Keven Gors by his Plenary Administrator of Janet Christine Gors v Tomlinson - [2019] WADC 88

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   KEVEN GORS by his Plenary Administrator of JANET CHRISTINE GORS -v- TOMLINSON [2019] WADC 88
CORAM:   SCOTT DCJ
HEARD:   25-26 FEBRUARY 2019
DELIVERED          :   2 JULY 2019
FILE NO/S:   CIV 3277 of 2016
BETWEEN:   KEVEN GORS by his Plenary Administrator of JANET CHRISTINE GORS
Plaintiff
AND
PHILLIP KEVIN TOMLINSON
First Defendant
JENNIFER SUSAN TOMLINSON
Second Defendant

Catchwords:

Torts - Plaintiff injured when fell through laserlite roof - Duty to warn only duty relied on by plaintiff - Whether duty to warn - Whether obvious risk

Legislation:

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

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff	:	Mr J R Brooksby
First Defendant	:	Mr G R Hancy
Second Defendant	:	Mr G R Hancy

Solicitors:

Plaintiff	:	Donna Percy & Co
First Defendant	:	Greenland Legal Pty Ltd
Second Defendant	:	Greenland Legal Pty Ltd

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

Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
Carey v Lake Macquarie City Council [2007] NSWCA 4
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Fallas v Mourlas [2006] NSWCA 32
Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Great Lakes Shire Council v Dederer [2006] NSWCA 101
Jones v Bartlett (2000) 205 CLR 166
Neindorf v Junkovic [2005] HCA 75
Nikolich v Webb [2019] WADC 58
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Streller v Albury City Council [2013] NSWCA 348
Thompson v Woolworths (Qld) Pty Ltd (2005) 79 ALJR 904
Vincent v Woolworths Ltd [2016] NSWCA 40
Waverley Council v Ferreira [2005] NSWCA 418
Wyong Shire Council v Shirt (1980) 146 CLR 40

SCOTT DCJ:

The defendants are the occupiers of a house at Barberton West Road Yathroo. On 19 August 2014, by arrangement with the defendants, the plaintiff and his brother Clifton Gors (Clifton), attended the defendants' property for the purposes of removing a Solahart hot water system (unit) from the roof of the defendants' house in order that the plaintiff could utilise some of the parts of the unit in a hot water system at the house in which he was living.
The defendants' property comprises a large farm house with a patio on the north side. The main roof of the house including the veranda is tiled (tiled roof) and is pitched at approximately 20 degrees.
The patio extends the width of the house. Over the patio there is a roof (patio roof) constructed of a laserlite polycarbonate material (laserlite panels) which is approximately 2.1 – 2.2 m above the brick paved area of the patio and is 17 m long and 2.4 m deep.
The patio roof is pitched at an angle of approximately 2 degrees and the laserlite panels are corrugated. There is a gutter (gutter) at the northern edge of the tiled roof where it meets the patio roof.
The plaintiff and Clifton arrived at the defendants' house in a utility in which there was a ladder and the plaintiff's tools. It was a sunny day. They positioned the ladder against the bargeboard on the eastern side of the house and climbed onto the tiled roof. The unit was positioned above solar panels approximately 5 m above the gutter. The plaintiff proceeded to detach the unit from the tiled roof.
The unit weighed approximately 80 kg. When the plaintiff had detached the unit from the tiled roof, the plaintiff and Clifton then lifted the unit by each of them holding one end. The end held by the plaintiff was the end closest to the ladder. Their intention was to move it by a direct route to the ladder. They moved the unit a short distance across the tiled roof and then put it down because it was heavy.
They then manoeuvred the unit towards the gutter to a position where the end being held by the plaintiff was approximately three tiles or a metre or so from the gutter. Exhibit 1 photographs 5 – 8 show the position of the unit at that time.
After putting the unit down the plaintiff stood up and without looking behind him stepped back one or two paces and fell through the patio roof to the brick paving below and suffered significant injuries.
There was no dispute between the parties that:
(a)The patio roof was non-trafficable, was unsafe to walk on and would not bear the plaintiff's weight.
(b)If the plaintiff 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.
(c)The defendants did not warn the plaintiff that the patio roof was constructed of laserlite panels and/or that it was non‑trafficable and/or it would not bear the plaintiff's weight.
(d)The second defendant was not at the defendants' property at any time when the plaintiff and Clifton were present.

Evidence

The plaintiff was unable to give evidence due to his injuries. For the plaintiff evidence was given by Clifton. In addition, there was a book of 48 agreed photographs (exhibit 1) which were tendered.
For the defendants evidence was given by the first defendant in addition to which two discs depicting the defendants' property (exhibits 2.1 and 2.2) were tendered.

Evidence of Clifton Gors

He said that the plaintiff and the defendants were neighbouring farmers. He had been to the defendants' property with his brother on two or three occasions prior to 19 August 2014. Access into the defendants' house was via the patio and on the occasions he went with his brother to the house they parked their car at the top of the driveway at the eastern side of the house.
He said he recalled his brother quite some time before the fall telling him that he was going to get a hot water system from the first defendant. On the day of the incident his brother asked him to help him do that.
At about 8.00 am they drove to the defendants' property. The weather was reasonably sunny. When they arrived at the property the first defendant came out of the house. In cross‑examination he denied that when they were driving towards the house the first defendant was driving the other way, they stopped to have a chat with him, they then continued on towards the house and arrived there before the first defendant. He said they parked their vehicle at the top of the driveway and as they were walking towards the house the first defendant came out of the house and met them. The first defendant was there when they placed the ladder against the tiled roof and before they went onto the roof.
He said that he and his brother had not had any discussion as to how they were going to remove the unit. He said they would have gained access to the roof and then decided how they were going to go about it. They placed the ladder on the end of the veranda of the tiled roof and climbed onto the roof. He was referred to photograph 14 and said the ladder was placed against the edge of the tiled roof of the veranda. He agreed that the edge of the ladder is shown in photograph 1 to be against the last pole. He and his brother examined the unit. He said it was a straight job for his brother, who was the one with the tools, to disconnect the pipes attached to the unit. The unit was above the solar panels (shown in photograph 6) about 5 m up the tiled roof from the gutter.
He said that as his brother was proceeding to unbolt the unit from the tiled roof he (Clifton) went down the tiled roof where he noticed there were leaves in the gutter. He called down to the first defendant who was then standing on a retaining wall which was about half a metre high to the north of the patio. He asked the first defendant if he wanted the gutter cleaned out and said that he would clean it if the first defendant threw him a bucket, which the first defendant did. He started to empty the gutter with his hands. At that time he said he was on the tiled roof about 2 feet from the gutter.
He said he had noticed cracked tiles on the roof and said to the first defendant that if he had some new ones they would replace them for him.
When his brother had finished unbolting the unit he went up to where his brother was and they discussed lifting the tank. He did not finish cleaning the gutter. He then saw liquid running down the tiled roof into the gutter. He called out to the first defendant and said that he ought to disconnect his downpipe into his rainwater tank and the first defendant did so. In his evidence the first defendant said that Clifton may have said that and he did not dispute it but he did not recall it and did not recall disconnecting his water tank. In my view nothing in this case turns on this matter.
He said that after he called out to the first defendant and told him that if he had some new tiles he and his brother would replace them for the cracked tiles, the first defendant left to go to the shed to get, he assumed, new tiles. The first defendant did not then return until after his brother had fallen.
He said that when they went onto the roof his brother and he intended to carry the unit in a direct line to the ladder. When his brother told him that they were ready to shift the unit he lifted one end of the unit and his brother lifted the other end. The end his brother lifted was the end nearest the ladder. They commenced walking the unit across the tiled roof at a downward angle towards the ladder with him walking forward and his brother walking backwards. He said he thought the unit weighed about 80 kg. It was an uneven surface and they took short, careful steps. His brother was checking to his left and right as he was walking backwards. They were both holding their end of the unit at about groin height with straight arms. They then put the unit down so they could have a rest.
They then lifted it a second time and walked it to where they put it down in the position the unit was shown in the photographs (eg, photograph 6), angled towards the gutter with the end being carried by the plaintiff being about three tiles from the gutter. He said they put it down to let fluid in the unit drain into the gutter. When they put the unit down, they both stood up looking at one another. His brother took two steps back, stepped on the patio roof and fell through it to the paved patio below.
He said when he first climbed on the roof the patio roof looked like Colorbond to him.
In cross-examination he said that he had been a farmer since 1981 when he left school. The plaintiff had been a farmer three years longer than he had. His brother was also a qualified mechanic. He said that he had been to the house in which his brother lived a couple of times a year. He had swum in the pool which was underneath a canopy roof (canopy roof) (photographs 30 ‑ 37) which was constructed of material which allowed light in. He knew that the canopy roof was laserlite material which he knew was different from Colorbond. He agreed that he had seen the canopy roof from below and could see a difference between the tin/corrugated iron roof of his brother's house and the canopy roof the light came through. He knew that the material over the pool was laserlite sheeting and that his brother had installed it when he did renovations on the house. He thought that the canopy roof was installed by his brother in about 2005.
Before the day of his brother's fall there was nothing which had indicated to him that the laserlite material at his brother's house was material he could walk on. He said he had never handled the product nor used it personally but no one had ever said anything to him or given him any information to indicate he could walk on laserlite roofing.
At the defendants' house when he had been there, he agreed that he had walked into the house from the north side. It was put to him that when he had previously walked under the veranda/patio area, there was a clear difference between the roofing material above the veranda and the patio roof because one was tiles and one was laserlite. He said he had had no reason to look at the roof and did not take any notice.
He was referred to photographs 1, 23 and 24 and agreed that although these photographs were taken in October 2018 the difference in light and colour in the areas under the tiled veranda area compared with the patio roof was dramatic and that was the way it was on the day he and his brother went there.
He was then referred to photographs 44 - 48 and agreed that there was a dramatic colour difference between the view of the roof over the tiled veranda area contrasted with the laserlite sheeting over the patio area. He agreed that was how the area was to him on those two or three occasions he went there prior to his brother's fall. He was referred to photographs 5 - 9 and agreed that the tiled roof and the patio roof was what he saw that day.
He agreed that photographs 23 and 24 showed the perspective facing him and his brother when they approached the house with the ladder. He said that they put the ladder up at the end of the house. He said he took no notice of what was under the patio or the veranda and he had no reason to see what the material was over the patio because they were not going to work on that section of the roof - they were going to work on the tiled section.
He said that he saw the tiled roof and gutter when climbing the ladder. He and his brother went straight to where the unit was. His brother was the one who determined what was to be done to unbolt the unit. There was nothing for him to do until that job was done so he went back down the tiled roof towards the gutter.
From the time he spoke to the first defendant about cleaning the gutter to the point when he realised his brother had unbolted the unit he and his brother had said nothing to each other about doing anything on the patio roof. His brother in that time never came near the gutter. They had no intention of doing anything on the patio roof.
He agreed that if one drew a straight line from where they put the top of the ladder to the point where the unit was located it was totally on the tiled roof. He agreed that neither of them said anything to the first defendant while he was watching them to suggest that he or his brother might go onto the patio roof.
He first saw there were cracked roof tiles when he was first at the unit with his brother. Those cracked tiles were where the unit was. That was before he went down the roof towards the gutter. He said that before he offered to clean the gutter both he and the plaintiff were at the unit and that was where the broken tiles were. He said that was when he would have said something about the broken tiles to the first defendant. He said that he said it, not the plaintiff.
There was no need to have any discussion with his brother about how they would remove the unit. It was obvious. His brother would unbolt the unit and then the two of them would carry the unit straight back to the ladder over the tiled roof. There was at no time any discussion with the first defendant to ask him what he thought. The first defendant did not have any input as to how the unit was going to be carried or where they were going to carry it. When his brother had unbolted the unit, he said he went back up the roof to where his brother was. By that time the first defendant had left to get new tiles.
He and the plaintiff picked up the unit and headed in the direction of the ladder and while they were carrying it, it was leaking. They put the unit down because it was heavy. At that time they were still headed in the direction of the ladder. They then had a conversation to take the unit down towards the gutter which meant deviating from the straight line towards the ladder. It never entered his mind to think of stopping until the first defendant came back to ask what he thought and nothing his brother said indicated to him that it had entered his mind either.
The decision to change direction towards the gutter was made when they put the unit down the first time at which time he was carrying the higher end and the plaintiff the lower end and they were facing each other. The plaintiff was walking backwards, looking to his left and right about 90 degrees each side. He said that when they put it down the second time they both stood up, the plaintiff had his back to the edge of the tiled roof and the gutter when he stood up. From standing up to the time of his fall was very quick. The plaintiff was not looking in the direction he was stepping.

Phillip Tomlinson

He had known the plaintiff for several years. He went to the plaintiff's house and the plaintiff came to their house probably once a month over that period.
He saw the work at the plaintiff's house where a roof was built over the pool and had been under that extension numerous times. Part of the roof let light through and other parts did not.
On the occasions the plaintiff came to his house before the fall he (the plaintiff) would normally park his car at the eastern end and walk to the back door through the patio. The plastic sheeting over the patio was Alsynite or laserlite. It was not fibre glass. On all of the occasions the plaintiff came to his house the patio area had the patio roof above it.
About 18 months before the plaintiff's fall he was at the plaintiff's home when he noticed water leaking out of the plaintiff's hot water system on the roof. He told the plaintiff that he had decommissioned a tank on his roof and the plaintiff was welcome to have it. It was not discussed again before the day of the fall. On the morning of the fall the plaintiff rang and said his brother was up and he was going to come over and get the tank from the defendants' roof.
He decided to get his front end loader with forks on the front to help move the unit because that was the way the unit was put up on the roof in the first place. He was in his vehicle driving up to the shed to get the front end loader when the plaintiff and his brother drove in the front gate towards the eastern side of the house. He stopped and the plaintiff yelled out something to him. The plaintiff's ute kept going. He turned his vehicle around and by the time he got to the house the plaintiff and his brother were already on the roof.
Before the plaintiff stepped onto and fell through the patio roof he did not hear or see anything that led him to think that there was a possibility that the plaintiff might step on the patio roof.
In cross-examination he was referred to his signed statement which he made with an assessor on 1 July 2015 (statement) about 10 or 11 months after the incident. He agreed he said in that statement Clifton had noticed leaves in the gutter but now did not recall any conversation about Clifton removing the leaves. He said, from the statement he went and got a bucket apparently but could not now remember doing that. He agreed that after this time and the trauma of the incident he has had a problem remembering some of the details.
In his statement he agreed that he said 'I told Cliff not to step onto the patio roof - as it was plastic, when he was cleaning out the gutters'. He said that was obviously what he said to the assessor but he did not now recall it. I note in the defence and amended defence it was pleaded that he said that to Clifton. That was resiled from in the further amended defence and it is the position of both parties that no such warning was made. It was put to the first defendant in cross‑examination that he told the assessor he had given a warning about stepping on the roof because he was concerned about his insurance cover if he had not. He denied that and said he would not have lied in his statement. The inconsistency goes to the credit of the first defendant. I note however that the statement was made more than 10 months after the incident and the first defendant admitted that he had a problem remembering some details given the trauma of the incident.

He agreed that the patio roof was some sort of plastic sheeting polycarbonate material, he knew that to be the case then and knew that you did not stand on that type of roof. When it was put to him that he saw Clifford on the tiled roof but did not issue any warning he responded 'why would I?'.
He said when the plaintiff was undoing the unit the plaintiff said he noticed there were a couple of cracked tiles and said 'while I'm here if you've got the tiles I'll put the new tiles on'. He said he then left to go to the shed to get new tiles.
He agreed that he watched the plaintiff and Clifton whilst standing on a retaining wall from which he could see the roof. Originally it was his intention to use the forks of the loader to take the unit off the roof but he did not get his loader. When the unit was getting moved, he was not sure how it was going to be lowered down. He agreed that the movement of the unit was a two man job and it would not be easy to manoeuvre it on the roof.

Second defendant not present

It is common ground that the second defendant was not present at any time that the plaintiff and Clifton were at the defendants' property. The claim against her must be dismissed.

Relevant findings of fact

The majority of facts are not in dispute. Relevant to the issues which fall for determination I find the following:
(a)I consider that both Clifton and the first defendant gave evidence in a truthful manner. The plaintiff's fall was unexpected and inevitably had a significant traumatic impact on both of them such that it is understandable that some details of what happened and in what order would likely to be hazy in their respective recollections.
(b)The plaintiff was a qualified mechanic and had been a farmer since about 1978. He had been a neighbour of the defendants for several years and during that time he had visited the defendants' house about once a month. When the plaintiff came to the defendants' house he would normally park his car at the eastern end on the driveway and walk to the back door through the patio under the patio roof. I am satisfied that before he came to the defendants' property on the day of his fall the plaintiff could not have been unaware that the patio roof was translucent and that it was constructed of a material the same as or similar to material of which the canopy roof was constructed.
(c)The plaintiff had constructed the canopy roof at his home in about 2005. Photographs 30 - 37 depict the canopy roof from above and below.
(d)The intention of the plaintiff and Clifton when they climbed on the tiled roof was to walk directly from the ladder across the tiled roof to the unit, the plaintiff would unbolt the unit and they would walk the unit back across the tiled roof in a direct line to the location of the ladder.
(e)Neither Clifton nor his brother ever intended doing anything on the patio roof.
(f)The cracked tiles which the plaintiff or Clifton said they would replace were in the immediate proximity of the unit. There is no need for me to make a positive finding as to whether it was the plaintiff or Clifton who called out to the first defendant.
(g)There was at no time any discussion between the plaintiff and/or Clifton with the first defendant in which the first defendant was asked for his input as to how the unit was going to be carried by them or where or how they were going to carry it.
(h)Before the plaintiff and Clifton lifted the unit from the location where it was bolted to the tiled roof the first defendant had already left to get new tiles and did not return until after the plaintiff had fallen.
(i)Clifton did not finish cleaning the gutter. His brother finished unbolting the unit and he went up to the roof to give his brother a hand.
(j)Clifton and the plaintiff picked up the unit and headed in the direction of the ladder. They put the unit down because it was heavy at which time they were still headed directly towards the ladder.
(k)They then had a conversation to take the unit down towards the gutter which meant deviating from the straight line towards the ladder.
(l)The plaintiff was walking backwards looking to his left and right, they put the unit down, they both stood up, Clifton was looking at the plaintiff who was looking at him, the plaintiff took two steps back without looking, stepped on the patio roof and fell through it to the paved patio below.
(m)As to Clifton's evidence that when he climbed on the roof he thought the patio roof looked just like Colorbond to him, 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.

Plaintiff's case

The plaintiff's case is that:
1.
(a)It is common ground that laserlite panels would not bear the plaintiff's weight if he stood on the patio roof.
(b)The scope of works actually being carried out by the plaintiff and Clifton when they were on the roof was, in addition to the removal of the unit, extended to include:
(a)the removal of leaves from the gutter; and
(b)the removal and replacement of tiles on various places on the roof,
both of which activities would have brought either or both of the plaintiff and Clifton close to the gutter.
(c)It was foreseeable that the plaintiff in carrying out the works on the roof of the defendants' house may walk on or place his weight on the patio roof resulting in him falling through it and sustaining serious injury (risk).
(d)The risk was not insignificant and the reasonable response was for the defendants to warn the plaintiff of the risk.
2.Further or in the alternative the defendants owed the plaintiff a duty of care as occupiers of the premises pursuant to s 5 of the Occupiers Liability Act 1985 (OLA) by reason of the fact that the presence of the laserlite panels constituted a danger within the meaning of s 5 of that Act. The particulars of the breach of statutory duty pursuant to the OLA being co‑extensive with the breach of duty referred to above.
3.Even if the risk was an obvious risk the defendants would need to establish that the plaintiff consented to run that risk.
In the plaintiff's written and oral submissions at trial counsel conceded that the scope of the defendants' duty of care to the plaintiff was limited to warning the plaintiff of the risk and it was upon that issue that the plaintiff's case would turn.

Defendants' case

The defendants' pleaded case and at trial can be conveniently summarised as follows:
1.
(a)The patio roof was made of thin laserlite polycarbonate panels with rectangular ribs, it was coloured salmon pink, it was translucent, it was built as a roof over and to allow light into the patio area and not as a surface to walk on.
(b)Before the date of the accident the plaintiff had visited the defendants' house a number of times and had walked underneath the patio roof to enter the house and must have seen the patio roof and that it was translucent laserlite.
(c)The task of removing the unit from the tiled roof did not require the plaintiff or Clifton to step or walk on the patio roof, they did not plan or intend to do so and the first defendant had no reason to expect or foresee that they would do so.
(d)The plaintiff and Clifton devised and implemented the system of work to remove the unit from the roof. The system of work was outside the control of the defendants.
(e)The conduct of the plaintiff and Clifton and the plaintiff's subsequent fall arose from a decision they made when they were on the tiled roof of the house, and when neither defendant was present, to deviate from carrying the unit by a straight route from its original location to the edge of the veranda roof where the ladder had been placed which decision and consequent conduct and fall were not foreseeable by the defendants.
3.A prior warning would not have caused the plaintiff not to step on the patio roof. The plaintiff's fall was an unanticipated accident. To that end:
(a)There was no evidence that the plaintiff thought that the laserlite was safe to walk on and no evidence that he would not have stepped back if he had been told it was not safe to walk on.
(b)The risk of falling through the patio roof was an obvious risk because it was a roof and the plaintiff knew its composition to be laserlite or alternatively did not know and a reasonable person would not have concluded that it was a surface to step or walk on.
(c)The plaintiff stopped with his back to the edge of the veranda roof and did not look where he was going when he stepped backwards and onto the patio roof.
4.As to the claim pursuant to the OLA the defendants:
(a)deny that the laserlite panels were a danger;
(b)say that the obvious function of the panels was as a roof over the patio and not as a surface to step or walk on;
(c)say that there was no need or expectation for anyone to step or walk on the panels;
(d)say that any danger to the plaintiff was the method implemented by the plaintiff and Clifton to carry the unit from the roof, which method was outside the control of the defendants.
5.In addition the defendants say that the plaintiff's injury resulted from an obvious risk to which the provisions of s 5E, s 5F, s 5M, s 5N and s 5O of the Civil Liability Act 2002 (CLA) apply. The risk of fall from stepping backwards without looking where one is going while at height or walking on a roof that was not established and known to be safe to walk on was an obvious risk. By reason of s 5O of the CLA the defendants did not owe a duty of care to the plaintiff to warn him about that risk.

Scope of works

Relevant to the matters the subject of the plaintiff's claim I do not consider that the scope of works in which the plaintiff and Clifton were involved were extended in the manner contended by counsel for the plaintiff.
The removal of the leaves from the gutter was a task which Clifton offered to undertake because he had nothing to do until the unit was unbolted from the roof by the plaintiff. When the first defendant was present the plaintiff was on the tiled roof where the unit was located. There was no indication to the first defendant that the plaintiff would participate in the removal of leaves.
The cracked tiles to which reference was made whether by the plaintiff or Clifton to the first defendant were the tiles in the immediate proximity of the unit. There was no indication from the plaintiff or Clifton to the first defendant that what they intended was to replace cracked tiles on the roof generally which might take either of them near the patio roof.

Issues to be determined

1.Did the defendants owe a duty of care to the plaintiff?
2.Was the risk to the plaintiff if he stepped onto the patio roof which would not hold his weight resulting in him falling and sustaining serious injury an obvious risk and if so did the defendants owe the plaintiff a duty to warn him of the risk given pt 1A div 6 of the CLA?
3.If the risk was not an obvious risk, did the defendants owe the plaintiff a duty to warn him that the patio roof was constructed of laserlite panels and that if he stepped onto them they would not hold his weight and he could fall and sustain serious injury?
4.If the defendants breached the duty of care owed to the plaintiff by failing to warn him of the risk, did that breach cause the injury to him? That is, was the first defendant's fault a necessary condition of the harm to the plaintiff and if so, should his liability extend to the plaintiff's injury?
5.Contributory negligence.

Duty of care

The duty of care of an occupier to an entrant is governed by s 5(1) of the OLA. Relevantly, that duty is to exercise reasonable care to avoid risks of physical injury to the plaintiff by reason of any danger due to the state of the premises or to anything done or omitted to be done on them.
The duty only arises for a 'danger', that is, relevantly, a condition that presents a foreseeable risk of injury: Neindorf v Junkovic [2005] HCA 75. In this case, the plaintiff says that the condition of the defendants' house that presented a danger was the patio roof which would not bear the weight of the plaintiff thereby presenting a foreseeable risk of injury if the plaintiff stood on it. I accept that to be the relevant danger.

The scope of the duty of care

Identifying the nature of the risk of harm and that such risk was within the defendants' duty of care to the plaintiff as being a foreseeable risk does not in turn identify the scope of the duty: Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128 [14].
In determining whether an occupier has discharged the duty of care the provisions of s 5(4) of the OLA and s 5B(2) of the CLA set out factors to be considered when determining liability. There has been to date tension as to the application of these two provisions as they apply to a claim against an occupier. That tension is yet to be resolved by the Court of Appeal in this State: Department of Housing and Works v Smith [No 2] [2010] WASCA 25 (Pullin JA) [19], [63], (Buss JA) [85]. The criteria in s 5(1) and s 5(4) of the OLA must be read with s 5B of the CLA: Department of Housing and Works v Smith [No 2] (Buss JA) [85].
The duty of care owed by an occupier is one of reasonable care: Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 (Kirby J) 480; Jones v Bartlett (2000) 205 CLR 166. At common law the court is required to identify what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk: Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, 192. That is what the court must do pursuant to s 5B(1) of the CLA: Waverley Council v Ferreira [2005] NSWCA 418 where Ipp JA (with whom both Spigelman CJ and Tobias JA agreed) observed that s 5B(1) and s 5B(2) of the Civil Liability Act 2002 (NSW) (which are in similar terms to the same sections in the CLA) reflect the common law principles and the matters set out in s 5B(2) are in substance reiteration of Mason J's remarks in Wyong Shire Council v Shirt (1980) 146 CLR 40, 47 ‑ 48. See Ipp JA at [27] and [45]. See also Department of Housing and Works v Smith [No 2] (Buss JA) [87] - [88].
Reasonable care is to be assessed prospectively and not by applying the benefit of hindsight: Jones v Bartlett (20); Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 [18], [65] and [66]. The general principle of common law applies to claims pursuant to the CLA: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 [31].
The obviousness of the risk of the plaintiff standing on the patio roof which would not bear his weight and falling through it is relevant to the reasonableness of a reasonable person's response to the risk involved: Thompson v Woolworths (Qld) Pty Ltd (2005) 79 ALJR 904 [36].
In this case, the scope of the duty said to be owed by the defendants to the plaintiff is confined to the duty to warn the plaintiff of the risk of harm the subject of the duty. In considering the scope of that duty the provisions of pt 1A div 6 of the CLA apply. Given that the duty relied on is confined in this way it is appropriate to first consider div 6.
The relevant provisions in div 6 of the CLA are:
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.
Division 6 - Assumption of risk
…
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.
In construing these provisions counsel for the plaintiff relied to a significant extent on the judgment of McClellan CJ in Carey v Lake Macquarie City Council [2007] NSWCA 4 in submitting that div 6 pertains to the common law defence of volenti non fit injura (volenti) or assumption of risk which would require the defendant to establish that the plaintiff voluntarily accepted the obvious risk of which s 5N of the CLA may deem him to be aware.
In my view the reliance by the plaintiff in this case on the decision of McClellan CJ in Carey is misconceived. There his Honour was dealing with the defence of volenti where the elements described by his Honour which must be proved by the defendant were:
1.that the plaintiff perceived the existence of the danger;
2.that he or she fully appreciated it;
3.that he or she freely and voluntarily agreed to accept the risk.
In this case, the defendant does not plead volenti and does not bear the burden of proving the elements to which McClellan CJ referred to in Carey.
To that end, I respectively agree with and adopt the observations made by Judge Quail in Nikolich v Webb [2019] WADC 58.
In that case his Honour said:
60.Although s 5O is within div 6 of the CLA and the heading of the division 'Assumption of risk' must be read as part of the Act, the 'primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of the provisions of the statute'.
61.Ms Nikolich submitted that the division heading has a 'controlling effect on what follows'. That is not a correct statement of the law as 'where the enacting words are clear and unambiguous, the title, or headings, must give way, and full effect must be given to the enactment'.
62.The scheme of the CLA is that it does not provide a general statement of the circumstances where a duty of care arises between a plaintiff and defendant. Although div 2 is headed 'Duty of care', it deals not with the existence of a duty but rather the issue of breach of duty. The heading is thus not a reliable guide to understanding the scope of the sections within it and is 'apt to mislead'.
63.The clear and unambiguous words of s 5O are that 'a person … does not owe a duty of care to another person … to warn' (emphasis added). In my opinion those words can only be a reference to the scope of the duty of care that a defendant owes to a plaintiff.
64.Generally, the common law will determine whether a duty of care exists. What the CLA does do though is deny the existence of a duty of care in s 5O (No duty to warn of obvious risk), s 5I (No liability for recreational activity where risk warning) and s 5S (Mental Harm: duty of care). Section 5W (Principles concerning resources, responsibilities etc of public body or officer) and s 5Z (Special protection for road authorities) deal with whether a duty of care is owed or breached in particular circumstances.
65.Although the effect of s 5O has not been considered determinatively in Western Australia, Ms Nikolich relied on the decision of McClellan CJ at CL in Carey v Lake Macquarie City Council. His Honour said in relation to identical provisions in the Civil Liability Act 2002 (NSW) that they only operated to relieve a defendant of a duty to warn of obvious risk in cases of assumed risk. His Honour's interpretation was that the division heading in the Act and consideration of extrinsic materials suggested that the purpose of the 'obvious risk' provisions was to inform the common law defence of voluntary assumption of risk. The other members of the court in Carey, McColl JA and McDougall J, did not join in McClellan CJ at CL's judgment on this issue as the case had not been argued on that basis.
66.Subsequent to Carey, McColl JA briefly revisited the question in the NSW Court of Appeal in Schultz v McCormack. His Honour said (footnotes removed):
A finding of obvious risk under s 5F, however, does not have that effect. It merely eliminates that part of a defendant's duty of care which involves warning of such a risk. There is a view that, because s 5H cuts across the scope of the duty of care, logically it should be addressed after considering whether any such duty exists and its prima facie scope and before considering breach. The appellant did not complain about the order in which the primary judge addressed the issues and I will not take the issue further.
67.The 'view' McColl JA referred to was that of Beech-Jones J in Collins v Clarence Valley Council (No 3) who said that:
Section 5H provides that a 'person…does not owe a duty of care to …warn of an obvious risk'. So expressed, it cuts across the scope of the duty. Logically it should be addressed after considering whether any such duty exists and its prima facie scope and before considering breach.
68.Although in Schultz McColl JA could not be said to have formed a concluded view on whether a duty to warn should be considered before breach, the NSW Court of Appeal endorsed that approach in Action Paintball Games Pty Ltd (in liq) v Barker. His Honour did find though that where an obvious risk exists, the duty is 'eliminated'.
69.More recently, Basten JA with whom McColl JA agreed, said in Kempsey Shire Council v Five Star Medical Centre Pty Ltd that the equivalent section to s 5O in the CLA (NSW) had changed the law and 'removes any duty to warn of an obvious risk'.
70.I respectfully agree with the approach in Collins, Schultz, Kempsey Shire Council and Action PaintballGames Pty Ltd (in liq). Section 5O of the CLA changes the common law in that it provides expressly that a defendant does not owe a duty of care to a plaintiff to warn of an obvious risk. Notwithstanding that the section is within the division relating to assumption of risk it operates more broadly and affects the nature of the duty of care that is owed. Therefore logically it should be addressed after consideration of the existence of duty and its scope and before considering breach. Section 5O only relates to a duty of care to warn and does not otherwise affect the scope of duty.

In considering whether the risk was an obvious risk the provisions of the CLA referred to above are the matters about which a determination is required to be made. In the event that I am satisfied that the risk to the plaintiff was an obvious risk having regard to s 5F and s 5N of the CLA, pursuant to s 5O the defendants did not then owe a duty of care to warn the plaintiff and the plaintiff's claim must fail.

Was the risk to the plaintiff an obvious risk for the purposes of s 5O CLA?

In this regard:
(a)whether the risk was an obvious risk is an objective determination (s 5F);
(b)the plaintiff is presumed to have been aware of the risk of harm if it was an obvious risk, unless he proves on the balance of probabilities that he was not aware of the risk (s 5N).
In considering whether the risk was one that in all of the circumstances would have been obvious to a reasonable person in the position of the plaintiff, the question which must be asked is whether the conduct of the plaintiff involved risk of harm that would have been obvious to a reasonable person in his position. The person in the position of the plaintiff would be a person who comprehended the particular circumstances in which the risk materialised and the harm was suffered and will include the plaintiff's knowledge and experience of the relevant area and conditions: Streller v Albury City Council [2013] NSWCA 348; Fallas v Mourlas [2006] NSWCA 32 (Ipp, Basten and Tobias JJA); Great Lakes Shire Council v Dederer [2006] NSWCA 101 [151] - [152].
Since the test is objective, it is not the plaintiff's state of mind that is determinative, but what a reasonable person in his position would regard as obvious. Even so, the plaintiff's actual knowledge is relevant to the assessment of what a reasonable person would know about the risk: Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482 (60). How the plaintiff acquired that knowledge may assist in the determination of the forward looking enquiry as to whether the risk would have been obvious to a reasonable person in his position.
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.
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.
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.
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.
In the premises by pursuant to s 5O of the CLA the defendants did not owe a duty of care to the plaintiff to warn of the risk.
Counsel for the plaintiff conceded that in the event that I found that the defendants had no duty of care to warn the plaintiff, then the plaintiff's claim must fail.

If the risk was not an obvious risk pursuant to div 6 of the CLA did the defendants owe the plaintiff a duty to warn him of the risk?

For completeness, if I am wrong in my finding that pursuant to div 6 of the CLA the risk was an obvious risk, I will consider whether the defendants owed a duty to warn the plaintiff pursuant to the OLA and CLA.
To this end consideration is to be given to s 5(4) of the OLA and s 5B(1) and s 5B(2) of the CLA. Those provisions are as follows:
OLA:
5.Duty of care of occupier
...
(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.
CLA:
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.
Counsel for the plaintiff submitted that there is no real difference between the obligations imposed by the OLA and CLA and the duty of care applicable at common law citing Vincent v Woolworths Ltd [2016] NSWCA 40.
To that end counsel submits that when determining the liability of an occupier the relevant considerations are whether having regard to the circumstances of the entry on the premises the risk of injury is foreseeable and, if so, what a reasonable occupier would do under the circumstances in response to such a risk and that those principles remain coextensive with the principles set out in Wyong v Shirt in which Mason J said:
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far‑fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.
Counsel for the plaintiff submits that having regard to the proximity of the laserlite patio roof to the point at which the unit was located that the risk to the plaintiff stepping onto the patio roof constructed of laserlite panels which would not hold his weight resulting in him falling and sustaining serious injury was in all of the circumstances a foreseeable and not insignificant risk. A reasonable response would have been to warn the plaintiff that the patio roof was constructed of laserlite panels and under no circumstances should the plaintiff or Clifton step on it during the course of their activities on the roof.
Counsel submitted that a reasonable person in the position of the first defendant should have foreseen that it was possible that the plaintiff and/or Clifton could walk adjacent to and over the gutter and be unaware when they did so what surface they were standing on.
Counsel further submitted that the first defendant admitted that the patio roof was non-trafficable, it was unsafe to walk on and would not bear the plaintiff's weight and that if the plaintiff placed his weight on the patio roof, it was foreseeable that the laserlite panels would fracture and he would fall through them and be likely to sustain significant injuries.
Counsel contended that it was foreseeable that at some stage the unit, weighing 80 kg or so, was going to be placed by the plaintiff and Clifton near the ladder which was in close proximity to the patio roof pending its removal. As such it was foreseeable that completing the task of removing the unit may involve the plaintiff potentially stepping onto the patio roof and falling through it thereby suffering serious injury.
OLA s 5(4) sets out the matters referrable to the scope of the defendants' duty of care in respect of which counsel for the defendants submits as follows.

Gravity and likelihood of probable injury

(a)From the perspective of the defendants they had no reason to regard the patio roof as a danger to the plaintiff. The plaintiff had no reason to and was not expected by them to go anywhere near it. The first defendant reasonably expected that the plaintiff and Clifton would carry the unit directly to the position of the ladder across the roof tiles. That was in fact the initial intention of the plaintiff and Clifton when the first defendant was present. The first defendant had already left to get new tiles before the plaintiff and Clifton picked up the unit and did not return until after the plaintiff had fallen. As such the defendants had no reason to regard the patio roof as presenting a danger to the plaintiff. The defendants did not know how the plaintiff and Clifton planned to carry the unit. Neither defendant was present when there was a change of plan on the part of the plaintiff and Clifton to change the direction across the tiled roof.
(b)The defendants had no reason to foresee that the plaintiff and Clifton might decide to carry and did carry the unit to the patio roof edge of the tiled roof with the plaintiff walking backwards.
(c)Neither defendant had any reason to foresee that the plaintiff would step on and fall through the patio roof.

Circumstances of entry onto the premises

The plaintiff's entry was for the express purpose of removing the unit. The plaintiff was responsible for the system of work, he had training in mechanics and was experienced in working at heights having constructed the canopy roof.

Nature of premises

The premises comprised a farmhouse in a rural location having a tiled roof over the house and veranda and a patio roof constructed of laserlite or a material similar to it.

Knowledge of persons being on the property

The first defendant knew but the second defendant did not know that the plaintiff was on the roof.

Age of entrant

The plaintiff was a 53 year old adult.

Ability to appreciate the danger

The plaintiff had the ability to appreciate the danger of working at height and had Clifton with him who was engaged in the same activity. The danger of the patio roof was obvious and the plaintiff had no reason to think that it was safe to step onto it. The plaintiff knew about laserlite type roofing material and that the patio roof was made from material that was different from the house tiles.

Burden of eliminating danger

From the defendants' perspective the patio roof was not a danger to the plaintiff and there was no reason to anticipate that he might step on it. Although a warning could have been given regarding the laserlite roof there was no reason why it should have been given to the plaintiff.

As to s 5B(1) and s 5B(2) of the CLA counsel for the defendants submits that having regard to the matters referred to in [87]:
(a)The defendants had no reason to regard the risk of injury to the plaintiff as foreseeable and not insignificant.
(b)The defendants had no reason to foresee that the plaintiff might step on the patio roof.
(c)There was no reason for the defendants to give a warning.
(d)A warning was not burdensome however there was no reason for a reasonable occupier to give a warning in all of the circumstances.
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.

Causation - whether the failure by the first defendant to warn the plaintiff of the risk caused the injury to him?

In the event that I am wrong in my findings that the defendants did not have a duty to warn the plaintiff I will deal with the matter of causation. To this end two matters require consideration pursuant to s 5C(1) of the CCA namely:
(a)whether the first defendant's failure to warn was a necessary condition of the occurrence of the harm; and
(b)whether it is appropriate for the scope of his liability to extend to the plaintiff's injury.
Determining whether the defendants' failure to warn was a necessary condition of the occurrence of the injury to the plaintiff requires the 'but for' test. That is whether it was more probable than not that the plaintiff's injury would not have occurred but for the failure by the defendants to warn the plaintiff of the risk: Adeels v Moubarak [42] ‑ [45].
Pursuant to s 5D of the CLA in determining liability for damages for harm caused by the fault of a person the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
In this case the injury to the plaintiff occurred when the plaintiff and Clifton had successfully carried the unit from where it was unbolted by the plaintiff to the position shown in photographs 5 - 8. That is a distance of approximately three tiles from the gutter.
The evidence of Clifton was that they put the unit down, they both stood up, they were looking at each other and then without looking behind him the plaintiff took one or two steps back falling through the patio roof to the patio below thereby suffering serious injury. Clifton said that between putting the unit down and the plaintiff's fall was very quick. There was no evidence from Clifton as to the precise manner in which the plaintiff fell. For example whether or not he was balanced when he stepped back onto the patio roof.
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.
As to whether it is appropriate for the first defendant's liability to nonetheless extend to the plaintiff's injury I would need to be satisfied that this is an exceptional case where responsibility for the harm suffered by the plaintiff should be imposed on the defendants notwithstanding that the defendants owed no duty of care to warn the plaintiff of the risk in the circumstances I have described.

I am not satisfied that in the circumstances of this case that to impose that responsibility, notwithstanding my findings, would accord with established principles: Adeels v Moubarak [54] - [56].
Having regard to my factual findings it is not possible, even as a matter of completeness, to deal with contributory negligence.

Conclusion

The plaintiff's claim is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KM
Associate to Judge Scott
2 JULY 2019