to the side to get onto the dirt area where I knew it would not be slippery.
[48] ts 110.
So in his statement shortly after the accident, Mr Jenner spoke to his previous experience of knowing that parts at least of the concrete pathways can be slippery when wet. He stated that he was walking to the side in order to get to an area that he thought would not be slippery. I interpret this statement as referring to the very edge of the pathway or off the pathway and therefore to its side.
Mr Jenner said in the January 2016 statement that he knew that certain areas of the concrete can be slippery when wet. In his evidence he said that on 5 December 2015 he did not experience any difficulties with the particular slab prior to his accident. I am not satisfied that there is any inconsistency between these two concepts. A perception that there can be a hazard is not inconsistent with the fact that immediately prior to the accident he did not actually experience any difficulty, when traversing a potentially hazardous section.
Mr Jenner was asked about the plaintiff's answers of May 2018 to the defendant's request for further and better particulars of statement of claim.[49] Although Mr Jenner said that he had never seen this document before and that he had no idea when 'this was done' it plainly would have been prepared according to his instructions. That document asserts that Mr Jenner was not aware that the footpath was slippery. That is difficult to reconcile with par 28 of his January 2016 statement, which in essence explains that because of an awareness that the footpath was slippery, he was walking to the side (of the pathway) to get onto the dirt area which he knew would not be slippery.
[49] ts 124.
Mr Jenner stated in evidence that:[50]
some parts of the path were very smooth, other parts had (indistinct) so you can walk on it plainly - clearly. It depends what the conditions are. Some - some slabs there were very slippery and you had to mention that (to Mr or Mrs Mulroy).
[50] ts 73.
Mr Jenner stated that:[51]
I've mentioned it to Bruce a few times that some of the slabs were very slippery and you only got to walk on them and you'd slide.
[51] ts 76.
He said that Mr Mulroy never said much (in response).
Mr Jenner was asked in cross-examination:
When did you tell (Bruce and Joanne Mulroy) about any issue with slipping on the footpath or on the paths at the motel?
Mr Jenner responded:[52]
second year I was there probably, after the first rainfall.
[52] ts 126.
Mr Jenner could not be any more precise than that. He said that it wasn't a complaint, it was just an observation. He could not recall any specific conversation. Counsel put to Mr Jenner that he had no genuine memory of the complaint to the Mulroys. Mr Jenner said that he had, leading to this exchange:[53]
You can't remember when that happened?
For crying out loud. All right. 8.30 pm on 16 February 1916. How's that?
[53] ts 127.
Following a break Mr Jenner maintained that he did not know exactly when he made a complaint. It was not entirely clear from his evidence but it seemed to be the case that he was suggesting that it was made, initially at least, solely to Mr Mulroy and that Mr Jenner had said that:[54]
the paths would've been getting wet, that some are slippery and there's no guttering.
[54] ts 128.
Mr Jenner elaborated:[55]
I walked up and had a conversation with him and probably mentioned that it was slippery, yeah.
[55] ts 129.
There is substantial vagueness about when any complaint was made and its nature.

Mr Jenner's knowledge of the weather conditions that day - Issue (3)(b)

The plaintiff points to the observations of McFarlan JA in Sutherland Shire Council v Safar.[56] In that case the appeal was dismissed on the basis that the appellant breached its duty of care as occupier by not taking reasonable steps to prevent patrons bringing wet umbrellas and coats into an auditorium, or at least to minimise the instances of this occurring. The expert evidence indicated that the parquetry floor of the auditorium was highly slippery when wet.
[56] Sutherland Shire Council v Safar [2017] NSWCA 203 [14].
MacFarlan JA cited at [14] the holding in Ratewave Pty Ltd v BJ Illingby,[57] that the assessment of what was an obvious risk to a reasonable person in the position of the plaintiff must take account of the realities of everyday activities. It must also take into account the unreality of persons remaining focused on observing risks that, although detectable on careful examination, are not likely to be present in their minds as they engage in the activities which have brought them to the subject premises.
[57] Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103 [60] - [69].
None of that, with respect, could be challenged, but I bear in mind that in that case (as also set out at [14]) some 2 ¼ hours had elapsed between the time that the respondent entered the auditorium (and had knowledge of the water at that point) and the time at which she left. So far as she was concerned, many things could have happened in that period, including that the water had been mopped up, dispersed or had evaporated. Bearing in mind that the respondent was in the auditorium to see her daughter perform in a dance competition, it was unrealistic to expect that after that length of time the respondent would have had an ongoing risk of water being on the floor present in her mind with such clarity that it could be described as a risk that was, or should have been, obvious to her.
Here, Mr Jenner's fall occurred very close in time to a heavy downpour. There were no particular distractions.

Mr Jenner's fatigue at the time - Issue (3)(c)

In considering matters, I take account Mr Jenner's objective circumstances. I accept that Mr Jenner must inevitably have been fatigued at the time of his accident given his extremely long drive.
I do not consider it appropriate to approach matters on the basis of a reasonable person in the position of Mr Jenner but assuming that their judgment had been adversely impaired by fatigue. It may be that at the particular time Mr Jenner was understandably tired. But that is not a personal characteristic of Mr Jenner. It is simply the state that he would have been in at a particular time. Just as the reasonable person would be taken to be unaffected by alcohol, in my view they would also be taken to be unaffected by fatigue. The reasonable person is taken to be vigilant and alert.[58]
[58] Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1966] 2 All ER 709, 719.

The nature of the surface of the pathway that Mr Jenner slipped on - Issue (3)(d)

In Raad v VM & KTP Holdings Pty Ltd[59] the unchallenged evidence of the plaintiff's experts[60] was as follows. They made observations on a wet day three months after the plaintiff was injured. Tiles in the relevant area amounted to a near level surface finished using a glazed tile with marginal under foot wet friction characteristics. There was no effective surface drainage. So that even the newer tiles provided inadequate friction in their untreated state. The plaintiff's slip occurred because of inadequate underfoot friction when the tile surface was wet as rain water lying there could not drain away.[61] The uncoated tiles did not provide 'adequate' slip resistance (dynamic coefficient of friction below 0.35). The coated surface had a dynamic coefficient of friction of 0.4 when wet.[62]
[59] Raad v VM & KTP Holdings Pty Ltd as Trustee for VM & KTP Nguyen Family Trust [2017] NSWCA 190.
[60] Raad v VM & KTP Holdings Pty Ltd as Trustee for VM & KTP Nguyen Family Trust [14].
[61] Raad [9].
[62] Raad [12].

In that context, MacFarlan JA held that Raad was distinguishable from Ghantous v Hawkesbury City Council[63] where the pedestrian's negligence action against the local council failed because the imperfection in the footpath was readily perceivable. The slipperiness or otherwise of the subject tiles that resulted from their lack of coating (as distinct from their wetness) would not have been obvious to Mr Raad (or to a reasonable person in his position) before he attempted to traverse them: [31].
[63] Ghantous v Hawkesbury City Council (2001) 206 CLR 512.
It may, therefore, be accepted that if there was a slipperiness arising from the lack of coating or the nature of the concrete surface on this pathway that would not be obvious to a reasonable person in the position of Mr Jenner. The question is whether slipperiness arising from the wetness, through rain, would be an obvious risk.
And so any evidence about the slipperiness of the particular section of pathway where Mr Jenner fell becomes important. The only expert evidence came from Dr Steven Chew, called by Mr Jenner. Mr Jenner also relied upon the evidence of Mr Johansen concerning his previous observations and his complaints to Mr Mulroy.
I note in passing that the cases relied upon by Mr Jenner that relate to accidents[64] when traversing steps involve a heightened obvious risk and in my view do not analogously assist in the present case.
[64] Schultz v McCormack [2015] NSWCA 330; Stenning v Sanig [2015] NSWCA 214.
Dr Chew carried out a site inspection of the Mundrabilla Roadhouse on 30 May 2020. Dr Chew estimated the relevant area where the slip and fall incident occurred. He then took photographs of the area as set out at pages 7 - 9 of his 31 page report which was tendered as exhibit 12. He took measurements and then performed slip resistance test measurements as set out at page 12 onwards. He said in evidence that he identified seven test spots on the particular footpath itself,[65] although his report at pages 12 - 13 refers to eight test spots,[66] namely spots 1 ‑ 5, spots 3A, 4A and 5A. The spots were in an area 1 m into the footpath, walking towards the relevant room and 0.8 of a metre in the side spaced at 20 cm between each spot.
[65] ts 153.
[66] Of a dimension of 125 mm - 127 mm by 76 mm: ts 158.
For the water-wet tests, Dr Chew used a spray bottle to make sure that the surface was wet. The wet test results showed a variation from a low of 26 for spot 4A, to a high of 58 at point 3A.
Australian Standard Handbook ASHB197-1999 Table 2 provides five classifications known as slip resistance value. A number that exceeds 54 is characterised as a very low contribution of the floor surface to the risk of slipping. Anything below 25, conversely, is very high. Twenty six would be high, as would 33 which was the value for spot 4. Forty six would be within the low category.
The slip resistance value for the same spots when dry varied from 61 ‑ 67 with an average of 64. So when dry, this path poses a very low risk of slipping. When wet, viewed overall, it still presents a low risk of slipping, but there were two spots within the tested area which, in late May 2020, constituted a high risk of slipping when wet.
Dr Chew assumed that the results of the slip resistance test he performed on the subject concrete slab on 31 May 2020 were applicable at the time of the accident, 5 December 2015. He acknowledged that the validity of this assumption depended on the amount of wear the surface on the subject concrete had sustained due to pedestrian traffic in the 4 ½ years since 5 December 2015.
Dr Chew also accepted that pedestrian traffic will wear off the top of the surface. The higher the pedestrian traffic, the quicker the wear will be which will reduce the slip resistance value.
The evidence at trial was that this pathway has not been resurfaced since December 2015. It is evidently the case it would have been subject to significant pedestrian traffic in the 4 ½ years between the accident and Dr Chew's examination. That traffic would render it more slippery, when wet, rather than less.
I conclude that the slip resistance values for this particular section of pathway are likely to have been somewhat higher in December 2015 than May 2020. It is not possible to quantify the extent to which the slip resistance values would have been higher.
In my opinion the invitation at par 97 of the plaintiff's closing submissions to infer that Mr Jenner had his accident in the high slipperiness area as identified by Dr Chew is to engage in bootstraps reasoning. It assumes what the plaintiff is obliged to prove.

Whether there were any dips or unevenness in the surface - Issue (3)(e)

Mr Johansen was asked if there was anything about the footpaths that existed in this accommodation area in 2015 that stood out to him. He responded:
Well, again, the whole system was, you know, like level and the only one that gave anyone any trouble was where Vic went when he had his accident and for some unknown reason it just had a little dip in it because of an uneven surface and it was slippery whereas the other end it never had a problem or any other area, it just didn't have any problem and I brought that up to Bruce.
In cross‑examination Mr Mulroy was asked to look at the photograph of the particular pathway and asked if he could discern the slight dip referred to by Mr Johansen in his evidence. His response was, 'It looks pretty flat. I can't see a depression there, no.' He was asked if that that was a place where water would pool after there had been a heavy rainfall and responded, 'No, not off the top of my head I don't, no.'
The cross-examination of Mrs Mulroy on this point was as follows:[67]
Do you accept that as a proposition, that there was a slight dip in the concrete?
I don't understand what you mean by "a slight dip", I'm sorry.
Well, I mean, just a - just a sort of - a wearing down, a slight - "a slight dip" was the language that was used. Do you - where - where water might puddle?
Yes.
Do you - do you … ?
Well, water - yes, water might puddle there, yes.
[67] ts 181.
All that can be said was that Mrs Mulroy had a memory, which her husband did not, of water puddling on this particular walkway. She did not commit to the existence of a dip in the concrete. There is no empirical evidence of such a dip.

Conclusion on issue of prior complaints - Issue (3)(f)

Both Bruce and Joanne Mulroy gave evidence that since they commenced management of the roadhouse in 1997 this was the only incident of its type. They had neither experienced nor had they received any complaints about problems with the particular path being unusually slippery or hazardous either before or since (and so for some 24 years).
I accept Mrs Mulroy's evidence that each motel room was cleaned daily. Consequently, staff members would walk across the uncovered path every single day, in all weather.[68] Mrs Mulroy was asked if she was open to the possibility that Mr Jenner or others complained about slippery surfaces. She responded:[69]
if it's a slippery surface as a roadhouse owner you would actually go and investigate and see what's going on because if people complain it's - you know, you're the only people there to follow through with any complaints.
[68] ts 171.
[69] ts 193.
In my view there was no reason for Mr and Mrs Mulroy to ignore such complaints and every reason to respond to them if they had in fact occurred. I accept Mr Mulroy's evidence that a lot of times drivers such as Mr Jenner would turn up a bit later in the evening, and would be gone early in the morning.[70]
[70] ts 221.
I prefer the evidence of Mr and Mrs Mulroy to Mr Jenner on the issue of prior complaints. Given my findings on Mr Johansen's credibility generally, I give no credence to Mr Johansen's evidence of any prior complaints.

Findings of fact

There was nothing unusually, innately or uniquely slippery about the pathway where Mr Jenner fell.
When it was dry the risk of slipping was very low. When wet, the risk was, on average, low but 2 out of the 8 spots tested posed a high risk of slipping.
This was not a case where water had accumulated in an unexpected location where its presence could not reasonably have been anticipated. The relevant risk was slipping and suffering significant injury on a part of an uncovered and exposed concrete path after heavy rainfall. Both Mr Jenner, and a reasonable person in his position, exercising ordinary perception, intelligence and judgment, would have known that there had just been a downpour, that it had rained for most of the day and that the pathway was exposed to the elements so that it would still be wet.
Wet concrete is in ordinary human experience more slippery than dry concrete. The evidence is that Mr Jenner appreciated this.
There were no prior incidents of slipping on the outdoor footpath.
Mr Jenner was very familiar with the outdoor footpath both in wet and dry conditions before his fall. He had made no complaint to the Defendant about the state of the footpath or any risk it posed. Nor had anyone else.
It follows that Mr Jenner has not established that any unusual slipperiness on the concrete path caused him to fall.
This case is not one where a person has fallen inside a shop or indoor commercial premises where the surface of the floor might be expected to be dry and therefore not slippery.
There was no 'dip' or unevenness in the concrete slab where water might disproportionately pool.
There was no expert evidence concerning the slipperiness of rubber thongs compared to the work boots that Mr Jenner was wearing during his drive from Perth. Nor was there any evidence about the nature of the soles. Thongs would be plainly less substantial than work boots. I am entitled to draw upon one's ordinary life experience to conclude that one is somewhat more likely to slip if wearing thongs than a boot designed for work. But it is impossible to conclude how much greater the risk would be if one was wearing thongs.

Consequence of factual findings

Based on my findings of fact I am satisfied that a reasonable person in the position of Mr Jenner would have known:
•A dry concrete pathway is safe to walk on while wearing any type of footwear, including rubber thongs.
•A concrete pathway that is wet because of heavy rain, presents at least a moderate risk of slipping.
•That risk would be marginally greater if one was wearing rubber thongs than work boots.
•It was an unusually wet day, for the time of year, and there had just been a heavy downpour.
•There was nothing to grab hold of in the event of a slip to stop oneself from falling.
•Wet pathways do not immediately become dry after the rainfall has stopped. Surface tension will hold some water in place until it evaporates.
•To traverse the pathway safely, particularly if wearing rubber soled footwear, it would be necessary to pay attention to where one was walking and tread carefully.
These observations are all matters of common knowledge and patently obvious to any adult with experience of walking outdoors. I am satisfied that the risk of slipping and suffering significant injury on a part of an uncovered and exposed concrete path after heavy rainfall on 5 December 2015 was an obvious risk within the meaning of s 5F of the CLA. It follows that because of the operation of s 5O of the CLA, the defendant did not owe a duty of care to Mr Jenner to warn him of that obvious risk.
A slippery pathway, because it has just rained heavily, is a hazard of an ordinary character that a person walking around the roadhouse could be expected to encounter and could be expected to watch out for.

Did the defendant breach the required standard of care? What precautions should they reasonably have taken against the foreseeable risk of injury?

Even if the risk was obvious so that there was no duty to warn did the defendant nonetheless breach the required standard of care? Applying s 5B(l)(c) of the CLA what precautions should the defendant reasonably have taken against any foreseeable risk of injury and in applying s 5B(2)(c) of the CLA what was the burden of taking such precautions? Did any alleged breach of duty cause the injury to Mr Jenner?
The defendant's general common law duty of care was to prevent, insofar as was reasonably practicable, the foreseeable risk of injury or harm to Mr Jenner. I am required to ask myself whether a reasonable person in the defendant's position would have foreseen that its alleged conduct (in not guarding against an exposed pathway becoming slippery when wet) involved a risk of injury to Mr Jenner. If the answer is 'yes', then I must determine what a reasonable person would do by way of response to that risk.
This is the two-step process drawn from the seminal judgment of Mason J in Wyong Shire Council v Shirt.[71]
[71] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47.
The assessment of breach depends on the correct identification of the relevant risk of injury. Breach must be assessed prospectively and not retrospectively.[72]
[72] Roads and Traffic Authority of New South Wales v Dederer [18] (Gummow J).
The CLA applies when determining whether the defendant has breached its duty of care to Mr Jenner. Mr Jenner bears the onus of proving a breach of duty and must, therefore, prove, on the balance of probabilities, those matters set out in s 5B(1). The CLA does not modify or supplant the common law principles which determine whether a duty of care exists: Department of Housing and Works v Smith[No 2].[73]
[73] Department of Housing and Works v Smith[No 2] [2010] WASCA 25 [74] - [77] (Buss JA).
Section 5B(1) of the CLA provides:
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); 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.
Section 5B(2) of the CLA provides:
(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.
The essential questions are whether the defendant knew or ought to have known there was a danger in the condition of the pathway. Secondly, whether, in these circumstances it failed to take reasonable precautions to rectify that danger.
Foreseeability of the risk of injury and the likelihood of that risk occurring are two different things. Consequently, reference to a risk of injury as 'foreseeable' is not to be equated with any statement as to the probability or improbability of its occurrence. By implication, however, a foreseeable risk is not one that is far-fetched or fanciful.[74] As a result, the common law test for foreseeability has been described on a number of occasions as 'undemanding'.[75]
[74] Wyong [47] (Mason J).
[75] Taylor v Fisher [2018] WASCA 126 [34] (Martin CJ).
Insofar as the requirement that the 'risk of harm' be not 'insignificant', it has been recognised that this imposes a slightly more demanding standard than the common law test: Marsh v Baxter.[76]

Even if there was no duty to warn, was there a foreseeable risk of harm that was not insignificant - Issue (4)?

[76] Marsh v Baxter [2015] WASCA 169 [714] (Newnes & Murphy JA).

As a general proposition there was a foreseeable, and not insignificant, risk of a person slipping and falling on the wet pathway.
The wet pathway posed at least a medium risk to someone walking on it. The probability of suffering some physical injury for someone slipping and falling is high. Slip and fall injuries can vary from mere bruising to death.
The real issue is what a reasonable person in the particular circumstances of Mr and Mrs Mulroy ought to have done in response to that risk. In the words of s 5B of the CLA, what precautions, if any, should they have taken against the risk of harm?

What reasonable precautions, if any, should have been taken, by the defendant - Issue (5)?

Foreseeability of risk of injury is not determinative of a breach of duty of care. The duty is one of reasonable care, not whether safety could have been improved by some modification. The duty is not confined to one owed to those who are careful for their own safety, but it is relevant to take into account that plaintiffs are themselves expected to act reasonably and take care for their own safety when determining what is reasonable.[77]
[77] Sakoua v Williams [2005] NSWCA 405 [26] (Mason J) in citing Francis v Lewis [2003] NSWCA 152 ([40] - [41]).
In Smith Buss JA traced the history of the relationship between the OLA and the common law of negligence, in particular the juridical basis of an occupier's duty of care, and summarised the differing opinions expressed.[78] His Honour noted that no argument was addressed to the court in Smith as to the juridical basis of an occupier's duty of care following the enactment of the OLA. It was unnecessary to resolve the issue in Smith. However, the true position should be determined by this court in an appropriate case. The unsatisfactory state of the law, as developed by the Full Court, must not remain unresolved indefinitely.[79] The law in this regard remains unresolved. Buss JA proceeded to consider some well-established propositions concerning the notion of a 'reasonable person' and the standard of 'reasonableness' generally, under the common law of negligence. His Honour concluded that they remain relevant in considering cases of alleged breach of duty by an occupier or lessor. They are as follows:
First, the determination of what, if anything, a reasonable person in the occupier's position would have done involves an assessment of what would have been reasonable and practicable for the occupier or lessor to have done.
Secondly, this inquiry is not to be undertaken in hindsight. It is necessary to look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the particular injury.
Thirdly, contemporary standards within the community are relevant in determining what is reasonable in the circumstances of a particular case. I am entitled to have regard to contemporary standards within the community in determining what a reasonable response is. I must bear in mind the fact that reasonableness may require no response to a foreseeable risk (even if) it is significant. Put another way, the existence of a significant foreseeable risk does not, in itself, establish unreasonableness.[80]
Fourthly, reasonableness may require no response to a foreseeable risk that is not insignificant.
Fifthly, the occurrence of a foreseeable risk, that was not insignificant, does not establish unreasonableness.
[78] Smith [62].
[79] Smith [63].
[80] Smith [87], [88].
To reiterate, the defendant operated a remote roadhouse which necessarily contains expansive outdoor concrete areas which will be subject to pedestrian traffic and rainfall. There had been no complaints, I find, of the pathways being slippery prior to 5 December 2015.
An occupier's duty is to exercise reasonable care to make their premises safe for entrants exercising reasonable care for their own safety.[81]
[81] Dederer [45].
The defendant is entitled to an expectation that an entrant to the premises would use reasonable care for his own safety. Meagher JA explained this in Ratewave Pty Ltd v BJ Illingby (Macfarlan JA and Fagan J (the latter on this point) agreeing) and expressed it this way (at [54] citations omitted):
In assessing what reasonableness requires in response to a particular risk of harm, the reasonable person in the occupier's position is entitled to take into account "with due allowance for human nature, [that] a person he permits to be on his premises will use reasonable care for his own safety."
The weight to be given to that expectation is in each case a matter for factual judgment and the matters to be considered include the "obviousness of [the] risk, and the remoteness of the likelihood that other people will fail to observe and avoid it."
The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration.

In an often quoted passage, a passage from the judgment of Gleeson CJ in Jones v Bartlett[82] points out that the required standard can never be one of absolute safety. I replicate this passage in part:
[82] Jones v Bartlett (2000) 205 CLR 166 [22] - [25].
[22]In the present case, we are not concerned with a dwelling house that was dilapidated or tumble-down, or that contained negligently installed and dangerous electrical wiring. There was nothing about the premises that alerted, or should have alerted, the owners to any unusual danger. The premises were constructed in accordance with the standards prevailing at the time, and, so far as appears from the evidence, were adequately maintained.
[23]There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective.
[24]In Phillis v Daly (1988) 15 NSWLR 65 at 74 Mahoney JA said:
'There are dangers on any premises. A room may have a desk or a table. There is a danger that, if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: people do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room. And this notwithstanding that people may live without tables and that tables may be easily removed.'
[25]It is interesting, and not without relevance, to speculate about how many objects in and around an ordinary dwelling house would constitute a potential hazard to a person who behaved as carelessly as the appellant.
In my view, the risk of a person who was exercising reasonable care for his or her own safety slipping was very low. So that it cannot be said that a reasonable person in the defendant's position would have taken the identified precaution. That such an occupier might have taken that step and that that step might have avoided the accident is not determinative.
Given my conclusion that the risk was obvious so that there was no duty to warn, the question is what precautions would have been reasonable for the defendant take to guard against a person in the position of Mr Jenner slipping and suffering significant injury on a part of an uncovered and exposed concrete path after heavy rainfall?

Should the pathway have been coated with non-slip paint - Issue (5)(a)?

In essence, Mr Jenner contends that the defendant should have resurfaced or covered every concrete path around the roadhouse. The effect of the evidence of Mrs Mulroy and Mr Mulroy, which I accept, was that each pathway linked to a room was traversed on a daily basis[83] by cleaning staff and guest. In the 18 years from 1997 to 2015 there had been no complaint and neither of the Mulroys had encountered any such problem.
[83] When the room was occupied.
I disregard the evidence given by Dr Chew in the second substantive question in re-examination, relied upon in the plaintiff's closing submissions at par 101 on the basis that it was the subject of an objection that I upheld.[84]
[84] ts 159 - ts 160.
The reason for my decision not to permit Dr Chew to give the evidence that the plaintiff wished to elicit in re-examination is as follows.
The purpose of re-examination is not merely to remove ambiguities and uncertainties. Re-examination is allowed wherever an answer in cross‑examination would, unless supplemented or explained, leave the court with an impression of the facts, whether in issue or facts relating to credibility, which is capable of being construed unfavourably to the party calling the witness and which represents a distortion or incomplete account of the truth as the witness is able to present it.[85]
[85] Connell v The Queen (No 6) (1994) 12 WAR 133, 209 - 210.
In cross-examination Dr Chew was taken to his report (exhibit 12) and asked about the passage that read:
The validity of this assumption will depend on the amount of wear the surface on the subject concrete has sustained due to pedestrian traffic between the date of the accident vis 5 December 2015 and the date of the floor test being 31 May 2020.
Counsel then asked:
It's the case, isn't it, that pedestrian traffic smoothens a surface?
Dr Chew responded:
Yes, the pedestrian traffic will wear off the top of the surface over, obviously the higher the pedestrian traffic the quicker the wear will be.
Counsel asked, 'and that makes the surface more slippery?'
Dr Chew responded, 'Yes, it will reduce the slip resistance value.'
So counsel for the defendant simply contented himself with confirming from a passage of Dr Chew's report that which is fairly obvious, namely the more people that walk upon a surface the more wear on the surface there will be, and accordingly the more slippery (to an extent at least) it will become.
From that evidence counsel for the plaintiff immediately launched into the question:
You were asked about the higher the pedestrian traffic, the greater the wear, I think?
Counsel then asked:
In your experience, are you able to tell the court about any values that can be apportioned to wear and tear over time?
Dr Chew then embarked upon what was clearly a detailed and rehearsed answer, including reference to a study that was carried out at the Claremont Quarter Shopping Centre. None of the information that Dr Chew sought to provide at that stage had been discovered and it had not been led in chief. On both counts it should have been. It did not arise out of re-examination.
I accept that exhibit 17 (pages that in the plaintiff's supplementary book of documents at 137 - 145 inclusive) demonstrates that the cost of acquiring non-slip paint was relatively minimal. I accept that anti-slip coating would likely make the path even more slip-resistant. However, in the absence of a finding that this path was unusually slippery at the material time, a reasonable person in the position of the defendant would, in foresight not have a need or perceive a need to apply such measures.

Should the pathway have been covered - Issue (5)(b)?

Paragraphs 68 - 80 of the plaintiff's closing submissions come under the subheading 'roofing solutions' in terms of the precautions it is submitted it would have been reasonable for the defendant to have taken. But there is no reference in the statement of claim to any negligence in failing to install such coverings, in contrast to the failure as pleaded in relation to the lack of roof guttering, drainage and non‑slip paint. Mr Jenner's assertion in closing submissions that the defendant should have installed a roof over the footpath is not pleaded.
In cross-examination Mr Jenner was taken[86] to par 27 of his statement where he had stated:
I would like to say that I've been staying at the Mundrabilla Roadhouse for many years and all walkways used to be covered, however due to rust and wear and tear, they (coverings) were all removed and replaced but only around the immediate buildings and not the walkway areas.
[86] ts 110.
Mr Jenner said that they (coverings) were all replaced except for the ones on the walkway areas and the outside.
Mrs Mulroy accepted that the installation of a cover over the footpath was an option and that the cost as revealed by exhibits 15 and 16 was not prohibitive.[87] Mrs Mulroy accepted that there were only two small exposed areas of exposed concrete in the accommodation area[88] although there were many other uncovered areas within the complex. Mrs Mulroy accepted that at one stage all the pathways had been covered, but when the coverings rusted away they were not replaced.[89] I accept Mr and Mrs Mulroy's evidence that the expense of installing a roof over the previously covered area informed their decision not to do so when the roof was replaced in or about 2010.
[87] ts 188.
[88] ts 185.
[89] ts 185 - ts 186.
I accept that the cost of installing some form of covering over the two pathways, including the pathway Mr Jenner slipped on, would not be prohibitive. I do not accept that the type of roof coverings as exhibited in the trial would have completely protected the pathway from rain. The pathway with covering would likely have been drier than if it remained exposed. It may, therefore, have been less slippery but it is not possible to be definitive.
In any event, in the absence of a finding that this path was unusually slippery a reasonable person in the position of the defendant, for the reasons given, would, in foresight not have a need or perceive a need to cover the pathway.

Should there have been a gutter on the adjacent roof and drains at the side of the pathway - Issue (5)(c)?

Mr Mulroy characterised the pattern of rainfall in the area as one where when it did rain it would come down in 'bucket loads'.[90]
[90] ts 214.
I accept Mr and Mrs Mulroy's evidence that even when there was a roof over this path previously, it did not prevent it from becoming wet. This evidence is consistent with the photographs in exhibit 8 showing the undercover verandas at the roadhouse being wet after a downpour of rain.

So, even if there was a covering the path is likely to get wet although I accept that the wider a covering the more protection there is from rain. As I have noted, Dr Chew's report shows that the pathway was slippier when wet than when dry. His report does not, however, permit a conclusion that the wetter the path the proportionately more slippery it became.
Whilst the presence of water, in this case from rain, would cause a concrete pathway to become more slippery then if it were dry, there was no other evidence that the more water that accumulated the slippery it became as can be seen from the following passage from Ms Mulroy's evidence.[91]
Would you agree that the more water there is on a path, the more slippery it's going to be? I would presume - yes, I would presume so.
Okay. I sense hesitation. What's your hesitation, Ms Mulroy? It's just when a path is wet, it is slippery.
Yes? You know, when any path is wet, it is slippery.
Right? And that sort of stuff. If you saw a big puddle, then you probably would bypass the puddle.
Sure? But, you know what I mean
Yes, but I'm just only … ? Yes, I just - it's a strange question to answer, sorry, because I don't know whether it is more slippery or not slippery.
[91] ts 189.
Even when wet, on Dr Chew's evidence, in May 2020, 75% of the relevant area provided adequate slip resistance. Again in the absence of a finding that this path was unusually slippery a reasonable person in the position of the defendant, for the reasons given, would, in foresight not have a need or perceive a need to install guttering to an adjacent roof and/or drains to the side of the pathway. I am not satisfied that this pathway was particularly prone to the accumulation of large volumes of water when it rained.

Conclusion on whether the defendant was required to take the precautions contended for - Issue 6

Applying a perspective grounded in foresight and not hindsight, the precautions identified by Mr Jenner were not reasonable. The risk of a person slipping on this pathway was not such that a reasonable person in the defendant's position would have taken the precautions identified on behalf of Mr Jenner.
There are some cases where the reasonable response is to do nothing. Mr Jenner has not persuaded me that the reasonable response was to do any of the things contended for in the particulars of negligence.
In all the circumstances it was not a reasonable response to install drains at the side of the pathway, or guttering along the adjacent roof or to coat the pathway with a non‑slip surface. Nor (which in any event is not pleaded) was it a reasonable response to cover the pathways.

Conclusion - did the defendant breach its duty of care to Mr Jenner - Issue (7)

Accordingly the defendant did not breach its duty of care.

Did any breach of duty by the defendant cause the injury to Mr Jenner (was its fault a necessary condition of the harm?) - Issue (8)

Given my findings on the inability of Mr Jenner to establish that any of the precautions he contends for were reasonable in the circumstances the question of whether any breach of duty by the defendant caused the injury to Mr Jenner does not arise for consideration.
It is appropriate to observe that if contrary to my findings there was no obvious risk and that further it was reasonable in the circumstances to warn a person in the position of Mr Jenner of the wet and therefore slippery surface, in those circumstances it is more probable than not that such a sign would have made a difference. There was no evidence that Mr Jenner was hurrying so that he would have walked in precisely the same way without slowing down, even if there was a sign.

Voluntary assumption of the risk and contributory negligence - Issues (9) and (10)

Given my findings these issues do not arise for consideration.

Conclusion and orders

Mr Jenner has not established that the injuries he sustained on 5 December 2015 were caused by any breach of duty that the defendants owed to him, either at common law or under the OLA.
The plaintiff's claim, accordingly, is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MW
Associate to Judge Troy
18 JUNE 2021