Neindorf v Junkovic

[2005] HCATrans 573

[2005] HCATrans 573

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A36 of 2005

B e t w e e n -

SANDRA NEINDORF

Appellant

and

MARTA JUNKOVIC

Respondent

GLEESON CJ
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 9 AUGUST 2005, AT 10.49 AM

Copyright in the High Court of Australia

MR R.J. WHITINGTON, QC:   May it please the Court, I appear with my learned friend, MR K.G. NICHOLSON, for the appellant.  (instructed by Thomson Playford Lawyers)

MR S. WALSH, QC:   If the Court pleases, I appear with MR A. ROSSI for the respondent.  (instructed by Moody Rossi & Co)

GLEESON CJ:   Yes, Mr Whitington.

MR WHITINGTON:   May it please the Court, there are two critical features in this case, in our submission.  The first is that the plaintiff was injured while walking.  The second is the place where the accident occurred and in this case it was a typical Adelaide suburban residence.

KIRBY J:   Yes, with a very defective path onto which you had invited the public.  It was not just an ordinary typical residence all on its own.

MR WHITINGTON:   Well, there was a finding by inference by the first judge on appeal and we would say it is a perfectly acceptable finding that there was nothing out of the ordinary about the driveway in the context of an ordinary suburban resident.  It may not have been in perfect repair, but the state of the surface was not ‑ ‑ ‑

KIRBY J:   Yes, but that all begs the question and the question is whether or not there was a defect in the nature of a hazard and that is what all the judges seemed to have called it.  It was a hazard.

MR WHITINGTON:   With respect, your Honour, we say that “hazard” is, in effect, a loaded word that has a certain value judgment in it.

KIRBY J:   I think the Chief Justice called it a hazard.

MR WHITINGTON:   He did, and so did Justice Gray, but the question is what they meant by that and whether one can properly characterise the condition, or the particular condition of the expansion joint as dangerous.  In a sense that is the essence of the case because we say there was no danger in that irregularity, that undulation in the path, to an ordinary person taking ordinary care for themselves and we say that ‑ ‑ ‑

KIRBY J:   That is if they happen to notice it.

MR WHITINGTON:   Well, your Honour, it is possible they may not notice it.  We accept that it is reasonably foreseeable in a case such as this that a plaintiff may not notice an ordinary irregularity in the terrain.  They may not look ahead and see the lie of the land.  So it is reasonably foreseeable that through inadvertence, or their own negligence they may either trip or stumble, as in this case, but that is not the issue.  The issue in this case is whether, given that, a householder, a defendant householder should be held liable.

KIRBY J:   You do not even want to accept a duty of care.  You invite people in, you put dazzling products there for them to buy to your economic gain and you do not even want to accept the duty of care.  What is happening to the law of negligence in this country?

MR WHITINGTON:   If your Honour pleases, we concede a duty of care.  We concede a duty of care in these terms, starting with the broad Zaluzna formulation, that the defendant householder is under a duty to take reasonable care to avoid harm from reasonably foreseeable risks.  The question is, what “reasonable care” means in these circumstances, and we say that the duty can be assessed by reference to a particular scope of risk that does not fall within the duty.  We say those particular risks, if your Honour pleases, they are risks arising from ordinary and commonplace irregularities in the surface of the property.

KIRBY J:   So we just throw all the learning on accident prevention out the window?  No one has any obligation to make any efforts to prevent accidents.  Just throw it all out the window.  Braistina means nothing. 

MR WHITINGTON:   The question, your Honour, is what consequence ensues if the decision of the majority of the Full Court stands, because the majority either seem to formulate or assess a duty of care by reference to the particular location and occasion of the garage sale, or seem to assess that there was a heightened duty of care on that occasion.  But we say that is the essential fallacy in the reasoning of the majority.  It involves the keyhole fallacy or the hindsight fallacy because the home owner has to look at their entire property and at all times.  There was nothing out of the ordinary about this garage sale.  It is a perfectly ordinary and common incident of domestic use and enjoyment of a suburban property.

KIRBY J:   That is why I started with it.  The question is whether or not the fact that you invited – most people do not invite members of the public onto their property.  The fact that you had invited members of the public onto your property to your economic gain imposes on you additional obligations of care to the public in safety protection.  That is the question I think on this first issue.

MR WHITINGTON:   Yes, well, there are two elements that your Honour has put there.  The first is the question of invitation.  We would submit that the ordinary use and enjoyment of a domestic residence will involve occasions of visitation by people who are invited.

KIRBY J:   Not to the undiscriminating invitation of an advertisement in the public newspaper to the whole public.

MR WHITINGTON:   But the same might apply, your Honour, if one advertised one’s house for sale.

KIRBY J:   Indeed.

MR WHITINGTON:   Or if one advertised a car for sale from the premises.  Now, if the Court is to convert such occasions into occasions of special duty because there is an element of commerce, then that may be applied on many, many occasions.  Take, for instance ‑ ‑ ‑

KIRBY J:   Not special duty.  Special duty is gone.  It is a question of the content of the duty once you invite people onto your premises for economic gain for yourself.

MR WHITINGTON:   Yes, but the question then is what does “economic gain” mean in these circumstances?  Now, there is no suggestion in this case of profit motive or of a business.

KIRBY J:   What, they were going to give all the money they made from their garage sale to charity?

MR WHITINGTON:   No, but that does not necessarily mean they are making a profit, your Honour.  But your Honour’s example is a good one.  Assume they had decided ‑ ‑ ‑

KIRBY J:   An economist would tell you it is a profit.

MR WHITINGTON:   Well, one may debate that, but ordinarily a garage sale involves disposal of items of household use and ornament that are no longer considered desirable and generally the purpose is to quit the goods.  Now, quit them at a price if possible, but that is not the same thing as operating for a profit or, indeed, in any substantial sense a commercial gain.  It is certainly quite different from conducting a business from the premises.

KIRBY J:   It is a temporary business.  It is an economic activity.  All you had to do was to have regard for the fact that the public in all of their variety was coming and put down some sort of piece of lino or a mat or something like that to prevent people getting stuck in the hole that you had there.  That is not asking a lot.  It is just asking you pay attention to accident prevention and if we are going to write that out of the law of negligence, well, it will be a bad day.

MR WHITINGTON:   But the question then becomes the implication of such an answer for the householder in the broader scheme of things, if your Honour pleases.  Does one say or give the same answer in respect of an invitation to the neighbourhood children to play a game of cricket?  Does one give the same answer in respect of a barbecue?  If the barbecue is held for the local football club and there is a raffle involved, and is not the commercial gain of a householder but somebody else, do you give the same answer?  The answer we say is appropriate is that these are all occasions of the ordinary use of a domestic residence and that a householder is entitled and should be entitled, without coming under any specific or higher obligation, to, for instance, sell property from their residence provided it is in the ordinary course of domestic activity.

HAYNE J:   How, if at all, do you relate any of these propositions to the Wrongs Act, and is not the Wrongs Act a point at which we should be entering this debate?

MR WHITINGTON:   We are content to enter the debate through the Wrongs Act.

HAYNE J:   Is it not the correct point of entry?

MR WHITINGTON:   Yes, it is, although we say it does not take the matter very far.

KIRBY J:   It was suggested on the special leave hearing that the Wrongs Act followed the decision in Zaluzna and that it was designed in a sense to incorporate in the statute law the principles of Wyong Shire Council v Shirt.  Is that the history of how it came about in South Australia, or not?

MR WHITINGTON:   That appears to be so.  The first second reading speech was made, I think, within a few days after the delivery of the decision in Zaluzna.  That suggests that the legislation was introduced in the first instance in anticipation of a decision in that case without necessarily knowing what it might be and the provisions themselves reflect the broad outcome in Zaluzna in that the Act provided and provides that the occupier’s liability shall be determined according to the law of negligence generally, in other words, not according to any specific category of entry.

HAYNE J:   The propositions you have been advancing seem to be directed to questions of standard of care, the kind dealt with in 17C(2) and references to whether householders can or cannot hold garage sales and the like provoke the question, how do you relate this to what is said in 17C?  If that is the point to start, can we begin there?

MR WHITINGTON:   Yes, can I take the Court to – does the Court have the Wrongs Act available to it, section 17C. I should tell the Court that has now become section 20 of the Civil Liability Act 1936. We start in subsection (1) which provides:

Subject to this Part, the liability of the occupier of the premises for injury, damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence.

So we say that is a broad and open-ended provision that attracts the law of negligence in its full scope and to the extent that the law of negligence applies principles and rules for the determination and assessment of both a duty of care and the scope of that duty.  Those common law principles and rules are attracted by section 17C(1) and then subsection (2) goes on to stipulate a number of considerations relevant to the standard of care.

So we say that the section follows a conventional scheme in this area of the law of negligence, that is, it assumes that the law of negligence will supply the definition for duty and the scope of the duty.  In a case of standard there are certain matters which must be taken into account.  They are those stipulated in paragraphs (a) through to (g) and by and large they represent an adumbration of the Wyong Shire factors and then paragraph (h) says:

any other matter that the court thinks relevant.

HAYNE J:   But (3) says doing nothing can, in some circumstances, be an available outcome.

MR WHITINGTON:   Yes.

HAYNE J:   If you are pitching your argument at the level of standard, as I understand it, you accept there is a duty - whether you call it scope of duty or standard of care may be playing with words - what is it that you say flows from (2) that is relevant for your case?  Anything?

MR WHITINGTON:   Can I answer that in two parts?  We do emphasise scope of duty and we say that is a consideration anterior to standard and we say that the scope of duty here does not extend to taking action to eliminate or reduce risks of injury arising from ordinary or commonplace conditions which an ordinary entrant should see and avoid.  We say that the case can be decided at that level, because here the relevant condition was both obvious and commonplace and, therefore, any ordinary person exercising ordinary care for their own welfare would have either discerned it or would have anticipated it.  That is at the first level. 

The case can also be decided, as your Honour Justice Hayne puts to us, at the level of standard.  At the level of standard the factors in section 17C(2) must be addressed.  But again we would say, taking into account either the broad obligations of a householder or taking into account some heightened obligation by reference to this particular occasion, reasonable care did not require the defendant householder to do anything.  Now, we, of course, heard your Honour Justice Kirby say that a householder could have put some sort of mat down, which ‑ ‑ ‑

KIRBY J:   Well, as I understand it, and perhaps you can help me with the facts, the table with the attractive goods that were in this garage sale was within a meter of the divide of the concrete.  Is that so?

MR WHITINGTON:   I think it might have been a little more than that, your Honour, but I will take your Honour to the evidence and the photographs in a moment.

KIRBY J:   The suggestion is that that thereby creates a diversion of the eye of the stranger from the danger which you knew or ought to have known in accordance with the paragraph (e).

MR WHITINGTON:   Yes, but, of course, there was no evidence in this case of a diversion in that sense.

KIRBY J:   But we do not leave our common sense outside.  These cases used to be decided by juries all the time, everyday, and if you put the goods on the table, especially given that you have invited the public without discrimination on to the property, then there is the risk that a person, an old person, a person with poor eyesight is going to come in and look at the table and not notice this divide on your concrete.

MR WHITINGTON:   Well, there are a number of responses to that, your Honour.  First, the plaintiff’s evidence was that the goods were on the ground not on a table and yet the case appears either to have gone off on the basis of the defendant’s evidence that the goods were on a table.  So that diminishes any suggestion that there was any relevant distraction for the plaintiff. 

KIRBY J:   Well, the fact that they are on the ground does not mean that it is not relevant.  It is just that she is looking somewhere else rather than at the divide in the concrete.

MR WHITINGTON:   Well, it tends to dilute the finding that she would have had her attention distracted by goods on a table.  That is the first proposition.  Secondly, to get to the table she had to walk up the driveway and it was self-evident that it contained an expansion joint and it was obvious that there was a gap or drop in that expansion joint.  The third response I would make to your Honour is that, as your Honour says, these matters are often decided by juries.  It is an obvious jury fact that we do not walk looking at our feet.  We walk looking ahead of ourselves and the plaintiff had already come to the point where she fell obviously by the time she fell.   She had had ample opportunity to survey the scene as she walked up and traversed the driveway.

KIRBY J:   But this is all lifting contributory negligence into the duty and standard of care.  This is a very common mistake.  It is true that an occupier can take into account the fact that people will take reasonable care of their own safety and look about them and so on, but we have to be a bit careful that we do not put the last step into the first step, and it is happening all the time.

MR WHITINGTON:   But, with respect, your Honour, the first step is ‑ ‑ ‑

KIRBY J:   People are saying because you have not looked out, no duty, no standard, end of problem.  It is turning the law of negligence on its head.

MR WHITINGTON:   But the law of negligence starts with the question, what does reasonable care require?  Now, if reasonable care permits a householder to expect or assume that another person will take ordinary care for themselves when walking, then at the threshold no question of negligence of that defendant can arise.

KIRBY J:   Well, that is where you have to convince me.  I mean, you may convince everyone else, but I have to be convinced, because you are the person who knows your concrete better than others.  You put an advertisement in The Trading Post, you invite the public at large without discrimination, you invite them and you put out all the goods you want to sell, you have an economic interest to gain, and all you have to do is put a piece of lino or mat down to stop people falling in the gap.  I mean, it is not all that unreasonable, and that was what the law of negligence has been for 30 years.

MR WHITINGTON:   Well, this case then raises the question whether that has wider implications for a householder.

KIRBY J:   Big deal to put a mat or a piece of lino down – very, big, wide implications.  It has implications for the duty we as neighbours owe to each other. 

MR WHITINGTON:   Yes, but it also has implications for home owners and whether they can afford the risk of visitation, because if we are right in submitting that this was no more than ordinary visitation, then the implications are that on the other 365 days of the year, and in respect of all other entrants, similar obligations will arise.

KIRBY J:   Not at all.  The relationship is different.  You invited the public at large for economic purposes.  I mean, if what you say is right in this case, then we may as well pack up the householders’ liability policies because there is just no liability, and then the insurance companies will have to face that consequence.

MR WHITINGTON:   What we are putting is that there is no liability because there was no duty, alternatively there was no breach in a case where the condition which creates the risk is both obvious and commonplace and the sort of thing that people encounter everyday.  In other words, the question is whether the law says it is fair to expect somebody to walk down the road, or across a field, or anywhere else in the world on a daily basis and accommodate, negotiate common irregularities and undulations which ordinarily would not cause any difficulty.

KIRBY J:   But the relationship is different.  The standard of care is different, because this is a person who is just coming upon your property.  The present is a case where you have positively invited the world at large to come upon your property for economic interests of your own.  All that is asked is that you do a relatively minor thing to take care of the people who come into your property.  It is not a big ask.

MR WHITINGTON:   But, your Honour, as I said, there are two elements there.  As to the world at large, people in ordinary life frequently invite the world at large in one way or another onto their properties.  Now, if that is to be the discriminating factor, that will be a real inhibition to social intercourse.  If then the discriminating factor is the element of economic activity, this is such a trivial aspect of economic activity that we say it should not colour the circumstances because where does one draw the line then?  As I say, do you draw the line at a barbecue which has the raffle for the football club?  Do you draw the line at advertising a car for sale? 

I mean, on every one of these occasions is it necessary for the householder to audit their property and inspect for minor irregularities and take action against the remote possibility that somebody will not have proper regard for their own care, will, through inadvertence or negligence, slip or stumble.  We say that is what the majority decision entails.

Now, could I take the Court to the evidence to indicate where the description of the plaintiff’s accident is to be found, first of all, in the appeal book at page 17 starting at line 32 in the transcript and over to – the critical passage is really at 37:

I was crossing and walking from the left to the right because something caught my eye and suddenly just my foot twist on the other side because as I was walking across, not side way . . . 

Yes and this is where my foot turned underneath, twisted or whatever you call and I touched the ground and I picked myself up.

And then again at line 26 she said:

A.One foot was on the left hand side that is the left foot, the right foot was on the right hand side of the driveway, that is some kind of a level thing difference.

Q.When you say level difference was the left foot on the higher than the right level.

A.Left was on a higher level, the right foot was on the lower level . . . 

A.       My foot was on the right hand side on the sunken side.

So she is explaining that her right foot straddled the expansion joint.

KIRBY J:   In the old days this would have been – in Indermaur v Dames days this was a hidden danger or trap.

MR WHITINGTON:   Well, your Honour ‑ ‑ ‑

KIRBY J:   When you and I, or certainly I, were growing up, we learned Indermaur v Dames.  This was a trap.

MR WHITINGTON:   It might depend upon one’s social experience, I suppose.  I will show the Court the photographs in a moment, but coming from ‑ ‑ ‑

GLEESON CJ:   Only someone with a very narrow social experience would expect all footpaths to be completely level.

MR WHITINGTON:   Yes, and certainly in this city, when I was growing up, it was a very common thing to lay concrete driveways and include expansion joints and later to see them deteriorating to an extent through natural forces and ‑ ‑ ‑

KIRBY J:   But for a woman with high‑heeled shoes coming onto the property this was a trap, was it not?

MR WHITINGTON:   I am not sure the woman had high‑heeled shoes.

GLEESON CJ:   High‑heeled shoes, flip‑flops.

MR WHITINGTON:   She had flip‑flops, I thought, a kind of open sandal shoes.

KIRBY J:   No, but we have to look at this in the general.

MR WHITINGTON:   Well, with respect, your Honour, we say no.  We say you have to look at the duty to the individual plaintiff.  We accept that ‑ ‑ ‑

KIRBY J:   But for the standard and duty of care you look at the general, do you not?

MR WHITINGTON:   No, we say that the duty is owed ‑ ‑ ‑

KIRBY J:   What can be expected of you when you invite the whole public into the property.

MR WHITINGTON:   Yes, but the duty is owed to the individual plaintiff.  Now, of course, an invitation ‑ ‑ ‑

KIRBY J:   That is at the level of breach.

MR WHITINGTON:   Sorry?

KIRBY J:   That is a little later down the track.  You have to take this in steps.

MR WHITINGTON:   Yes, but there is a duty of care owed at large, but when the duty is to be employed in a given case, one does not assess the duty and the standard for the purpose of a breach by reference to somebody with qualities other than the plaintiff.  We accept, for instance, a blind person might have answered the invitation and attended and fallen, but that is not these facts.  A householder is entitled ‑ ‑ ‑

CALLINAN J:   It is hardly a trap.  I am looking at page 170.  It was at the joint, was it not, where she tripped and fell?  Is that right?

MR WHITINGTON:   Yes.

CALLINAN J:   Well, you can see it.  You can see the joint.  It was a clear day, was it not?  The weather was fine, it was daylight.

HAYNE J:   Travelling at a moderate speed with the headlights on probably as well.

MR WHITINGTON:   Could I take the Court, first of all, to page ‑ ‑ ‑

CALLINAN J:   No, but is that right at page 170, a reasonable reflection of the conditions at the time and what you could see in the driveway?

MR WHITINGTON:   The photographs at page 170 were attached to a report of an expert witness, Mr Maddern.

CALLINAN J:   Yes, but they are a true reflection of what you could see?

MR WHITINGTON:   They were adduced by the plaintiff, but there is another one, your Honour, at page 137A ‑ ‑ ‑

KIRBY J:   That was the one I was looking at.

HAYNE J:   The best the plaintiff’s expert could do was at 157 and 158.  That is the best from the plaintiff’s point of view of this trap, is it?

MR WHITINGTON:   Yes, it is.

HAYNE J:   What is the distance in millimetres?

MR WHITINGTON:   It is 10 to 12 millimetres, about half an inch.

KIRBY J:   The proof of the pudding is in what happened to the respondent.  She suffered a fracture.

GLEESON CJ:   Mr Whitington, there was also – and I just mention it for the purpose of excluding if it is irrelevant – but there was also a hole, was there not, somewhere?

MR WHITINGTON:   There is a drain, drain cover, your Honour, that for some reason people focused on, but it is irrelevant.  If your Honour goes to page 158.

GLEESON CJ:   Yes, I was going to ask you, what was the relevance of that?

MR WHITINGTON:   None, except the expert in his report suggested that there are other areas that he regarded as traps, if you like, or dangers, but that was a kind of gratuitous comment because nothing turned on them except perhaps to indicate the general state and condition of the driveway.

CALLINAN J:   I would have thought that half of the driveways in suburban Australia would have been laid by the householder himself, not professionally.  I certainly helped my father lay ours, and not very professionally, I might say, but you could see the gaps ‑ ‑ ‑

KIRBY J:   I do not think Justice Callinan would have had garage sales, but if he did, he has to take care for his neighbour.

CALLINAN J:   None of my neighbours were ever injured.

GLEESON CJ:   The neighbours would have an earlier problem getting past ‑ ‑ ‑

KIRBY J:   If there is a wild dog there ‑ ‑ ‑

MR WHITINGTON:   I will not seek to develop the question of personal experience of garage sales and what might be in them, but could I ‑ ‑ ‑

GLEESON CJ:   It would be a very intrepid person who would go to a garage sale at that place.

MR WHITINGTON:   Could I quickly traverse the photographs so the Court has a brief understanding of where they fit in.  There are photographs at pages 135 through to 137.  They are referred to in the evidence at page 45 and 101 to 103.  They were taken by the defendant on the day, and as for 137, the four crosses were marked on the exhibit by the plaintiff.

GLEESON CJ:   Well, 135 is not unimportant, is it?  It seems to suggest that on the footpath running in front of the house – and presumably that is the local council’s responsibility – there is the sort of irregularity that you see in ordinary suburban footpaths.

MR WHITINGTON:   Exactly, your Honour, and your Honour sees that better at page 139, which is part of exhibit D4.  These were taken about a month to six weeks after the accident by an investigator on behalf of the defendant, but your Honour sees the same features but more clearly there.

KIRBY J:   Yes, but she did not fall on the footpath and, at least in my current understanding, there would be a different obligation of the footpath authority than there is of a person with a small curtilage.  Queen’s Counsel may own huge estates and large houses with large footpath areas within them, but ordinary people have only a small confined space and if they invite the public into them, the old law from 1932 was that you had to show care as for a neighbour, and if you had an economic interest you had to be particularly careful.

MR WHITINGTON:   There is another aspect though to this part of the driveway, apart from the identity of the party who created it or who was legally responsible for it, and that is the state and condition which is not dissimilar from the driveway proper on the defendant’s curtilage.

KIRBY J:   Well, if she had fallen there, she might have had a problem with the local authority following Ghantous, but she came into your property, a small area.  It is not asking you to do a lot to make the whole of the suburb safe.  You are asked to make your own property safe if you invite your neighbour onto it.

MR WHITINGTON:   There is an irony in this case, your Honour, in that it was the defendant’s evidence at trial that the plaintiff did in fact fall in this area, but that was not accepted.  So from the defendant’s point of view this was a Ghantous case, but I will put that to one side.

KIRBY J:   Well, it is an irrelevant irony, just put in for a little bit of prejudice.

MR WHITINGTON:   Yes, but, your Honour, the critical aspect of this feature is that if the plaintiff was not already on notice of a commonplace feature of the driveway, she was well and truly put on notice when she stepped out of her vehicle and walked over this very section of the part of the driveway that entered her property and crossed the footpath.

KIRBY J:   Had she been to the property before?

MR WHITINGTON:   No, she had not.

KIRBY J:   What was the extent of the evidence that your client was said to be an expert in garage sales?

MR WHITINGTON:   I think she had had two garage sales previously.

KIRBY J:   This was a little business.

MR WHITINGTON:   Well, it depends.  She was selling, if your Honour pleases, children’s toys, knick-knacks and a lazy boy.  That hardly seems like an invitation to the Myers summer sale at 7.30 in the morning.

KIRBY J:   But next you will be saying when you go to the butcher shop, “Well, you have just got to keep your eye open and there is no obligation there and you are all on your own.”  It is the selfishness of modern society, everybody is on their own.  There is no mutuality, no responsibility of the kind Lord Atkin talked of in Donoghue v Stevenson.  We live in a selfish society.  It has not been the law of negligence up until now.

MR WHITINGTON:   But the law of negligence has always involved an element of requiring plaintiffs to exercise a degree of responsibility for themselves.  The law of negligence has never been a law of strict liability.  It has always been a fault basis.

KIRBY J:   Of course, and it burdens them if they are found responsible for contributing to their own accident.  In this case a very high burden was imposed, 30 per cent.

MR WHITINGTON:   Now, I might just indicate one other feature of the photographic evidence.  It is at page 169, 169A I think in the Court book.  These were photographs provided to the plaintiff’s expert.  It is not clear by whom, but probably, the Court might infer, the plaintiff.  She apparently had marked on the photograph before they were provided to the expert and the three crosses one sees in photograph No 3, those crosses were intended to indicate her path in moving across the driveway towards where the goods were.  Your Honour Justice Kirby asked me something about the distance.  I am not sure the evidence is clear, but the two crosses on the right‑hand side of the driveway are intended to indicate where goods were located.  I think the ones that particularly took her interest were those under the carport.

Now, we submit that, as I said at the outset, this case is about walking, which is one of the most basic, common and necessary of human activities.  It is relevant that people are accustomed to walking across all manner of walking surfaces with all manner of irregularities and undulations.  They are practised at looking where they are going and encountering irregularities and, if they miss their step, recovering themselves usually without injury.

KIRBY J:   This is a 57‑year‑old woman who is looking for toys, no doubt, for a grandchild – when you are 57 your eyes are not as good as they were – and you have invited her onto your property for economic gain.

MR WHITINGTON:   And no doubt the plaintiff negotiated a similar pathway in her own premises when she left and a similar pathway or a council footpath that day or some other day, and on the roadway.

KIRBY J:   But she did that for her own purposes.  She did not have a relationship with herself.  Here she had a relationship with you.  You were her neighbour in biblical, metaphorical and legal terms.

MR WHITINGTON:   Yes.  We accept all of that.  The question is what that should entail in a case such as this.  Our first proposition is that in a case such as this, absent any suggestion of a garage sale, the consequence is that the duty should not extend to taking steps to eliminate obvious and commonplace hazards which people ordinarily can negotiate and avoid.  I do not want to be repetitive about that it but, with respect, we say that the garage sale does not alter the nature of the domestic use.

KIRBY J:   So you say that the fact that there was an advertisement in Trading Post, that you invited the world at large in, that you had an economic interest, impose no additional obligations on you over an ordinary householder?

MR WHITINGTON:   We do say that and ‑ ‑ ‑

KIRBY J:   You may be right, but if that is so then you are changing the law of negligence.

MR WHITINGTON:   We say in the alternative that even if some additional obligation was imposed by those circumstances, nonetheless, the response of the ordinary, reasonable householder in these circumstances would have been to do nothing because a condition ‑ ‑ ‑

KIRBY J:   Not even put a mat down?  Not even put a piece of lino or something on the ground to protect people?

MR WHITINGTON:   With hindsight, your Honour, that could have been done and with hindsight, had that been done, it may have prevented the accident but ‑ ‑ ‑

KIRBY J:   But we have to look at what the law is and what the standard of our community is and, therefore, you have to ask not with hindsight but prospectively, if you invite people in for economic purposes, at the world at large, does the law of Australia say you have to be a bit more careful, you have to give a bit of thought to accident prevention to old or older people who come onto your property?  That is the question.  It is the Braistina question.  This Court only 15 years ago said these things, merely 15 years.

MR WHITINGTON:   Your Honour, it is very easy to say one must look at the matter in prospect, but there must be a real discipline about that.  The court, at the question of assessing standard and breach, must actually put itself in the position of the defendant in advance and ask what a reasonable person in the position of the plaintiff would have done in respect of this particular condition.  We say that the obligation was only to take reasonable care.  The householder conducting a garage sale would still have considered that this was only a crack in an expansion joint, that people walked up and down the driveway every day, guests, the milkman, the postman, people from the Salvation Army who were coming to collect goods being given to them, people walked up and down the driveway every day.  Why should this particular occasion pose any special risk such as to call for ‑ ‑ ‑

KIRBY J:   A different relationship, non-economic relationship.  Not advertised in Trading Post.  You do not put an ad in the Trading Post for the Salvation Army.

MR WHITINGTON:   But, your Honour, that is almost imposing a punishment for somebody ‑ ‑ ‑

KIRBY J:   It is not a punishment; it is the duty and the scope of the duty.

MR WHITINGTON:   But it becomes punitive.

KIRBY J:   Not really.  You can take out insurance to protect yourself against this.  A goodly proportion of Australian households take out householder insurance and they turn their mind to what they have to do to people who enter their property.  Not a bad thing, either of those consequences.

MR WHITINGTON:   We would say in response, your Honour, that a goodly proportion of Australian householders are old and cannot afford insurance, are not in a position to conduct an audit of their property to clear every tree root, to remove every hump and bump but ‑ ‑ ‑

KIRBY J:   Your theory is a retreat into selfishness, a retreat into indifference to people who come in, at least people who come in with an economic relationship with you.  It is a new theory.

MR WHITINGTON:   We say it is not a retreat but, rather, a stand for what is a reasonable balance between ordinary domestic use of property and the risks to those who attend.  If one throws the balance too far and imposes too much of a burden on the householder, then many householders will not be able to afford the burden.  It is all very well to say people insure, but there are people in the community, your Honour, who cannot afford to insure.  There are people in the community whose only asset is their house. 

This judgment was $24,000.  That might not sound a lot in certain circles, but for a number of people, if they found that they had imposed upon them a judgment debt of $24,000 plus costs, that might mean the loss of their only asset, their house, and that would be a very significant thing, and simply because they did not attend to an audit of their property and smooth and grind the surface to the finish of a billiard table.  Now, we say that is a completely unrealistic position to portray ‑ ‑ ‑

KIRBY J:   A billiard table smoothness would be, but a piece of lino would not be.

MR WHITINGTON:   Well, that involves discerning in advance that some smoothing must take place, and if your Honour suggests that smoothing must take place for this day in these circumstances, it is our submission that it would follow that smoothing ought to take place in respect of every other day of the week and every other occasion.

KIRBY J:   Different relationships.

MR WHITINGTON:   Now, I indicated to the Court what we say is the appropriate scope of duty.  W say, therefore, that the conclusion of Chief Justice Doyle at paragraph 21 of his reasons and Justice Besanko at paragraph 34 as to the duty of care of an occupier of domestic premises is the right analysis and is the one which this Court should adopt.

I have made a number of the points we wanted to make about the nature and consequence of the duty as the Full Court has formulated it in exchange with your Honour Justice Kirby.  There is one other point we would want to make and that is this, that if the matter was assessed at the level of duty and scope rather than standard, it avoids the inevitable tendency that arises for a standard to be seen as the obverse of breach and then for cases to be decided in reverse order with the benefit of hindsight.  There was a breach, the accident could have been avoided, therefore there must have been a breach of duty, therefore there must have been a duty.  If the principle is stated at the level of duty and scope of duty, that tendency is minimised.

Can I come to Justice Gray’s approach.  It is not clear whether he and Justice Nyland, who agreed with him, assessed the duty at the general level of the Zalunza duty and then proceeded to standard of care, or whether they approached the matter in the way I think your Honour Justice Kirby approaches it, and that is to say that there might be a different or higher duty of care ordained by the particular occasion, that is the garage sale.

KIRBY J:   Justice Gray set out in terms the Wrongs Act, did he not?

MR WHITINGTON:   Yes, he did.

KIRBY J:   In terms of legal principle, given that the South Australian Parliament has spoken on this subject, the starting point, as Justice Hayne pointed out, is the Wrongs Act.

MR WHITINGTON:   We accept that, but that then begs a number of questions.

KIRBY J:   Well, it does refer to the age of the plaintiff and various other things of that kind.

MR WHITINGTON:   It does, but we say it ‑ ‑ ‑

HAYNE J:   Critically, for your argument, it refers in paragraph (g) to:

the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn –

Practicability is not in issue, is it?

MR WHITINGTON:   No, it is not.

HAYNE J:   The question becomes one of is it reasonable to eliminate, reduce or warn.

MR WHITINGTON:   Yes.

HAYNE J:   Let us focus for a moment on warning.  The text of the warning, as I understand your side of the case, would be, “My driveway is as uneven as most other driveways”.

MR WHITINGTON:   Yes.

HAYNE J:   That may perhaps reflect back on what it is reasonable to do.

MR WHITINGTON:   Precisely.

HAYNE J:   Now, the other side will no doubt have some other formulation but, as I understand it, your case boils down to that proposition, does it not, namely that it is not reasonable to do anything about it because the driveway is as uneven as most other driveways in suburban Adelaide?

MR WHITINGTON:   Yes, it does, but it comes down to that at two levels; that is the only rider I would put to that.  His Honour Justice Gray posed a number of possibilities in terms of section 17C.  He spoke of a warning, but in his case the warning involved standing sentinels on the driveway to utter an oral warning, which we say is completely unrealistic.

KIRBY J:   I may be wrong, but I read that as his saying that there could be a sign or that those who were selling the goods would say something to the effect, “Watch out” or “Watch your step”.  That is how I read what his Honour was saying, not sentinels.  I mean, they are not centurions from Ancient Rome.

MR WHITINGTON:   Well, he did suggest at one point that people might have been stationed in the driveway to utter a warning.  But if I can take up Justice Hayne’s point, it does beg the question, what would the warning have been and what utility would there have been in it?  If it were to be a long and detailed warning, then nobody would read it, and of course there were issues of literacy.  I do not know whether this particular plaintiff read English – certainly English was not her natural language.  Is one expected to anticipate people speaking any manner of languages and have interpreters?  If the warning is to be a bland, broad warning that simply says “Warning” or “Warning, driveway has cracks”, it is really saying no more than is obvious and self-evident in any event.

KIRBY J:   She did not give her evidence through an interpreter, so I do not think we have to go into too much exotica. 

MR WHITINGTON:   No, but ‑ ‑ ‑

KIRBY J:   All that I understand on the warning basis is either (a) a sign “Watch your step” or (b) a warning by those who were selling the goods, “Look out”, “Be careful”, “Watch your step”.  That is what I took Justice Gray to be saying.  But there are other precautions that can be taken, as I have already mentioned.

MR WHITINGTON:   Yes.  The magistrate postulated that the crack could have been painted.

KIRBY J:   Just putting a mat or something in front of the table is not a big ask.

MR WHITINGTON:   This did not occur in front of the table.  The expansion joint ran the whole length of the driveway.

KIRBY J:   I realise that, but the fall and the likely distraction is when you get near the goods.

MR WHITINGTON:   But, your Honour, the height differential ran, according to the evidence, along the length of the expansion joint; that is the first thing.  Secondly, there is a presumption that distraction played some part in this, and there was no clear evidence of any real distraction.

KIRBY J:   She said, “Something caught my eye”.

MR WHITINGTON:   She said, “The goods caught my eye and I moved across”, but she moved across ‑ ‑ ‑

KIRBY J:   It is at the top of page 18, “something caught my eye”.

MR WHITINGTON:   That is right.  But, your Honour, the question is what one means by a distraction.  She had walked up the driveway to that point, no doubt looking at it and assessing it, as one ordinarily does, when walking.  She was already at the point where she twisted her foot or stumbled when something caught her eye.  Now, she had had the opportunity to make her assessment up to that point.  As I said earlier, it is an ordinary jury proposition that one does not walk around looking at one’s feet.  It is completely unreasonable to suggest that the goods distracted her from looking down at her feet at the very point where she twisted her foot.

There were other proposed precautions which we say are equally unrealistic.  One I think the magistrate suggested was to barricade the area of the expansion joint, but again we would say that is not a reasonable precaution either and it is not one that any reasonable householder would have thought necessary in the context of this particular occasion.

Now, could I just briefly touch on a couple of points made in the respondent’s argument.  Unlike your Honour Justice Kirby, the respondent appears to accept that a garage sale is a normal and common use of a domestic property.  They appear to accept that in their written submissions but ‑ ‑ ‑

KIRBY J:   I do not disagree that it is a normal activity.  I have never conducted a garage sale myself, but I have seen them advertised, even in Rose Bay in Sydney, but that does not mean that that establishes the relationship.  A relationship is established by your having a commercial interest in it.  This is a well-settled law and doctrine.  It raises the obligations.  Maybe I am just a relic of earlier doctrine, but this is well‑settled.  We have the category in Calin v Greater Union Theatres of the duty when you buy a ticket, and you ask why is there that different separate category of Watson v George.  It is because there is an economic interest and therefore people will have a higher duty for that reason.

MR WHITINGTON:   I think that might be the category of contractual entrant, which is still unsettled, but as for other categories of entrant ‑ ‑ ‑

KIRBY J:   It is not unsettled in this Court.  Calin and Watson v George settle it.  It is not unsettled at all.

MR WHITINGTON:   But out of the run of ordinary invitees who were, if you like, treated ‑ ‑ ‑

KIRBY J:   No, this is after Braistina.  It is a separate category.  The reason I have Calin here, you look and it is because of the commercial interest.  People who have a commercial interest in an entrant have to take a bit more care.

MR WHITINGTON:   I think that may be a case for contractual entrant, an entrant under contractual right, which we say on accepted principles is a different case.

KIRBY J:   It is an implied contractual entrant, is it not?

MR WHITINGTON:   In this case?

KIRBY J:   There is an implied contract here:  you come into my property, buy my goods and I will give you reasonable protection coming onto the property.

MR WHITINGTON:   With respect, on ordinary accepted doctrine it is a case of a mere licensee, or possibly an invitee.

GLEESON CJ:   Well, since Zalunza we deal with it on general principles, of which the key element is reasonableness.

MR WHITINGTON:   Yes.

KIRBY J:   Calin was after Zalunza.

GLEESON CJ:   Now, I think you have covered that point.

MR WHITINGTON:   I have.  Can I make the point that the respondent appears in submissions to make the discriminating factor turn not on the commercial nature of the garage sale, but on the fact that the display of goods was said to be created with the intention or the objective of distracting the plaintiff.  Now, we say some things may turn on that, then our submissions about distraction and otherwise apply. 

The respondent next submits that our argument makes no allowance for inadvertence on the part of the defendant.  We say that is not an accurate characterisation of our submission.  The possibility of inadvertence or negligence on the part of the plaintiff is a factor which remains to be weighed in the scales at the standard and breach level, if one gets there.  Ordinarily, where a hazard is not to be regarded as obvious or commonplace, then inadvertence or negligence on the part of a plaintiff will have no relevance to the duty question.  It remains a factor to be weighed in the standard of care question, or at least it might be relevant to contributory negligence.  But where, as in this case, the risk is to be characterised as obvious or commonplace, then the circumstances are such that inadvertence or negligence on the part of the plaintiff is in effect to be visited on the plaintiff because there is no obligation on the defendant to make allowance for such conduct.

KIRBY J:   But sometimes the more obvious the risk the more the obligation on the defendant to do something about it.  It is now very obvious that cigarettes cause illness and yet you could not say that because that is obvious that the cigarette manufacturers, even if there were not statutory obligations to do so, do not have to warn people.

MR WHITINGTON:   We accept that, and our learned friends refer in this context to March v Stramare and McLean v Tedman, to Webb, all cases familiar to this Court.  They might also have referred to Nagle v Rottnest Island Authority.  But the point about those cases is that there the defendant did something to create or increase the risk such that any act of inadvertence by the plaintiff would see the risk realised.  This is not such a case, if our analysis is correct.

The third broad submission that the respondent makes against us is that they emphasise the degree of control that we had in relation to what they call the hazard in this case.  Now, we accept that as an owner and occupier of property we do have a degree of control.  The analysis of the respondent is true as far as it goes, but it break downs in the present case because we say that the issue of control really only has force in the case of one‑off, out of the ordinary hazards.  The proposition does not have force in respect of a myriad of minor irregularities in a property which are obvious and which an entrant might be expected reasonably to negotiate.  In those circumstances, there is a real dilution of the concept of control and in effect there is a substantial equality of knowledge and capacity to avoid the risk.

We say also that it is misleading to compare, as the respondent appears to do, the householder’s typical quarter acre block with the large areas of public land under the control of a local authority because, viewed from the householder’s perspective, an obligation to attend to all these kind of minor conditions can be just as onerous, relatively, as the obligation on an authority with control over a larger area.

Perhaps the final point I should make by way of response to what the respondent has said is that there appears to be a submission that section 17C of the Wrongs Act precludes a “scope of duty” analysis and it may be that Justice Gray essayed the same proposition at paragraph 109 of his reasons.  For the reasons I have already addressed, we say it is plain that section 17C does not preclude a “scope of duty” analysis.  Subsection (1) permits the court to address the question of duty at large. 

I think that is all I want to say specifically in response to the respondent’s written submissions.  They are our submissions, if the Court pleases.

GLEESON CJ:   Thank you, Mr Whitington.  Yes, Mr Walsh.

MR WALSH:   If the Court pleases.  By way of summary our propositions are these.  Firstly, the applicable law at the date of the accident was the law of negligence, section 17C(1); secondly, having regard to all the matters referred to under the heading of “standard of care” in section 17C(2); with the exclusion next of conflicting common law principles, section 17E, that at the time of promulgation of this section, Parliament adopted the common law as it was at that date and in a sense codified it, but I do not put too much store on that concept.  It was only Justice Gray in the majority that approached the case against the background that we say is applicable when considering the decisions of the Court in Ghantous and Brodie.

Justice Besanko alone concluded that Ghantous applied to cases other than statutory highway authorities.  Neither Justice Besanko nor Chief Justice Doyle focus on the significance of section 17E, whereas, in our respectful submission, the majority did.  Next, to approach the matter from the perspective of the scope of duty and to emphasise those factors that influenced this Court in Ghantous and Brodie and, for example, in Modbury Triangle is to ignore that this case is quite different.  It is not a case of a statutory authority with inherent policy considerations.  It is not a case of a lack of control or lack of knowledge, as in the case of Modbury Triangle.

Further next, to assume that a limited inquiry as to obviousness, commonness of hazard and then to view it against what the reasonable person might do to avoid risk without more in effect has emasculated section 17C and also section 27A(3) as to contributory negligence.  Next, the Court has continued to approve of its decision in Safeway Stores v Zaluzna save in a special case of statutory authorities.  That is the case of course of Ghantous and Brodie.  Next, the correct approach is first to determine obviously whether there was a duty of care having regard to factors such as (1) the relationship between the parties; (2) aspects of control; and (3) any other policy considerations.

In the present case there was a duty having regard to (1) the relationship between the plaintiff and the defendant – and that is clear on the facts of the case, namely that the plaintiff was invited to enter the premises for a quasi‑commercial purpose; (2) there was a risk of injury due to the state of the paving of which the defendant knew or ought to have known which was foreseeable and it was not a fanciful risk, it was a risk, as one would perceive it to be, in the context of the law as it stood before the introduction of the Wrongs Act.  Next, the defendant was in a position of control and could easily have removed or obviated the danger.

The next point we make is that there was a breach of duty because (1) a reasonable person would foresee a risk of injury to the class of persons which included the plaintiff; (2) a reasonable person would have avoided that risk by taking one of a number of simple, costless or very low cost actions, for example, placing the table over what was a limited section of danger in the paving, not, as asserted by my friend, continuous but limited in a particular area.

Next, having regard to each of the matters referred to in section 17C, the conclusion of the magistrate and the conclusion of the majority in the Full Court was correct.  As to any other issues raised by my learned friends, naturally of course an insurer or defendant promotes the fear of the floodgate approach, what might happen to the ordinary homeowner, but where is the evidence of that in the past?  People have owned homes for centuries, people have owned homes since the introduction of the concept of negligence.  Why should owners of homes not be subjected to some increased scrutiny if they choose to introduce some additional activity such as a commercial activity? 

For example, if you have a home office and people are invited to come to your home office, that is a commonplace occurrence.  Planning laws deal with that sort of occurrence in the context of homes and residences.  Home owners have ready access to insurance.  That much is very well known, home…..policies and the like.  Home owners using premises for quasi‑commercial purposes are best able to apply a commonsense approach to protect entrants from additional risks because of their activity.  They know their homes, they know the risks and they know how to avoid using common sense.

Can I then deal with a few of the factual circumstances and then deal with each of those propositions.

HAYNE J:   Just before you do, there has been a deal of emphasis in argument on the commercial or quasi‑commercial nature of the activity.  Is a distinction to be drawn between the case of a householder holding a garage sale inviting people to come on for commercial gain and the case of the householder who, for example, holds a gathering at the home for parents of the school which precisely the same number of people come to the gathering as are attracted by the goods on display at the garage sale?

MR WALSH:   Yes, there can be, with respect, your Honour.  The distinction is simply this, that in the case of the garage sale there will be a critical circumstance potentially where people will be deliberately in a sense distracted to the goods and the proximity, only the proximity at that point, or in that general vicinity if there is a danger, then that is something which the home owner can easily deal with.  In the case of the gathering, the people will come up the driveway and they will, as they do on the local government footpath, of course be uninterrupted in their care for their own safety.  They will probably go through the backyard or to the front entrance into the home and that will be ‑ ‑ ‑

HAYNE J:   That suggests the point of distinction is distraction.

MR WALSH:   Indeed.

HAYNE J:   One can readily imagine a non-commercial activity at which the same number of people come up the driveway but for non‑commercial purposes.

MR WALSH:   It is a combination of the circumstance, namely the commercial nature, because the type of distraction is very specific.  The type of distraction of course that we all have when we walk into premises of a residential kind or any kind is one at large of course.  We accept that but there is a distinction.

HAYNE J:   Do you accept that this driveway was as uneven as many other driveways in suburban Adelaide?

MR WALSH:   At the particular point where there was unevenness, that could occur in many driveways; we accept that.

GLEESON CJ:   I do not understand it to have been suggested that the negligence of the defendant lay in the failure to repair the driveway.

MR WALSH:   No, it is not, not at all, your Honour.  Can I just turn briefly to some of the facts before I turn then to the Wrongs Act.  Firstly, the photo that my learned friend took you to – and this is at page 158 – illustrates that as one goes towards that car but comes back again that it is not a continuation of the raised level all the way through.  It is in a particular section and it might be noted that somewhere in the position of its greatest heart it would seem that is where the plaintiff fell.

Secondly, it must be remembered this is a photo of the danger, the hazard, specifically facing the lip or the difference in height and the unevenness.  It must be remembered that the plaintiff on this occasion came from the other side.  Photographs are always known to at least lie to some extent and it may be that looking at this photo of course it might appear fairly obvious, but that does not mean it was necessarily obvious in the overall context of the plaintiff’s entrance into that driveway.

That is illustrated by firstly – and I will not take you to the evidence, I will give you the passage references – at page 33 point 13, she did not see the unevenness before the incident; next, page 37 point 22, when she was walking up the goods caught her eye and she decided to walk across to look.  So my learned friend had put an argument that she had an opportunity to see, but of course the goods caught her eye and she decided to walk over and have a look.  Next, at page 24 point 14 she said there were six to eight people there looking through the goods.  Next, at page 53 ‑ ‑ ‑

CALLINAN J:   All of whom safely proceeded up the driveway.

MR WALSH:   Indeed they may have because they fortunately walked in a slightly different path. 

KIRBY J:   Can you at some time describe the mechanics of how the fracture occurred to your client.

MR WALSH:   Yes, it was a rollover of the foot.  Dr Stevenson, who gave evidence, called it a common type of injury to the foot, presumably where people do that sort of thing.  I do not suggest that the commonness should be given any great weight.  It simply was an injury involving a rollover of the foot with a fracture of the bone in this case.  So there was a hazard and it did cause an injury and it was a fracture, it was not a twist of the ankle.

Next she said in 53 below point 26 that she did not notice the gaps between the slabs because she was walking on the left side and did not notice a gap running up the middle.  Next, we refer you just in brief to the evidence of Mr Maddern, who was an engineer who gave evidence.  He said at 59 point 24 that there was a risk because of the fact that the pavements were the same colour.  At 60 point 18 they could have avoided by various ways.  His evidence was one of a process of analysis of the way in which we walk and how it is that incidents of this kind can occur.  We do not place too much store on the evidence of Mr Maddern but it is there and it is of assistance in some ways.  In terms of the trestle table evidence, it is the evidence of Ms T. Neindorf at page 89 point 7, a trestle table at hip height. 

Finally, in relation to the defendant, she said at 97 point 1 that she had had three garage sales beforehand.  What really was not explored in relation to the three garage sales, which I think were over a period of about two years, was the fact that this sale was a moving sale, it was called.  In other words, they were moving from the home, so it was probably a little bit more adventurous than a normal garage sale in the sense that they were moving and they wanted to be able to sell excess goods that they did not want to take with them and, we say, to make a monetary gain.

If I may, I would turn then to the Wrongs Act and, as it was then, Wrongs Act 1936 if the Court has that, in particular section 17C.  I will not read subsection (1) again; it has been referred to by my friend.  Subsection (2):

In determining the standard of care to be exercised . . . a court shall take into account –

(a)      the nature and extent of the premises –

this was a domestic premises and not much more needs to be said about that part of the inquiry –

(b)      the nature and extent of the danger arising from the state or condition of the premises –

and the danger was one that was created in the present circumstances by the proximity of the static condition which it was to the goods that were displayed –

(c)      the circumstances in which the person alleged to have suffered injury, damage or loss, or the property of that person, became exposed to that danger –

the circumstances are that the plaintiff was an entrant who had been encouraged to come to the defendant’s home by way of the advertisement for a purpose of commercial gain from the perspective of the defendant and the circumstances that the alleged suffered injury occurred when the plaintiff’s foot came on top of the unevenness at a critical point close to the goods that were displayed.  Next:

(d)      the age of the person alleged to have suffered injury, damage or loss –

She was a lady of 57 years of age, so she was not a young child or a person who was of younger years and might be expected to cope better with unevenness of this kind.  Next:

(e)      the extent (if at all) to which the occupier was aware, or ought to have been aware, of –

(i)       the danger; and

(ii)      the entry of persons onto the premises –

All of the judges found that she was either aware or ought to have been aware.  There is no doubt about that and that is not contested.  As to the extent to which she should have been aware of the entry of persons, of course the defendant was expecting a number of people to come through to that very specific area under the carport and in the vicinity of that danger.

(f)       the measures (if any) taken to eliminate, reduce or warn against the danger –

none –

(g)      the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger –

very easy to do so ‑ ‑ ‑

GLEESON CJ:   What specifically do you have in mind?

MR WALSH:   Your Honour, you could have simply put the table over the section where the raised paving was, in other words, allow the people to go round in a circle around the table – simple as that.  Common sense would have provided a number of potential solutions.  If there was a particular reason why the defendant might have wanted the goods to be displayed particularly in the way they were – and nothing was put forward by the defendant ‑ ‑ ‑

GLEESON CJ:   Would that not have just relocated the danger?  Was there not a raised paving all the way from when you get out of your car till the time you get to the carport?

MR WALSH:   No, that is not my understanding of the evidence, your Honour.  There is a section of raised paving and it illustrates that when you – and we do not have the photo on the way back, but it levels off, for example, underneath where the car is in that photo at 158.

KIRBY J:   Where is the evidence that supports that proposition?

MR WALSH:   Merely the photo, your Honour.  There is very little evidence apart from the photo as to the length of that raised area.

GLEESON CJ:   I am just looking at the photograph, for example, on page 137.  Does that not show a gap?

MR WALSH:   Yes, of course.  There is no doubt that there was a gap.  One might call that an expansion gap or whatever it might be, but there is a difference or distinction between a gap and then unevenness.

GLEESON CJ:   Is not what happened that her flip‑flops got caught in the ‑ ‑ ‑

MR WALSH:   Her foot rolled over, your Honour.

GLEESON CJ:   Are flip-flops what are sometimes called thongs?

MR WALSH:   Yes, I think that is the ‑ ‑ ‑

GLEESON CJ:   So there was nothing in her footwear that gave her foot any support?

MR WALSH:   No, your Honour.  It was not high heels or heels or anything of that kind.  We acknowledge that, your Honour, but relevant of course to the duty of care or the scope or the standard is always going to be that you have to expect some people might.  But in any event, this lady did not.  Any other matters that the Court thinks relevant? 

If the appellant is correct in its submissions that you should look at this from the perspective of the scope of the duty of care, then that would, as they seek to do, limit the inquiry in terms of what the court should have regard to.  The court would not look at all the matters referred to in section 17C(2).  The court would merely look to the obviousness of the danger, so they say, the fact that it was commonplace and ordinary use of premises, and that a plaintiff could take care for that person’s own safety.

In the present case, if that were so, it would leave no room for contributory negligence because that comes later.  Next, it would make no difference potentially if the absolute statement made by my friends is correct if the defendant even knew of an earlier incident.  It does not matter because that person was not taking care for their own safety also, so it is irrelevant at the question of scope, but that must lead to no incentive to remove.  More people are injured.

On the other hand, if my learned friend focuses, as they do, on the question of the obviousness of the danger, you are only liable if it is a hidden danger then, going back to earlier concepts pre‑Zalunza.  It is only if someone knew of it, namely the defendant knew of it, that they would then be liable.  So it is understandable that of course the appellant would seek to encourage this Court to focus on scope but where there are no policy considerations, as there are in the case of councils, and in doing so would, we say, have the effect ‑ ‑ ‑

KIRBY J:   Two policy considerations were mentioned and they were that many people are not insured and that if they are not insured, $20,000 plus costs is a very significant burden.  We have to lay down the law irrespective of insurance for all and sundry householders.

MR WALSH:   Quite so.

GLEESON CJ:   And the people who cannot afford insurance are also likely to be the kind of people whose houses have more uneven surfaces than others.

MR WALSH:   It is surprising, given that the law is as it is, and we have had an inquiry of some considerable magnitude in relation to issues of public liability, that people are not screaming out for relief for people who are homeowners.  That is the first comment.  The second comment is that we as homeowners or people in the community are at risk of claims against us in many different ways.  As soon as we walk out of our premises, if we negligently run into an old lady or into a cyclist or whatever, we are at risk.  We are not insured necessarily.  So there will always be occasions for people in the community to be at risk.

Thirdly, my learned friend says if there is an issue of people who are without insurance, there is no evidence that has been put to the Court as to what is the cost of insurance or the incidence of insurance and the like.  So one way or another, those policy decisions ought not, in our respectful submission, as they did in Ghantous and Brodie, cause this Court to require a focus on the scope which would effectively mean that unless a person was taking care for their safety, they would have no claim.  Of course, if they were fully taking care for their safety, that would avoid any question of looking at the criteria of section 17C(2) and in addition it would avoid the question of contributory negligence which is referred to also in the Wrongs Act.  I will take you just briefly to that, section 27A(3):

Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage –

Built into the concept of taking care for oneself in the context of the scope is that you are not guilty of contributory negligence and therefore the claim would be defeated if you were, and that is directly contrary to section 27A(3).

KIRBY J:   We all know that that language was chosen because it was reversing the previous common law that the smallest element of contributory negligence deprived the plaintiff of recovery.

MR WALSH:   Absolutely, your Honour.  That is the historical background but that is the fact of what the legislature says.  Can I just take you back very briefly to a couple of other points relating to section 17.  Section 17C(3) provides – and we acknowledge that this is a safeguard to owners:

The fact that an occupier has not taken any measures to eliminate, reduce or warn against a danger arising from the state or condition of premises does not necessarily show that the occupier has failed to exercise a reasonable standard of care.

We acknowledge that, but there are clear circumstances here to justify a conclusion there was a breach of the standard for the reasons previously put.  Next, in subsection (4) it should be noted that:

Subject to any Act or law to the contrary, an occupier’s duty of care may be reduced or excluded by contract but no contractual reduction or exclusion of the duty affects the rights of a person who is a stranger to the contract.

People can protect themselves with respect to entrants if they choose to, if they do not want to take any risk.  Finally, section 17E:

(1)      Subject to subsection (2), the Part operates to the exclusion of any other principles on which liability for injury, damage or loss attributable to the state or condition of premises would, but for this Part, be determined in tort.

We accept that that was probably looking at the context of what the law was before Zaluzna’s Case but nevertheless it speaks for itself in the context of what we say is the intention of Parliament here, namely that when one is looking at incidents of this kind, unless there is some good reason to modify the scope, you will have regard to all the matters in section 17C to fairly assess whether there has been a breach of duty and, if there is contributory negligence, then that will be taken into account.

KIRBY J:   Since the plaintiff’s injury, has the State of South Australia adopted a Civil Liability Act which restricts further the liability of defendants in these circumstances?

MR WALSH:   It has, your Honour, yes.  Can I take you to that because it may be important that you know some of the sections that exist now because of course you are looking at the law as it is today as much as it is at the point of time that this incident occurred.

KIRBY J:   It may throw light on what Parliament assumed section 17B(2)(e) provided.

MR WALSH:   I am not sure I can help you with that, but I had intended to take you to the Civil Liability Act and it may be useful to do that now.  It did not apply of course to the circumstances at the time.  If you turn to ‑ ‑ ‑

HEYDON J:   Do you have any spare copies?

GLEESON CJ:   What is the title of the Act?  The Civil Liability Act what year?

MR WALSH:   2005, your Honour, it came into force.

KIRBY J:   This has followed the Ipp Report, did it?

MR WALSH:   It did, your Honour.  Can I just for the benefit of your Honours highlight the fact that the various Civil Liability Acts or Wrongs Act in the various States post‑the Ipp Report are quite different in many respects.  Unfortunately, this Court seeks to create uniformity in the area of the law of negligence.  But if you turn to the various Civil Liability Acts, there are considerable differences between them.

GLEESON CJ:   Yes, but what is the point that you make of relevance to this case?  I am sorry, you told us it was the Civil Liability Act 2005.  We have just been handed the Civil Liability Act 1936.

KIRBY J:   It gives an air of venerable antiquity to these provisions.

GLEESON CJ:   All I want to know is what is the title of the Act just for a start.  It has some words in the name and a date.  What is it?

MR WALSH:   Civil Liability Act 1936.

GLEESON CJ:   Thank you.

KIRBY J:   This is basically the Wrongs Act renamed and a lot of provisions are different.

MR WALSH:   Indeed, yes.  I am sorry, your Honour, I apologise.

GLEESON CJ:   Does the Civil Liability Act 1936 in its present form result from some amending legislation that was enacted in 2005?

MR WALSH:   Yes, it came into force in 2005 but I should mention to your Honours that there were some changes of some substance in other respects in 2001 whilst it was still called the Wrongs Act and then it became the Civil Liability Act in 2005 and that was formerly the Wrongs Act but with some further amendments subsequent to the Ipp Report.

GLEESON CJ:   Before we pursue the detail of that, could you state in a summary form what is the point of relevance to this appeal that you take from that recent legislation?

MR WALSH:   Specifically none but we merely refer to it because it might be important when you are looking at the global question of the question of scope versus breach – standard of care and matters of that kind.

GLEESON CJ:   Is it relevant to any submission you have to make in support of the judgments in this appeal?

MR WALSH:   We accept that it is not specifically relevant, your Honour.  We accept that, but we merely alert your Honours to the fact that it exists and that there are sections that change the position as it was previously.

KIRBY J:   Is there a transitional provision in the amending Act that preserves the rights of your client?

MR WALSH:   Yes, your Honours.  I can say to your Honours it simply does not apply to the circumstance.

KIRBY J:   We had better have a look at that because this is supervening legislation and otherwise we have to sort out whether it applies or not.  If there is a provision in the schedule which preserves the position of the people who are already affected by the old law we had better have a reference to that.

MR WALSH: Yes. I do not want to labour this point. Can I merely just refer very briefly to the sections which you may care to look at. Firstly, in the interpretation section, section 3, “contributory negligence” is defined. “Negligence” is defined. Section 20 deals with “Occupier’s duty of care” and is the same as it previously was. Section 22 is the former section 17E. The standard of care is dealt with in section 31. That is at large. Precautions against risk are referred to in section 32.

KIRBY J:   We do not have any of these sections.  I do not, anyway.

GLEESON CJ:   You are suggesting you are relevant, are you?

MR WALSH:   No, your Honour, no, I am not.

GLEESON CJ:   Why are you telling us about this?

MR WALSH:   I will not take the matter any further.  I was merely highlighting that at the present time the law is quite different to that which was applicable at the time.

GLEESON CJ:   Yes.

MR WALSH:   If the Court pleases, the next proposition that we put to the Court is that in the present case his Honour Justice Gray’s analysis of the position under the Wrongs Act was correct.  I will not take you to all of that, save that in paragraphs 80 onwards of his Honour Justice Gray’s decision he refers to the legislation.  He then refers to the second reading speech and of interest in the second reading speech is a reference to the fact that the position of the owner of a home with a backyard is quite different to that of the position associated with a large landholding and an incident occurring in a small corner of that and what Parliament was anticipating was that in the case of the home owner of course they are in a much better position to control the circumstances and those things which might present a risk to people who enter on to their premises.

Doyle CJ in paragraph 21 does not refer to section 17E specifically.  Justice Besanko – paragraph 18, page 195, refers to it but does not analyse the position as Justice Gray did.  The next point we make, if the Court pleases, is that when one turns to the decision of Doyle CJ which appears in the book at page 220, paragraph 33, after analysing the circumstances, his Honour had this to say:

It needs to be borne in mind that if a duty of care is imposed in respect of such a hazard –

this one –

it applies to each and every hazard on those parts of private property where visitors can reasonably be anticipated.  Removing or neutralising all such hazards could be a significant burden on the occupier of a property.  It would be an ongoing task.

It is this factor that makes me incline against finding that Ms Niendorf owed a duty of care to Ms Junkovic in respect of the hazard.

The difficulty with that conclusion is that it is not, on the plaintiff’s case, and it is not in this Court, our assertion that there has to be some audit of all the imperfections in a property.  This is a particular circumstance which was added on to or superimposed upon a static condition of a property which then created a particular localised danger.

My learned friends, of course, seize upon the assertion that there must be an audit or that it is going to be an intolerable burden on home owners to deal with the simple issue and that is simply not the case.  If it is looked at in that light it may well be that his Honour Chief Justice Doyle may not have reached the conclusion that he did because that was the determining feature in his decision.

His Honour Justice Gray, on the other hand, commencing at paragraphs 104 at page 243 of the appeal book in dealing with the issues – I will not read through that.  Your Honours will note that his Honour was careful to deal with each of the respective issues in this case that one can match up, ultimately, with section 17C(2) and why it was that the conclusion should be in accordance with the finding of the learned magistrate.

We point out, of course, that in this case the role of this Court, as was identified in Fox v Percy is not to undertake a rehearing but of course to determine whether the majority in the appeal court were wrong.  In our respectful submission, if one bothers to go through, as we have, section 17C(2) there is very little merit in the appellant’s case because when one looks at the answers to each of the questions that are raised the answer is quite tolerably clear.

It is simply not a case of imposing an unwarranted burden on home owners, as has been suggested by the appellant.  There are some cases that illustrate the issue of distraction.  Webb v South Australia and…..in the context of local government authorities is a case about distraction.  There was nothing dangerous, per se, about the condition of the kerbing in Webb.  What was dangerous was that somebody distracted as they were getting on to a bus might suffer injury, as indeed happened.

There are other cases where, for example, a pedestrian running over a footbridge in a park, running towards a train at night time, again, no one would quarrel with the conclusion that there was liability in that case because of the additional distraction which should have been foreseen by the Council in that case.

In the case of private premises, and it is pretty hard to find a lot of them, there was a decision of Avanes v Club Marconi [2003] NSWCA 84. There a pedestrian fell on a path at night time. The kerb height had been reduced for wheelchairs, and a slope, and there was no lighting and one could understand there because there was a change in the circumstances that

there was liability.  In ACT v Badcock (2000) 69 ALR 585 a pedestrian was injured in a car park. There there were some raised paving blocks. The court observed the pedestrian is not required to be permanently looking out at the ground ahead and finding liability in referring to Webb’s Case.

KIRBY J:   These are simply decisions on their own facts.  I really deprecate the use of factual analogies in these cases.  You just have to decide each case.

MR WALSH:   Yes.  The only reason we refer to it is to highlight the fact that each case will be determined on its own facts, that there is not a case for alarm as seems to be suggested by the appellant, alarm to the community.  There is no cause for alarm in the community.  We emphasise that it is not going to be every hazard on every part of the defendant’s property that is going to have to be identified.  It is only a very minor scope, in terms of the inquiry by the defendants.

If the Court pleases, I would have to be repeating what is in our outline of argument to say any more, and I notice the time.  My learned junior has one matter he wants to draw to my attention.  If the Court pleases, unless there is anything else, they are my submissions.

GLEESON CJ:   Thank you, Mr Walsh.  Yes, Mr Whitington.

MR WHITINGTON:   Two very minor points of evidence, if the Court pleases.  My learned friend referred to Mr Maddern’s evidence on the question of risk.  I would simply note that he was the expert Justice Besanko at paragraph 45, appeal book 202, said that that evidence on that topic was not admissible and that appears to have been accepted on appeal and so we say that no use can be made of Mr Maddern’s evidence in that respect.

CALLINAN J:   Was it objected to?

MR WHITINGTON:   Yes, it was.

CALLINAN J:   At the trial?

MR WHITINGTON:   It was objected to at trial, yes.  It was taken to have been…..I think, over the objection, if your Honour pleases.

KIRBY J:   In the Full Court it was ignored, was it?

MR WHITINGTON:   It was ignored in the Full Court, yes, and so we say resort cannot be had to it now for the purpose of this appeal.  The other point I wanted to make specifically arises from an inquiry of your Honour the Chief Justice about the evidence as to the extent of the imperfection in the expansion joint.  There is evidence of a factual nature in Mr Maddern’s evidence at page 64 of the appeal book, lines 24 to 31 where he appears to suggest that the differential and height extends beyond the area where the plaintiff fell and there is further evidence on that topic in his evidence‑in‑chief at appeal book 58, lines 22 to 27.

KIRBY J:   I should say, Mr Whitington, I have just looked at that paragraph 45 in Mr Besanko’s reasons and it does not seem to exclude the evidence entirely.  It says:

Some of his evidence, such as his observations of physical features was probably admissible –

but that he could not give evidence as to the risk or danger.  In other words, he could not usurp the function of the court.  That was the matter for the court to decide on the evidence.  So it is not quite as broad as you suggest it is.

MR WHITINGTON:   No, I do not intend to take it any further than that ruling but my learned friend did invite the Court’s attention to the evidence of Mr Maddern on the topic of risk or danger and all I am saying is whatever that ruling might entail certainly its heart is the rejection of evidence going to risk and danger and my learned friend purported to rely on that and I do not seek to make any more of it than that.

KIRBY J:   Justice Gray does not seem to have referred to Mr Maddern.

MR WHITINGTON:   No, he did not.  My learned junior advises me that that aspect of Justice Besanko’s decision, as he recalls it, was the subject of the notice of appeal by the present respondent.  It is not clear whether the point was ever agitated on appeal but certainly it was not dealt with and we say that is where the matter lies in this Court.

KIRBY J:   I am sorry, I interrupted you.  You said you had a third point.

MR WHITINGTON:   The third point simply was to take issue with my learned friend’s characterisation of the case Webb v State of South Australia as not involving anything dangerous, that there was an object or an item which was not ordinarily to be expected.  It was a one‑off installation of a false kerb.  It was not something naturally occurring.  It represented a risk to somebody hurrying which had been created by the defendant, so it was quite a different case.

KIRBY J:   I will only say once again, different relationship.

MR WHITINGTON:   I will not seek to have the last word, if the Court pleases.

GLEESON CJ:   Thank you, Mr Whitington.  We will reserve our decision in this matter.  We will adjourn for a short time to reconstitute.

AT 12.38 PM THE MATTER WAS ADJOURNED