Langham v Connells Point Rovers Soccer Club Inc

[2005] NSWCA 461

CITATION:	Langham v Connells Point Rovers Soccer Club Inc [2005] NSWCA 461 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	12 December 2005
JUDGMENT DATE:	21 December 2005
JUDGMENT OF:	Santow J at 1; Tobias JA at 2; Campbell AJA at 82
DECISION:	(a) Appeal allowed; (b) Set aside the judgment and orders made by Judge J C Gibson on 15 September 2004 and in lieu thereof order that there be judgment for the appellant in the sum of $233,758; (c) The respondent to pay the appellant's costs of the proceedings in the District Court and 85% of the appellant's costs of the appeal, but to have with respect to the latter, if otherwise qualified, a certificate under the Suitors' Fund Act 1951; (d) Reserve the question of whether the costs referred to in Order (c) above should be paid on an indemnity basis, granting leave in this respect to the appellant to file and serve such evidence and submissions on that issue on or before 25 January 2006 and for the respondent to file any evidence and submissions in reply on or before 3 February 2006 upon the basis that the issue will be determined by the Court on the papers

CATCHWORDS:	NEGLIGENCE – Breach of duty – Where plaintiff tripped over rope strung across entranceway to park – Whether risk of injury reasonably foreseeable – “Shirt balancing exercise” – Reasonable response in circumstances – Whether plaintiff failed to exercise reasonable care for own safety – Obviousness of risk - NEGLIGENCE – Assessment of damages – Component for future gratuitous attendant care services – Civil Liability Act s 15
LEGISLATION CITED:	Civil Liability Act 2002 Suitors' Fund Act 1951
CASES CITED:	Consolidated Broken Hill Limited v Edwards [2005] NSWCA 380 Ghantous v Hawkesbury City Council (2002) 206 CLR 512 Lake Macquarie City Council v Holt (2004) 136 LGERA 81 Neindorf v Junkovic [2005] HCA 75 Thompson v Woolworths (Qld) Pty Limited (2005) 79 ALJR 904 Timberland Property Holdings Pty Limited v Bundy [2005] NSWCA 419 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES:	Angela Langham Connells Point Rovers Socer Club Inc
FILE NUMBER(S):	CA 40876/04
COUNSEL:	A: C S Leahy SC R: S Campbell SC
SOLICITORS:	A: Carroll & O'Dea, Sydney R: Curwood & Partners, Sydney

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 8646/02
LOWER COURT JUDICIAL OFFICER:	Gibson DCJ

CA 40876/04
DC 8646/02

SANTOW JA
TOBIAS JA
M W CAMPBELL AJA

Wednesday 21 December 2005

ANGELA LANGHAM v CONNELLS POINT ROVERS SOCCER CLUB INC

Judgment

1 SANTOW JA: I agree with Tobias JA.

2 TOBIAS JA: At approximately 3pm on a bright, sunny Saturday afternoon in early May 2002, Angela Langham (the appellant), then aged 31, was attending a playing match in which her nephew was participating accompanied by her three year old son, Matthew.

3 The soccer match was being played at Poulton Park, Connells Point (the Park), which was occupied by Connells Point Rovers Playing Club (the respondent). There was a low copper log fence separating the playing field of the Park from an adjoining area used as an informal carpark (the carpark). There were two gaps in that fence. The first was approximately one metre wide and served as a pedestrian access from the carpark to the playing field (the pedestrian access). The second was approximately five metres wide and, from its condition as depicted in the photographic evidence, was a dirt roadway providing both vehicular and pedestrian access between the carpark and the playing field (the vehicular entranceway).

4 On her arrival at the Park the appellant observed that the carpark was full, there being vehicles parked on both sides of a central dirt strip. In particular, vehicles were parked nose into the copper log fence in such a way as to obstruct from view both the pedestrian access and the vertical posts marking the outer limits of the vehicular entranceway.

5 Having driven past the gap in the row of parked vehicles which constituted the vehicular entranceway, the appellant stopped to permit another vehicle on her left to exit from its parking place, whereupon she parked her vehicle in that space. She then proceeded with her three year old son (whose hand she was holding) back towards to the vehicular entranceway, turned into the space between the vehicles on either side of the entranceway with the intention of proceeding to where her nephew was playing soccer.

6 According to the appellant she unfortunately did not observe a rope which had been strung by the respondent between the vertical posts on either side of the vehicular entranceway, with its lowest point approximately 10cm above the ground.

7 Not noticing the rope suspended across the entranceway and, apparently, concentrating on proceeding quickly with her excited son to where her nephew was playing soccer, the appellant and her son tripped on the rope and, as she described it, "just fell flat on our face". Not anticipating her fall, she landed heavily on the ground fracturing the radial head of her left elbow, the head and neck of the radius of her left forearm/wrist and sustaining a broken nose, facial injuries and contusions to her leg and knee.

8 On 28 November 2002 the appellant instituted proceedings against the respondent in the District Court alleging negligence in exposing her to the risk of injury from tripping over the rope in circumstances where it was difficult to see so that it should have been identified by a flag or some other form of marking to make its presence obvious to persons approaching it.

9 The proceedings came before her Honour Judge J C Gibson who, on 15 September 2004, found in favour of the respondent upon the basis that it had not breached its duty of care to the appellant. It is from that decision that the appellant appeals to this Court.

The evidence of the plaintiff/appellant

10 Four photographs comprising Exhibit A were tendered in evidence. These were taken by the appellant's husband on 10 May 2002 and were numbered 1 to 4. Photographs 1, 2 and 3 were taken from the carpark looking through the vehicular entrance towards the playing field, whereas photograph 4 was taken from the opposite direction. As the photographic evidence was important to her Honour's decision, I shall briefly describe each one.

11 Photograph 1 was taken from the carpark looking through the vehicular entranceway towards the playing field. From that photograph one can see the rope tied to each of the vertical posts that set the outer limits of the entranceway and, against the grassy background surrounding the posts one can barely see part of it. However, the major width of the entranceway was bare dirt and the rope is difficult to see against that background. In this respect it was the appellant's evidence that when, after the accident, she looked back and saw the rope, she noticed that it was a similar colour to the ground over which it was suspended.

12 Photograph 2 was taken from within a few metres of the entranceway so that the rope is fairly visible. In particular the photograph shows the vertical posts to which the rope was tied unobstructed by any parked vehicles. Photograph 3 was also taken from the carpark looking towards the playing field and although one can make out the rope against the grassy background, it disappears where suspended above the dirt section of the entranceway.

13 Photograph 4 was taken from the playing field looking back towards to the carpark but from a distance and it is impossible to make out the rope.

14 When shown photographs 1, 2 and 3 in her evidence in chief, the appellant agreed that she could see the rope. In cross-examination, she confirmed that the rope in the photographs appeared to be the same one upon which she had tripped but, she maintained, on the day of the accident it had hung much lower than the rope depicted in the photographs and that there were more vehicles parked on either side of the entranceway. In particular, there were vehicles parked in front of the vertical posts to which the rope was tied thus obstructing any view of them by persons approaching the entranceway.

15 The appellant confirmed that it was a beautiful, sunny day and that she was wearing her sunglasses. After she parked her vehicle, she proceeded towards the vehicular entranceway holding her son's hand. As she had not visited the Park for approximately 10 years, she was unaware of any other pedestrian access route between the carpark and the playing field. She said that her son was very excited at the prospect of seeing his cousin playing and that she was probably proceeding at a "fast walk". When asked in what direction she was looking after she left her vehicle, she said that she was looking "straight in front of me as I walked". When asked whether, when she looked in the direction of the entranceway she saw any obstruction, she answered in the negative. She agreed that up to the moment when she fell flat she did not see anything in front of her although after falling, when she looked back, she saw a "very low slung rope" which was lower than that depicted in the photographs of Exhibit A. The appellant confirmed that she also noticed that the rope was the same colour as the ground, namely, "beige, sand, dirt colour".

16 In cross-examination, the appellant reiterated that when she was 10 feet from the rope she was looking straight in front of her and that she was taking notice of what was in front of her on or near the ground. This notwithstanding, she did not see the rope which, she repeated, was "very lowly slung". She further said that when she tripped over the rope, she sustained a rope burn to her shin as a result.

17 It was put to the appellant that when one looked at the photographs in Exhibit A it did not take too much careful effort to see the rope. The appellant's response was that at the time there were vehicles parked in front of the vertical posts to which the rope was attached and that it was that attachment that, in effect, attracted her attention to the existence of the rope in the photographs.

18 When further cross-examined on the photographs, the appellant observed that photograph 2 was taken very close to the rope but that on the day in question the posts and the area immediately to the right of the left-hand post and to the left of the right-hand post had been obscured by parked vehicles and, further, that she was unable to see the grassed area adjoining the posts and against the background of which the rope was more visible. She again confirmed that on her approach to the entranceway between the two posts she was looking towards the playing area to which she was heading and still did not see the rope.

19 The high point of the appellant's cross-examination on this issue was in the following exchange (at Black 50Q-51R):

"Q As you look at photograph number 2, even if one were to put one's thumbs over the two posts on either side of the driveway, you can still see, can't you, the rope?
A Yes.
Q And that still would have been a view that you would have had firstly from your motor vehicle as you were waiting or looking for a car spot?
A The rope was different on that day, it was a different time of day and it was low, it was so long it was nearly touching the ground in the middle.
Q Even if it's nearly touching the ground in the middle it wouldn't be touching the ground on the sides, would it?
A But there were cars parked in front of the posts.
Q You said it was about four inches from the middle – four inches from the ground in the middle?
A Yeah.
Q So either side of that the rope rises?
A Yes.
Q And you're saying neither from your parked car did you notice a rope, as you were approaching the area you – how far from the space between the two poles, how far from that area were you when you first looked in the exact area?
A When I came up to walk through.
Q Is that a foot, two foot, three feet?
A Sorry, I don't really understand what you mean, when left my car?
Q You left your car. You said at some stage you looked where the rope was and didn't see it?
A Ah hmm.
Q How far – where you later found the rope to be – how far were you from that when you say you looked?
A As soon as I got out of my car I saw – you could, I could see that there was copper logs and I just saw that – and there was no copper logs and I just presumed that that was the walkway so I just proceeded to walk over.
Q And the time that you left your car presumably there was no – presuming that was the walkway did you then at any later stage look to see or to inspect the area between the two upright poles on either side?
A No, 'cause you couldn't see the poles, there were cars parked in front of them.
Q Did you at any stage, therefore, look to see what was in front of you after you left your car?
A Well, yes, I thought I did.
Q You thought you did?
A Well, I did but there – I walked straight through it, I didn't – it was just so low and it was the same colour as the direct been on the ground."

20 The only other evidence going to the issue of liability was a report of Dr Neil Adams dated 10 September 2003 tendered on behalf of the appellant which, apart from some of its contents that were deleted by agreement, was admitted without objection. Dr Adams was not required for cross-examination and the respondent tendered no expert or, for that matter, any other evidence relating to that issue.

21 Dr Adam's report contained a number of photographs but by the time they were taken a new steel gate had been erected at the vehicular entranceway between the two vertical posts. Dr Adams reproduced photographs 1, 2 and 3 from Exhibit A. He observed that in photograph 2 the rope hanging across the entranceway was "almost invisible" and that it was more clearly seen in photograph 2 but was "almost entirely invisible" in photograph 3. He also noted that in each of these photographs the vertical posts to which the rope was affixed were visible, which was not the case at the time of the accident due to their obstruction by parked vehicles.

22 Dr Adams also observed that, as seen in the photographs, the rope was almost identical in colour to the ground over which it was suspended. For a person in the appellant's position, who was otherwise unaware of its presence, he considered that it would have been almost impossible to perceive. Dr Adams noted that the appellant, in common with persons moving in a normal manner through the environment, would not necessarily have been looking closely at the ground immediately in front of her feet. According to his research, pedestrians do not walk along with their gaze fixed on the pavement two metres ahead of their feet, but make a general scan of the terrain and the path ahead identifying what may appear to be any major hazards or obstacles and thereafter allowing their visual attention to range over other available stimuli of more direct interest and relevance.

23 In these circumstances, Dr Adams was of the view that there was no reason for the appellant to have perceived the rope until she actually tripped over it.

The reasoning of the primary judge

24 In her judgment the primary judge (at [1]) noted that the Civil Liability Act 2002 did not apply to the issue of liability although it did apply to quantum, a matter to which I will refer later in these reasons. Her Honour then noted (at [10]) the respondent's admission as to its occupation of the Park so that it had a duty to exercise reasonable care presumably for the safety of those persons whom it knew, or ought to have known, would be parking their vehicles in the carpark and then proceeding through the vehicular entranceway to play or watch the soccer games. Thus, her Honour observed that the question was

"whether the placement of a low slung rope between the two posts for the purpose of preventing cars parking on the football field or otherwise entering the football field, amounted to a breach of that duty."

25 After referring to the decision of the High Court of Australia in Ghantous v Hawkesbury City Council (2002) 206 CLR 512 at 581 [163] concerning the need for a pedestrian to keep a proper lookout for what he or she would expect to see and noting that it was a feature of human conduct that "some allowance must be made for inadvertence", her Honour referred to the test set out by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 which she said required what she regarded as a three stage process of analysis. She said (at [14]):

"Firstly, would a reasonable person in the defendant's position have foreseen the risk of injury to persons such as the plaintiff? 'Risk' in such a context is a real and therefore foreseeable risk as opposed to a far-fetched or fanciful risk. If the answer was yes, what would a reasonable person do by way response to this risk? Finally, what is the magnitude of the risk, the degree of probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating action and any other relevant factor?"

26 It should be noted that her Honour has reversed the order of the last two stages. Apart from that, her Honour's reference to the Shirt balancing exercise was unexceptional. The problem as I see it is that her Honour never correctly answered the questions which she posed for herself.

27 The primary judge then turned to the decision of this Court in LakeMacquarie City Council v Holt (2004) 136 LGERA 81, noting that the central question which the trial judge was required to address in that case (but had not) was whether the plaintiff at the time of the accident was exercising reasonable care for his own safety. In particular, her Honour referred to what Sheller JA, with whom Ipp JA and myself agreed, said (at 86 [17]) to the effect that the council in that case was entitled to expect that persons such as the plaintiff who went jogging along a council-constructed cycleway

“would ordinarily exercise sufficient care by looking where they were going and perceiving and avoiding obvious hazards such as an uneven surface at the edge of the cycleway".

28 The balance of her Honour's judgment in the present case seemed to concentrate upon the question of whether the appellant had exercised sufficient care for her own safety. The thrust of her reasoning is to be found in the following two paragraphs of her judgment:

"19. Looking at the photographs which were tendered in these proceedings, it is difficult to accept the plaintiff's assertion that she was unable to see the rope. Even if the rope was lower than the rope shown in the photographs, and even allowing for the slight alteration between the two dimensional and three dimensional effect caused by photography, the rope is visible and could have been perceived by a person having a reasonable regard for his or her own safety. This was particularly the case of the plaintiff who was on [the] lookout for a parking spot in circumstances where the carpark was full and she was looking for a parking spot. Although in answers to questions she said that the car in question had started to pull out at some unspecified time very soon after she arrived, this was not her evidence in chief; her evidence in chief was that she had to wait for a car to leave. She had to drive right past the portion of the roadway which was roped off and commonsense dictates that she must have looked at this sole open space to assess whether she could park there or whether it was vehicular access to further parking.
20. Although counsel for the plaintiff described the dirt road leading through the park as 'walkway' it clearly was a roadway and the plaintiff needed to use reasonable care to ensure that she was having regard for her safety and that of her son when walking along a dirt road intended for vehicles. Nor should it have come as a surprise to her that a dirt road (which was clearly a private road and not a public area) was roped off to prevent vehicles from entering in circumstances where there was a full carpark and there were clearly members of the public looking for somewhere to park their cars. A point on which great stress was placed in the plaintiff's case was that the rope was the same colour as the ground. … Similarities in colouring do not amount to negligence. This must apply with greater force in relation to ropes, which are generally brown in colour, and where the fact that it was strung across an entry space should have been apparent to anyone exercising reasonable care."

29 The primary judge then noted (at [21]) that there had been no suggestion by the appellant of any prior accidents which placed the respondent on notice that the rope created a danger, and she rejected as an admission of negligence the fact that shortly after the accident, the respondent had attached a piece of plastic bag to the rope to make it more visible: she regarded this as "merely an additional precaution". Her Honour then referred (at [22]) to the report of Dr Adams and to a comment by Sheller JA in Holt (at 87 [18]) to the effect that certain types of expert evidence tended to divert attention from the central issues in pedestrian accident cases on council footpaths, namely, the factual determination of what on the occasion the pedestrian perceived and did before the fall and the state of the footpath where the pedestrian fell. She observed (at [23]) that his Honour had noted that the question in such cases, including the present case, was whether the pedestrian took reasonable care for his or her own safety.

30 Accordingly, her Honour found (at [24]) that there was no breach of duty of care by the respondent and entered judgment in its favour accordingly.

31 After dealing with the question of quantum lest her finding in favour of the respondent be reversed on appeal, in the last paragraph of her judgment (at [44]) her Honour summarised the position as she saw it in the following terms:

"… in my view the issue in this case is a very simple one, namely whether the defendant knew or ought to have recognised that fixing a rope to two posts to run across the dirt path to prevent vehicular access to the park created an unreasonable risk of harm to others and whether a reasonable person in the defendant's position would assess the risk as one which could not reasonably be disregarded. While the law in this area has changed significantly in recent years, I consider it is now clear that the plaintiff's inadvertence in not seeing the rope, which I find to be as a result of her own inattention, was not reasonably foreseeable by the defendant. To require the defendant not only to assess whether someone could see the rope when it was slung across, but whether someone could see the rope in a variety of different circumstances, such as when the two posts to which the rope was tied were obscured, when the pedestrian entry was obscured, and so on is unreasonable."

32 It is apparent from the foregoing passage of her Honour's judgment that she has correctly stated the relevant principle in the first sentence but then seems to have gone astray. In particular, she must have answered the question posed by that principle in the negative upon the basis that the risk of harm was not reasonably foreseeable because the appellant's failure to see the rope, due to her own inattention, was itself not reasonably foreseeable. Further, she has found that it would be "unreasonable" to require the respondent to foresee the nature of the circumstances which existed and which might have created a risk to a person entering the playing field through the vehicular entranceway and tripping over the rope.

Did the primary judge err in finding that the respondent was not in breach of its duty of care to the appellant?

33 As I have already observed, the primary judge seems to have considered that the question of whether the respondent breached its duty of care to the appellant essentially depended upon whether she had taken reasonable care for her own safety. As her Honour found that she had not, it followed that there could be no breach of the respondent's duty of care. In this respect, her Honour appeared to have relied upon the remarks of Sheller JA in Holt to which I have referred but, with respect, has taken them out of context. Furthermore, her Honour’s determination that the appellant's inadvertence or inattention in not seeing the rope was not reasonably foreseeable by the respondent also involved her asking herself the wrong question. In fact, with respect, there is a deal of confusion in her Honour's reasoning process which, in my view, has led her into error.

34 I am of that opinion for the following reasons. Firstly, her Honour was required by the Shirt balancing exercise to ask herself whether an occupier of the Park in the position of the respondent would have reasonably foreseen that its conduct in placing a low slung rope of similar colour to the ground over which it was suspended at a location which it knew would be used as an entranceway from the carpark to the playing field involved a material risk of injury to the appellant or to a class of persons including the appellant. To be relevantly foreseeable, that risk of injury may be remote in the sense that it was extremely unlikely to occur provided it was not a far-fetched or fanciful.

35 It was an irrelevant consideration to the question of foreseeability of the risk of harm in the Shirt sense for her Honour to ask whether the appellant's inadvertence in not seeing the rope was itself reasonably foreseeable by the respondent. That inadvertence or inattention may well enter into other aspects of the Shirt balancing exercise but it did not enter into the question of the reasonable foreseeability by the respondent of the risk of harm from the suspension of the rope across the only visible entranceway from the carpark to the playing field.

36 Secondly, her Honour failed to consider the magnitude of the risk of a person in the appellant's position failing to see the rope and tripping over it, and the probability of its occurrence. In the present case, the magnitude of that risk was high in the sense that a person who did not see the rope and tripped over it without anticipating its presence was likely to fall very heavily causing significant injury.

37 As to the degree of probability of its occurrence, that might be regarded as low depending upon whether a person in the position of the appellant knew or was aware that the respondent used a rope suspended between the two vertical posts marking the entranceway for the purpose of preventing the entry of vehicles to the playing area. It was however foreseeable that there would be persons who would be unaware of the existence of the rope who would use the carpark area and then proceed to the playing field.

38 Thirdly, there could be no issue as to the modest expense, difficulty or inconvenience of taking alleviating action to mark the presence of the rope in precisely the same manner as occurred a few days after the accident. Even if that action by the respondent did not amount to an admission of negligence, but was only "an additional precaution", it evidenced how easy it was to bring the existence of the rope to the notice of those approaching it, in a manner which was neither expensive, difficult nor inconvenient.

39 Fourthly, in my opinion, her Honour drew two inferences which were neither properly open to her nor based on factual observation where she had some special advantage. The first was in [19] of her judgment, which I have recorded in [28] above, when she found that it was difficult to accept the appellant's assertion that she did not see the rope as it was visible in the photographs in Exhibit A. For reasons to which I have already referred, in my opinion when one reproduces the circumstances in which the appellant found herself, where the unchallenged evidence was that the vertical posts to which the rope was attached were obstructed by parked vehicles and the rope was low-slung and the same colour as the ground over which it was suspended, no proper basis existed in the photographs to support her Honour's conclusion (at [19]) that it was difficult to accept the appellant's assertion that she was unable to see the rope as she approached it.

40 In this respect, the evidence of Dr Adams was of some significance insofar as he opined, without challenge, that people moving in a normal manner through the environment do not necessarily look closely at the ground immediately in front of their feet, an observation which in any event is a matter of common knowledge and common sense. So much was recently affirmed by Kirby J in Neindorf v Junkovic [2005] HCA 75 where, although in sole dissent, his Honour stated what is in truth the obvious (at [76]) in these terms:

"Most people do not normally walk, even on unfamiliar surfaces, looking constantly at their feet. The fact that there was a division in the slabs of concrete in the appellant's driveway was obvious. But the distinct unevenness in surface levels of the adjoining slabs may not have been obvious to a person, like the respondent, who had no warning of it and no reason to anticipate it."

41 Given the particular circumstances on the day in question, in terms of the obstruction of part of the vehicular entranceway by parked vehicles, I see nothing in the photographs of Exhibit A which would justify the conclusion that the existence of the rope to someone who was otherwise unfamiliar with the area would be obvious unless that person was looking constantly at the ground immediately in front of them.

42 In the present case, there was no reason for the appellant, for the purpose of exercising reasonable care for her own safety, to have been looking at where she was placing her feet or to have anticipated that there would be a rope suspended across the only visible entranceway from the carpark to the playing field which the respondent was clearly inviting her to use to gain access from one to the other.

43 The second inference drawn by the primary judge which had no sufficient basis was that, because the appellant had driven past the vehicular entranceway, common sense dictated that she must have looked into this open space to assess whether she could have parked there and, therefore, must have seen the rope. No questions were put to the appellant which could in any way justify this inference and there was no other evidence to support it.

44 Fifthly, in [20] of her judgment her Honour found that, as the vehicular entranceway was in fact a roadway, the appellant needed to use reasonable care to ensure that she had regard to the safety of herself and her son when "walking along a dirt road intended for vehicles". This statement may be correct insofar as the appellant, not seeing the rope, should have been on the lookout for any other vehicles which were proceeding towards her with a view to using the entranceway. But the finding is, with respect, irrelevant to the issue as to whether the appellant failed to exercise reasonable care for her own safety in not seeing the rope which, according to her Honour, was intended by the respondent (but not to the knowledge of the appellant) to prevent vehicles from using the entranceway.

45 Sixthly, the primary judge also found (in [20]) that it should not have come as a surprise to the appellant that the entranceway was roped off to prevent vehicles from entering the playing field in circumstances where there was a full carpark and there would be members of the public looking for somewhere to park their vehicles. Again, it is to be noted that not one question was directed to the appellant in cross-examination to justify this finding. Although it was submitted by the respondent that this finding was not an unreasonable normative decision on the part of the primary judge, I cannot, with respect, agree. I can see no rational basis why, even though finding a parking space in the carpark may have been difficult, the appellant should have anticipated or expected that the vehicular entranceway would have been roped off to prevent vehicles entering the playing field where that entranceway was as far as the appellant was concerned and to the knowledge of the respondent, the only unobstructed pedestrian access from the carpark to the playing field.

46 Finally, her Honour dismissed the similarity in colour between the rope and the ground over which it was suspended upon the basis that ropes, which are generally brown in colour and which are strung across an entry point, should normally be apparent to anyone exercising reasonable care for his or her own safety. In my opinion, as I have already remarked, the very fact of the presence of the rope, which was both low slung and of similar colour to the ground over which it was suspended and which was neither anticipated nor should have been anticipated by the appellant given that the entranceway appeared to be the only pedestrian access point from the carpark to the playing field, is hardly an adequate basis for a finding that the appellant, exercising reasonable care for her own safety, should have been aware of it.

47 Although her Honour placed much reliance upon the alleged failure of the appellant to exercise reasonable care for her own safety, it is to be remembered that the source of that concept is, as she noted in [11] of her judgment, the joint judgment of Gaudron, McHugh and Gummow JJ in Ghantous where their Honours expressed the concept in the following terms (at 581 [163]):

"As Callinan J points out in his reasons in Ghantous , persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v South Australia ) or the surrounding area … In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a 'trap' or, as Jordan CJ put it 'of a kind calling for some protection or warning'. "

48 In my opinion, it was not obvious in the relevant sense to persons in the appellant's position seeking to access the playing field from the carpark through a space which was partially obstructed by parked vehicles, that there would be a low slung rope suspended across that space of a similar colour to the ground over which it was suspended. In my opinion, the rope constituted a hazard or trap created by the respondent which was not obvious in the sense in which that expression was used in Ghantous and the many cases which have followed and applied it. It was therefore an obstruction of a kind that called for some warning of its presence.

49 The present was not a case of uneven paving stones or holes or the other kinds of hazards which a pedestrian should expect in the course of walking along a public street in an urban area. There was nothing associated with the natural state or condition of the ground upon which the appellant was walking which would constitute an obvious hazard of the nature of those referred to in the pedestrian cases. In the present case, the respondent had erected a rope barrier which, to any person who did not anticipate its presence, clearly constituted a trap for pedestrians who were, in effect, invited by the respondent to use the entranceway as a pedestrian route from the carpark to the playing field.

50 As Ipp JA remarked in Consolidated Broken Hill Limited v Edwards [2005] NSWCA 380 at [53]:

"Obviousness of risk is … merely a descriptive phrase that signifies the degree to which risk of harm may be apparent. It is a factor that is relevant to whether there has been a breach of duty of care… The weight to be attached to the obviousness of the risk depends on the totality of all the circumstances. In some circumstances it may be of such significance and importance to be effectively conclusive."

51 In Timberland Property Holdings Pty Limited v Bundy [2005] NSWCA 419 at [25], Basten JA, with whom Handley JA and Hunt AJA agreed, observed:

"… obviousness depends to a significant extent on the circumstances and the position of the perceiver. That which is obvious from one position or at one time of day or in some circumstances, may not be obvious where those factors change. To determine what is obvious in a particular case, it may be useful to take the specific circumstances of the plaintiff into account and then to inquire whether there was some aspect of her circumstances which was not reasonably foreseeable by the occupier. So long as there was no such unforeseeable circumstance, the question of obviousness must be answered by reference to her particular circumstances."

52 After citing from the judgment of the High Court in Thompson v Woolworths (Qld) Pty Limited (2005) 79 ALJR 904 at 911 [37] that

"[i]f 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,"

Basten JA observed (at [29]) that in the circumstances of that case (where the plaintiff walking across a carpark slipped on a patch of oil or grease), notwithstanding that the patch would be apparent to a person looking down as they walked across the carpark, it did not follow that a person taking reasonable care for their safety whilst so walking need necessarily look at the ground in the circumstances which then prevailed. Accordingly, a finding of duty of care or, I would add, breach of that duty was not contradicted by a factual finding that the oil or grease patch was " obvious ".

53 The respondent relied heavily upon the primary judge's finding that the rope was visible to the appellant and, therefore, was not a trap so that the fact that she asserted that she did not see it indicated that she was not exercising reasonable care for her own safety. It submitted that that finding was fatal to the appellant's case. I have already expressed the view that in my opinion such a finding was unjustified. This is so notwithstanding the respondent's submission that the so-called "hazard" constituted by the rope was the very type of thing one might expect to find on a suburban sportsfield occupied by a junior sporting club.

54 The primary judge came to a similar conclusion at [20] of her judgment, which I have recorded at [28] above, but which I do not accept as justified and which, in any event, was unsupported by any evidence including any questions directed to the appellant with respect to such a possibility.

55 The respondent also relied upon the recent decision of the High Court in Neindorf, but that case involved no more than the plaintiff suffering injury when she tripped and fell on an uneven surface in the driveway of the appellant's home while attending a garage sale. As the Gleeson CJ was at pains to point out (at [8]), not all people live or can afford to live in premises that are completely free of hazards. No one, his Honour said, lives in premises that are risk-free. Concrete pathways crack. Unpaved surfaces become slippery or uneven. The expression "reasonable response in the circumstances", the Chief Justice observed, raises a question of normative judgment which has to grapple with all the practical problems associated with what is reasonable to require of occupiers in order to protect entrants from a risk of injury associated with the condition of their premises.

56 A similar observation was made by Hayne J who (at [95]) noted that the relevant danger was presented by the uneven surface of the defendant's driveway to an extent which was not at all uncommon in the driveways of suburban housing. Would it, his Honour asked,

"have been reasonable for the occupier to eliminate or reduce the risk of tripping or stumbling on or over the unevenness to warn all entrants to watch their step?"

57 Having referred to the fact that the means of reducing such a danger could readily be found, the issue was whether it was reasonable for an occupier embarking upon a garage sale to take such measures. When that question was examined from the proper perspective, without knowing what in fact had happened to the plaintiff, his Honour answered the question in the negative. This was because any suburban house presented many features that could lead to injury and in that sense presented many dangers, but it would not be reasonable in the circumstances to require the unevenness of a driveway which was no different from unevenness found in most suburban houses to be rectified before the garage sale was held.

58 Similarly, Callinan and Heydon JJ in a joint judgment, observed (at [117]) that

"knowledge of the joint [in the concrete slabs of the driveway] and the unevenness of it is not the same however as an appreciation of it as a danger. There is no evidence of any previous problem or accident caused by the joint. The unevenness in question was of a kind often encountered. But in any event it is our opinion an overstatement to describe a slightly raised concrete on one side as a 'danger' [or, in the present context, a 'risk'] of which the appellant was, or should have been aware. It was therefore not unreasonable for the appellant not to have taken measures to guard against the slight risk at most that it presented."

59 In my opinion the present case is distinguishable from those to which I have referred. The suspension of the rope between the two vertical posts in a place which the respondent knew would be used as a point of pedestrian access from the carpark to the playing field involved the creation of a concealed hazard which was quite out of the ordinary compared to the types of hazards referred to in the authorities concerning the tripping of pedestrians on uneven driveways or footpaths. Had the appellant's injuries been caused by her tripping upon some natural feature of the dirt entranceway, then the result may have been quite different. But in the present case, the hazard was of an unusual kind created by the respondent in circumstances where there was no reason for persons in the position of the appellant entering the entranceway between the parked vehicles to anticipate or expect that there would be a low slung rope the same colour as the ground over which it was suspended, obstructing their otherwise unimpeded access to the playing field and over which they would have to step in order to avoid the risk of injury.

60 In the foregoing circumstances, in my opinion there was a clearly foreseeable risk of harm which, in the prevailing circumstances, required a response by the respondent which had the effect of warning those unfamiliar with the area of the presence of the rope barrier across the entranceway. It follows in my opinion that the respondent breached its duty of care to the appellant who is entitled to a verdict and judgment accordingly.

The question of quantum of damages

61 The primary judge, in accordance with proper practice, determined the quantum of the appellant's damages if it were found that she had erred on the issue of liability. The only part of her Honour's assessment that the appellant challenges is her finding that she would not include in that assessment any component for future gratuitous attendant care services

"having regard to the test imposed by the provisions of the Civil Liability Act in this regard."

62 The appellant had claimed damages for future gratuitous attendant care services in the sum of $145,209 based upon a requirement for such services of seven hours per week for the rest of her life. She had originally claimed 26.5 hours per week which, in final address, was reduced to seven.

63 In order to succeed on this claim, it was necessary for the appellant to satisfy s15(2) and (3) of the Civil Liability Act which are in the following terms:

"(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that:
(a) there is (or was) a reasonable need for the services to be provided, and
(b) the need has arisen (or arose) solely because of the injury to which the damages relate, and
(c) the services would not be (or would not have been) provided to the claimant but for the injury.
(3) Further, no damages may be awarded to a claimant for gratuitous attendance care services if the services are provided, or are to be provided:
(a) for less than 6 hours per week, and
(b) for less than 6 months."

64 Although her Honour regarded the appellant as a witness whose word on the issue of past gratuitous attendant care services could be accepted, she had reservations about her evidence with respect to the need for services. In particular, her Honour observed (at [39]) that in the course of cross-examination the appellant had made significant concessions with respect to the degree to which she was then able to perform household tasks and that although her requirement was only seven hours per week, in fact a practical analysis of each of the tasks she performed demonstrated that she required very little assistance.

65 Accordingly, her Honour was satisfied

"that the plaintiff was able to do all but the heavy jobs around the house, and that these jobs are undertaken by her husband as his contribution to the housework. I have not drawn any inference from the fact that the plaintiff's husband was not called; I have assumed his evidence would corroborate the plaintiff but I'm not prepared to accept her evidence in any event."

66 Furthermore, in his report of 18 August 2004, Dr Clive Kenna (retained on behalf of the respondent) addressed this issue wherein he was specifically asked whether the appellant would require attendant care services for the rest of her life. It was his opinion that she would require no more than two hours maximum home help per week for the rest of her life.

67 None of the medical experts called on behalf of the appellant directly addressed this issue. In a report dated 3 November 2004, Dr Raymond Wallace, Orthopaedic Surgeon, merely stated that the appellant

"notes significant interference in her activities on a daily basis, particularly curtailment of her leisure-time pursuits, disturbance of her sleep and difficulty in carrying out normal house work tasks, and this situation will persist in the long term."

68 Dr Selby Brown, consultant in orthopaedic surgery and orthopaedic rehabilitation, in a report dated 26 August 2003, merely noted that the appellant identified that she required assistance with her domestic activities but that her need for such ongoing assistance would best be assessed by a home assessment performed by an occupational therapist experienced in such matters. No evidence of any such assessment was called.

69 Finally, the appellant's general practitioner, Dr Bishai, in a report dated 17 March 2004 merely observed that the appellant currently relied heavily on her mother to do most of the grocery shopping and ironing.

70 In these circumstances, it is hardly surprising that her Honour considered that Dr Kenna's report carried a great deal of weight. On the basis of that report and her assessment of the appellant's evidence on this issue, her Honour concluded (at [40]) that she found the appellant's

"assertions of the degree to which she required assistance in the home to be implausible. Accordingly, if damages were to be awarded by me to the plaintiff, they would not include any component for future gratuitous attendant care, having regard to the test imposed by the provisions of the Civil Liability Act in this regard."

71 It is apparent from the foregoing that her Honour was neither satisfied in terms of s15(2)(a) that the appellant was in reasonable need of such services nor that, if such services were to be provided, they would exceed six hours per week, particularly bearing in mind that Dr Kenna considered that two hours per week would be the maximum required. Accordingly, on the basis of Dr Kenna's evidence (which her Honour accepted) the appellant would not exceed the threshold required by s15(3) of the Civil Liability Act for an award of damages for gratuitous attendant care services.

72 The appellant submitted that there was no proper basis for her Honour's conclusion (at [39]) that in the course of cross-examination she made significant concessions about the degree to which she was then able to perform household tasks. In particular, it was submitted that her cross-examination at Black 68M-71X provided no such basis.

73 On the other hand the respondent pointed to the cross-examination of the appellant at Black 77K-78V and, in particular, 79V-80F. In my opinion a reading of that cross-examination of the appellant left it open to the primary judge to find that, eventually, the appellant did concede that she was able, albeit with a little difficulty, to perform the tasks in respect of which she was claiming s15 damages.

74 In any event, there was the evidence of Dr Kenna that directly related to this issue, upon which her Honour placed a deal of weight. Like the other medical witnesses, Dr Kenna was not required for cross-examination. Furthermore, as I have observed, none of the medical experts whose reports were tendered on behalf of the appellant dealt with this issue in any detail and, certainly, not to the extent it was dealt with by Dr Kenna. In my view, therefore, it was open to her Honour to place determinative weight upon Dr Kenna's evidence in light of the appellant's cross-examination to which I have referred with the inevitable result that, at the very least, the appellant was not able to meet the threshold stipulated by s15(3).

75 Accordingly, in my opinion the appellant has not demonstrated error on the part of the primary judge with respect to her finding that, if the appellant was otherwise entitled to damages, they were not to include any component for future gratuitous attendant care services.

Contributory negligence

76 In its oral submissions on the appeal the respondent sought the Court's leave to argue that, if otherwise the Court was of the view that the respondent had breached its duty of care to the appellant, nonetheless it should make a finding that the latter was guilty of contributory negligence. Although contributory negligence was pleaded in [6] of the respondent's Notice of Grounds of Defence filed on 9 January 2003, it was conceded that at the trial no submissions were made on behalf of the respondent to support a finding of contributory negligence. Furthermore, no such claim was made in the respondent's written submissions filed with respect to the appeal.

77 In the foregoing circumstances, and noting that the appellant opposed any such grant of leave, the Court refused to grant the respondent leave to raise such issue of the appellant's contributory negligence.

Conclusion

78 For the foregoing reasons in my opinion the appellant has demonstrated that her Honour erred in finding that there was no breach by the respondent of its duty of care to the appellant. In these circumstances, there should accordingly be a judgment in her favour. So far as the issue of damages is concerned, the parties were content with her Honour's findings with respect to quantum apart from the issue of future gratuitous attendant care services which her Honour rejected and in respect of which the appellant's challenge thereto has failed. In these circumstances, the agreed quantum of damages is $233,758.

79 The parties were asked to make submissions as to the costs of the appeal upon the assumption that the appellant succeeded on the issue of liability but failed on that aspect of quantum which was the subject of challenge. The appellant submitted that the amount of time involved in the issue of quantum, both in terms of the provision of written submissions as well as the oral argument, was peripheral to the main issue of liability as a consequence whereof she should be entitled to 100% of her costs on the appeal. The respondent submitted that in the circumstances each party should pay her or its own costs of the appeal.

80 Having given the matter careful consideration and appreciating that the two issues were separate and distinct, in my opinion the appellant is entitled to 85% of her costs of the appeal.

81 I would therefore propose the following orders:

(a) Appeal allowed;

(b) Set aside the judgment and orders made by Judge J C Gibson on 15 September 2004 and in lieu thereof order that there be judgment for the appellant in the sum of $233,758;

(c) The respondent to pay the appellant's costs of the proceedings in the District Court and 85% of the appellant's costs of the appeal, but to have with respect to the latter, if otherwise qualified, a certificate under the Suitors' Fund Act 1951;

(d) Reserve the question of whether the costs referred to in Order (c) above should be paid on an indemnity basis, granting leave in this respect to the appellant to file and serve such evidence and submissions on that issue on or before 25 January 2006 and for the respondent to file any evidence and submissions in reply on or before 3 February 2006 upon the basis that the issue will be determined by the Court on the papers.

(e) The judgment referred to in (b) above be stayed for a period of 28 days from the date of this judgment.

(f) The respondent to pay the costs of the application for the stay of judgment.

82 M W CAMPBELL AJA: I agree with Tobias JA.

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