Pinker v Shire of Boddington - [2023] WADC 47

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   PINKER -v- SHIRE OF BODDINGTON [2023] WADC 47
CORAM:   BARBAGALLO DCJ
HEARD:   26-28 MAY 2021
DELIVERED          :   26 APRIL 2023
FILE NO/S:   CIV 4521 of 2018
BETWEEN:   HEATHER DAWN PINKER
Plaintiff
AND
SHIRE OF BODDINGTON
Defendant

Catchwords:

Torts - Negligence - Occupiers' liability - Guest injured in caravan park negotiating concrete ridge - Obvious risk - Standard of care

Legislation:

Civil Liability Act 2002 (WA), Pt 1A div 4, s 5E, s 5F, Pt 1A div 6, s 5, s 5B, s 6M ‑ s 5P
Occupiers' Liability Act 1985 (WA), s 4, s 5(1), s 5(4)

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff	:	Mr R D McCabe
Defendant	:	Mr G P Bourhill SC

Solicitors:

Plaintiff	:	Peninsula Personal Injury Lawyers
Defendant	:	Jackson McDonald

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

Allied Pumps Pty Ltd v Hooker [2020] WASCA 72
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512
Cox v Fellows [2013] NSWCA 206
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Homestyle Pty Ltd v Perrozzi [2007] WASCA 16
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Keven Gors by his Plenary Administrator Janet Christine Gors v Tomlinson [2020] WASCA 164
Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1
Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2012] QCA 315; [2013] 1 QD R 319
Murphy v Burnett Shire Council [2006] QDC 20
Nikolich v Webb [2020] WASCA 169
Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103
Shire of Manjimup v Cheetham [2010] WASCA 225
Town of Port Hedland v Reece William Hodder by next friend Elaine Georgina Hodder (No 2) [2012] WASCA 212; (2012) 43 WAR 383
Wyong Shire Council v Shirt (1980) 146 CLR 40

BARBAGALLO DCJ:

Introduction

On 13 February 2016, the plaintiff, Ms Heather Dawn Pinker, suffered an ankle injury whilst a guest at the Boddington Caravan Park (the Caravan Park) in Boddington. The Caravan Park was occupied by the defendant, Boddington Shire Council. The plaintiff claims that the defendant is liable for her ankle injury and has pleaded a claim in common law negligence and/or pursuant to the Occupiers' Liability Act 1985 (WA) (the OLA) and/or the Civil Liability Act 2002 (WA) (the CLA).
Prior to the commencement of the trial, the parties agreed quantum by reason of the plaintiff's injury. The trial proceeded on the issue of liability only.
The defendant admits that it was the occupier of the Caravan Park and that it owed the plaintiff, a guest at the Caravan Park, a duty of care. However, the defendant denies that it has breached this duty of care.

Documents & submissions

Both parties filed various documents and made oral and written submissions which formed part of the material relevant to this decision. That material includes the following:
1.Writ of summons dated 3 December 2018.
2.The plaintiff's statement of claim dated 12 April 2019.
3.The plaintiff's written outline of opening submissions dated 3 May 2021.
4.Amended defence dated 20 May 2021.
5.The defendant's written outline of opening submissions dated 20 May 2021.
6.The plaintiff's oral opening address made on 26 May 2021
7.The defendant's oral opening address made on 26 May 2021.
8.The defendant's oral closing address made on 28 May 2021.
9.The plaintiff's oral closing address made on 28 May 2021.

The evidence at trial

The evidence at trial was relatively short in compass.
The plaintiff gave evidence at the trial and called one witness, her husband, Mr Robert Hodgkinson.
The defendant called two witnesses who gave evidence at the trial. The first witness was Mr Derek Marshall. Mr Marshall and his wife Christine Marshall were joint caretakers of the Caravan Park at the relevant time[1] and were familiar with the entire area of the Caravan Park.[2] The second witness, Mr Peter Haas, was employed by the defendant and was the person directly responsible for the operation of the Caravan Park at the relevant time.[3]
[1] ts 118 - ts 119.
[2] ts 119.
[3] ts 147.
The evidence was largely non-contentious.

Lead up to the incident

At the time of the incident, the plaintiff was 59 years of age[4] and Mr Hodgkinson was 64 years of age.[5]
[4] ts 42.
[5] ts 84.
The Caravan Park was located at 32 Wuraming Avenue, Boddington and accommodated a wide range of guests from all sections of the community. Guests stayed at the Caravan Park for various lengths of time.
This was the first time the plaintiff and her husband were guests at the Caravan Park. They intended to stay one night after attending the Boddington Blues Festival (the Festival).
At approximately 1.30 pm on 13 February 2016, the plaintiff, and her husband arrived at the Caravan Park.[6] They were checked in at the reception area by Ms Christine Marshall. Ms Marshall provided them with a mud map of the Caravan Park.[7] This map was marked up (in yellow) by Ms Marshall to show the location of the plaintiff's caravan site (number 19), the route to the caravan site from the reception area and the location of park facilities.[8] The plaintiff and her husband then drove to their caravan site, parked and set up the caravan for their overnight stay.[9] At about 5.00 pm, the plaintiff and her husband noticed people walking from the Caravan Park toward the Festival.[10]
[6] ts 42.
[7] Exhibit P4; ts 76, ts 86.
[8] ts 43 - ts 44, ts 86, ts 125.
[9] ts 86.
[10] ts 46.
The entrance to the Festival was at the Old School oval located a few hundred metres from the Caravan Park along Wuraming Avenue. The two locations were directly connected by, and accessible to, pedestrians by a public use concrete footpath.
The weather at all relevant times was fine.[11]
[11] ts 83.
The plaintiff and her husband left their caravan somewhere between 5.30 pm and 6.00 pm[12] and walked to the Festival. It was still daylight and visibility was good.[13] They each took with them a fold up chair and a torch.[14] The plaintiff was wearing thongs[15] and carried with her a bag that slung over her shoulder.[16] Both the plaintiff and Mr Hodgkinson explained that they walked the same route they saw other people taking to the Festival.[17] The plaintiff marked up on a map the route that she and her husband took to get to the Festival.[18] She stated that she was not aware of another exit point from the Caravan Park to walk to the Festival. It did not occur to her to exit the Caravan Park at the main entrance (where the reception was located) as that exit was in the opposite direction to where the Festival was being held.
[12] ts 46.
[13] ts 46.
[14] ts 89, ts 47.
[15] ts 47.
[16] ts 47.
[17] ts 48, ts 90.
[18] Exhibit P5.
The route the plaintiff and Mr Hodgkinson took to the Festival involved walking a short distance from their caravan site number 19 to a well‑worn dirt path. This path took them through a garden bed area and over a concrete ridge within the Caravan Park area to join up with the public use concrete footpath. This footpath provided direct access to the Festival.
This concrete ridge is the location where the plaintiff injured her left ankle a few hours later on her return journey to the Caravan Park from the Festival.
The plaintiff described how she negotiated the concrete ridge on her way to the Festival. She said that she walked between two posts [19] as she passed over the concrete ridge. When asked to explain the process of her stepping out onto the footpath, she replied:[20]
Well, don't recall it specifically. We just sort of walked along and I would have had to have stepped onto it (the concrete ridge) and not over it because I wouldn't have … Well, it was too wide to just step straight over. It was, you know, about 40 cm or so wide. I wouldn't have liked to have stepped right over it in one go.
[19] ts 61.
[20] ts 62 - ts 63.
The plaintiff also said that she would have been holding onto a post[21] because 'you're stepping over a [concrete ridge], you've got a post there to hold on, you know, you want to try and get over there as easily as possible'.[22] In cross-examination, the plaintiff said that she does not recall whether she would have stepped right over the concrete ridge or stepped on top of it but she seriously doubts that she stepped over it as it would have been too wide.[23] She accepted that she does not recall encountering any difficulty stepping onto the concrete ridge and then onto the public use concrete footpath.[24] The plaintiff accepted that the concrete ridge was wide enough to place her foot on.[25] She also described the concrete ridge as quite rough, although smoother on the top than on the sides.[26]
[21] ts 63.
[22] ts 63.
[23] ts 80.
[24] ts 80.
[25] ts 81.
[26] ts 83.
Mr Hodgkinson said that this concrete ridge was one that you had to step on and step over.[27]
[27] ts 90.
After successfully negotiating the concrete ridge, the plaintiff and Mr Hodgkinson continued walking on the public use concrete footpath to the Festival.[28]
[28] Exhibit P22.
The plaintiff and Mr Hodgkinson stayed at the Festival for about four hours.[29] During this time, the plaintiff believes she drank between one and three glasses of wine. The defendant does not rely on the plaintiff's consumption of alcohol as a matter to be taken into account when determining liability. When they left the Festival, the plaintiff and Mr Hodgkinson retraced their steps and took the same route to return to the Caravan Park. It was dark and they each used a torch to luminate the path to see clearly on their way back to the Caravan Park.[30] The plaintiff does not rely on the state of lighting in the area as a matter to be taken into account when determining liability. As she walked back to the Caravan Park, the plaintiff had a little bag slung over her shoulder. She also carried a fold up chair which was tucked up under her left arm and held a little LED torch in her right hand.

Negotiating the concrete ridge - the fall

[29] ts 71, ts 89.

[30] ts 71.

As the plaintiff negotiated the concrete ridge, she fell and injured her ankle. The circumstances of her fall have been the subject of contention in this trial. I will return to these circumstances shortly.
The following morning, Mr Hodgkinson informed the Caravan Park caretakers of the plaintiff's fall and injury as she negotiated the concrete ridge.[31]

The concrete ridge

[31] ts 105 - ts 106.

The shape, size and location of the concrete ridge are not in dispute and have not altered in any significant way since it was installed in late 2010. The concrete ridge - sometimes referred to as concrete mound or concrete lump in the written material and during the trial - has been described in various ways. It is best depicted as it was on 13 February 2016 in a series of photographs which were tendered in evidence.[32] For the sake of ease, attached are photographs of the concrete ridge.
•Exhibit D3 - taken on 15 February 2016.
•Exhibits P8 - taken on 5 June 2019.
•Exhibit P13 - taken on 16 February 2016.
•Exhibit P25 - taken on 24 June 2019.
[32] Exhibits D3 - D6 (inclusive), exhibits P8 - P10 (inclusive), exhibit P13, exhibit P25, exhibit P28.
The concrete ridge was a continuous ridge of concrete that ran parallel and close to, but separated from the edge of the public use concrete footpath. There were two wooden posts - one taller than the other - embedded vertically in the concrete ridge, approximately one metre apart. The concrete ridge extended out horizontally in opposite directions beyond both wooden posts. The height of the concrete ridge, taken from both sides of the ridge as between the posts, was 30 cm and the width of the concrete ridge was about one metre.
As one looks at the concrete ridge from Wuraming Avenue facing the Caravan Park, the smaller wooden post was on the right and the taller wooden post was on the left. There was no chain or orange bunting between the two wooden posts. It was as the plaintiff negotiated the concrete ridge, between those two wooden posts when she fell and was injured.
There was a chain attached to, and extending outward from the smaller post towards the Caravan Park sign. This chain continued for some distance across what appeared to be a dead-end road in the Caravan Park. Mr Marshall understood that the chain was placed across this roadway to stop vehicles and bicycles using the road as a thoroughfare.[33] There were no signs on, along or referrable to the chain indicating the purpose of the chain or to whom it was directed.
[33] ts 120, ts 139.
There was also orange bunting close, but not attached, to the taller wooden post. This bunting extended outwards in the opposite direction to the chain. The orange bunting runs parallel to, but largely in between, both the public use concrete footpath and the concrete ridge.
Mr Marshall's evidence was that he put the orange bunting and concrete blocks in that location in or about September or October 2015[34] to prevent people from falling off the path and into a hole created by the Water Corporation.[35]

Utility of the concrete ridge

[34] ts 119 - ts 120.

[35] ts 119.

The concrete ridge was installed in approximately September or October 2010 using leftover concrete from capital works. The utility of the concrete ridge was the subject of some contention at trial.
Mr Haas' evidence was that the concrete ridge was installed at that location to create a boundary for the Caravan Park area.[36] This was contrary to the defendant's answer to an interrogatory where it asserted that the concrete ridge was to prevent people from driving their vehicles, including bikes, through the Caravan Park to access the river.[37]
[36] ts 150 - ts 151.
[37] Defendant's answers to interrogatories, 1(b) and 1(d).
Mr Marshall was not working at the Caravan Park at the time that the concrete ridge was installed. His evidence was that he had been told by someone else or others that the concrete ridge was constructed to stop vehicles and bicycles driving through the area.[38]
[38] ts 138.
The costs of constructing the concrete ridge in or about late 2010 was in the vicinity of $7,000.[39] The two wooden posts were already in the ground at the time the concrete ridge was constructed.[40]
[39] ts 165.
[40] ts 168.
Prior to the plaintiff's incident, Mr Haas said that he was not aware that the pathway on which the concrete ridge was located was used as an accessway by guests of the Caravan Park. Conversely, Mr Marshall knew that although the area was not designed as an accessway, it was used as such by guests of the Caravan Park.[41]

History of incidents concerning the concrete ridge

[41] ts 130.

Mr Haas gave evidence that prior to the plaintiff's incident, he had no memory of any other incident or complaint regarding the concrete ridge since its installation in late 2010.[42] Mr Marshall gave similar evidence for the time he was the caretaker.[43] Apart from their memory on this issue, they also both relied on the defendant's system of recording incidents or complaints that was in place at the time. They relied on this system as evidence that the defendant had not received notice of any incidents or complaints regarding the concrete ridge since its installation.
[42] ts 152
[43] ts 141
The reporting process for a complaint or incident at the Caravan Park appears to be as follows:
1.A matter would first be reported or brought to the attention of the Caravan Park caretaker, for example, by a guest.
2.If the Caravan Park caretaker was unable to deal with the incident or complaint, then they would bring the matter to the attention of Mr Haas for him to deal with.[44] Incident report forms were not available at the Caravan Park premises[45] but were available at the Shire offices which were some distance away from the Caravan Park.[46]

After the incident

[44] ts 152.

[45] ts 169.

[46] ts 133, ts 136.

Mr Marshall's evidence was that, within a day or two following the plaintiff's incident, he put orange bunting across the two wooden posts which blocked the accessway over the concrete ridge. The placement of this additional orange bunting can be seen in photographs taken on 16 February 2016.[47]
[47] Exhibits P12, P13, P16.
Sometime later, Mr Marshall put a chain across the two wooden posts. This can be seen in photographs taken in June 2019.[48] This process involved Mr Marshall cutting down the taller wooden post to the same size as the shorter wooden post.[49]
[48] Exhibit P25.
[49] ts 134.
Mr Haas accepted that it was not a significant expense to put up the extra orange bunting and chain blocking the accessway over the concrete ridge.[50]

Routes into the Caravan Park

[50] ts 184.

The Caravan Park is situated on land bordered by Wuraming Avenue on one side and the Hotham River on the other side.
The defendant's case was that there was no need for any guest of the Caravan Park to use the pathway taken by the plaintiff because there were other pathway options available including:[51]
1.entering the Caravan Park through the main gate;
2.entering the Caravan Park through the visitor carparking area near the ablutions block;
3.entering the Caravan Park along the foreshore on the Hotham River side;[52]
4.walking over or under the chain across the dead-end roadway which meets immediately up with the public use concrete footpath; and
5.walking from the telegraph pole next to a concrete pathway, continuing onwards between sites 35 and 36.
[51] ts 180.
[52] ts 152.
The first three entry points were marked by Mr Haas on a plan of the Caravan Park.[53]
[53] Exhibit D8.
Mr Marshall accepted that the map provided by Ms Marshall to the plaintiff and Mr Hodgkinson upon their arrival[54] showed only one entry and exit point to the Caravan Park and that was the main entry to the Caravan Park on Wuraming Avenue where one checks in and out of the reception area. This entry and exit point had a boom gate on it. As best as Mr Marshall can recall, the boom gate was operational at the time.[55]
[54] Exhibit P3.
[55] ts 125 - ts 126.
There was no evidence that there was any signage in or about the Caravan Park identifying any of these entry or exit points as identified in [42].
Mr Marshall and Mr Haas both accepted that, for any person walking from town along Wuraming Avenue to the Caravan Park, the first unobstructed access point to the Caravan Park was the accessway identified by the two timber posts embedded into the concrete ridge.[56]
[56] ts 129, ts 177.
Mr Haas agreed that the concrete ridge was an obstacle[57] that could interfere with a person's ability to move from the footpath to the Caravan Park. He agreed that somebody could trip over it if they walked over it[58] and could slip and fall if they slipped on top of it.[59] He agreed that if this area with the concrete ridge was an access point to the Caravan Park and if people were walking through it on a fairly regular basis, then it would be a hazard.[60] He acknowledged that if he knew this was happening, he would have considered it a hazard and put up extra orange bunting and a chain to prevent access by pedestrians.[61]
[57] ts 178.
[58] ts 180.
[59] ts 180.
[60] ts 181.
[61] ts 181.
Mr Marshall said that, after the plaintiff was injured, he put a chain joining the two posts to stop people from negotiating the concrete ridge. As a result, people no longer travelled through that area.[62]
[62] ts 143.

Approach to decision

The onus is on the plaintiff to establish, on the balance of probabilities that the defendant has breached its duty of care. Given the various issues raised in this trial which directly impact on my decision, I have determined that there are a number of questions to address as follows:
1.What was the nature of the risk of harm?
2.What were the factual circumstances of the plaintiff's fall?
3.Was the risk of harm an obvious one so that there was no duty to warn?
4.If there was no duty to warn, has the defendant otherwise breached the required standard of care, particularly considering:
(i)Whether the risk of harm posed by the concrete ridge was foreseeable.
(ii)Whether the risk of harm posed by the concrete ridge was not insignificant.
(ii)What was a reasonable response to guard against such harm.

What was the nature of the risk of harm?

The nature of the risk of harm was not identified in the statement of claim.
The nature of the risk of harm was first identified in the plaintiff's written outline of opening submissions as being 'a person losing their balance whilst stepping over [emphasis added] the concrete obstacle and sustaining injury upon falling to the ground'.[63] Expanding on this claim, the written opening submissions refer to the physical features of the concrete ridge, including its size and curved shape as creating a moderate risk of slipping or tripping and falling to the ground.[64]
[63] Plaintiff's outline of opening submissions dated 3 May 2021, par 19.
[64] Plaintiff's outline of opening submissions dated 3 May 2021, par 26.
In the oral opening address on behalf of the plaintiff, it was claimed evidence was to be given that the plaintiff stepped onto the concrete ridge and slipped from that position, injuring her ankle.[65] Again, expanding on this claim, the plaintiff's oral opening address refers to the curvature of, or some imperfection in, the concrete ridge that contributed to the plaintiff's fall.[66] This was particularised by claiming that 'variations in the width or the height of the tread or the landing also may increase that danger',[67] and labelling the design of the concrete ridge as 'hazardous'.[68] Importantly, during the course of the oral opening address made on behalf of the plaintiff, the nature of the risk of harm posed by this concrete ridge was identified as:[69]
Someone losing their balance, by whatever mechanism, whilst standing on or trying to go over the mound, by slipping, tripping, misjudging their step or their feet position, the risk of harm in that instance would be falling to the ground and impacting the ground causing injury.
[65] ts 23.
[66] ts 23.
[67] ts 27 - ts 28.
[68] ts 29.
[69] ts 28 - ts 29.
In the oral closing address on behalf of the plaintiff, the risk that this concrete ridge presented was asserted as including:
1.being of sufficient height that if someone were to come off it in an uncontrolled fall, they could suffer all manner of injuries; and
2.being a curved surface that would impact on the stability it would provide if one were to stand on it, particularly compared to a flat surface.
Finally, in the plaintiff's oral closing address, the risk of harm was claimed to have arisen in the process of negotiating that hazard - that is the need for people to step up on the concrete ridge - whether one trips or slips and suffering injury.[70]
[70] ts 241.
In support of its submissions, the plaintiff relies on Mr Haas' evidence as to the hazard created by the concrete ridge as concessions made on behalf of the defendant on this issue of the risk of harm.
The defendant submits that the plaintiff's failure to plead, and therefore, identify the nature of the risk of harm in the statement of claim is an important omission.[71] Notwithstanding such an omission, the defendant proceeded on the basis that the plaintiff's case is that the concrete ridge created a risk for a pedestrian who had to step over it or proceed past it, as they might lose their balance and fall. Therefore, the defendant should either:
1.not have put the concrete ridge there because it created that risk; or
2.should have roped or barricaded the concrete ridge.
[71] Nikolich v Webb [2020] WASCA 169.
The defendant asserts that the change in the particularisation of the risk of harm is a manifestation of the plaintiff’s uncertainty as to the circumstances in which she fell. Such uncertainty is fatal to the plaintiff's claim.
The defendant also highlights the lack of evidentiary support in respect of claims concerning any latent imperfections or variations in the concrete ridge.
As to the evidence of Mr Haas, the defendant asserts that such evidence is infected by hindsight bias and is not to be given any weight.
In my view, it is clear that the nature of the risk of harm varied considerably from the plaintiff's first stated position to the final position settled on. In this case, it does make a difference.
The plaintiff made claims about some of the physical features of the concrete ridge which are not supported by the evidence. Apart from the height, width, its obvious curved presentation and location, there was no direct or indirect evidence as to any latent imperfections or variations in the concrete ridge or how any of those features may affect the risk of harm. In any event, the plaintiff's evidence was that she does not recall encountering any difficulty stepping onto the ridge and then stepping off onto the path on her way to the Festival.[72] It would seem that the physical aspects of the concrete ridge were such that the plaintiff was able to safely step up, onto and off it without any apparent or perceived difficulty on her way to the Festival. That is not to say that the concrete ridge may possess some latent features which may affect the risk of harm, but there is no evidence of such features in this trial.
[72] ts 80.
I turn now to consider the change in the factual circumstances of the plaintiff's fall. The plaintiff initially claimed that she stepped over the concrete ridge and was injured during that activity. However, there is no evidence that she stepped over the concrete ridge, and that claim was abandoned prior to the commencement of the trial. The plaintiff's claim then changed to stepping onto the concrete ridge and falling from that position by some unknown and unparticularised mechanism. The factual circumstances of the plaintiff's fall and injury is a matter which I am required to determine and will address shortly.
As to the opinions expressed by Mr Haas regarding the hazardous nature of the concrete ridge, clearly his opinions are not conclusive or determinative of these issues. I am of the view that his opinions are likely to be ones given in hindsight and have given them little weight.
I have distilled that the nature of the risk of harm as submitted by the plaintiff is that a person, whilst negotiating the concrete ridge, that is, stepping up onto, and stepping down from it, and, by some mechanism falls to the ground and sustains an injury.

What were the factual circumstances of the plaintiff's fall?

The plaintiff and her husband gave evidence recalling the circumstances of the plaintiff's fall and injury to her ankle.

The plaintiff's evidence

The plaintiff recalls that when she arrived at the concrete ridge, she had a torch in her right hand.[73] She shone it in front of her enabling her to see clearly where she was going.[74] She also carried a folding chair under her left arm as she went to negotiate the concrete ridge.[75] She recalls that she reached up for the post with her right hand while holding in that same hand the torch and stepping up onto the ridge with one of her feet.[76] She said she cannot recall which foot she stepped up with but presumes it was her right foot as she generally leads with her right foot.[77] Her next memory was lying on the other side of the ridge[78] and feeling excruciating pain in her left ankle.[79] The plaintiff does not remember falling.[80] The plaintiff says she fell because she lost her balance.[81] In cross‑examination, she accepted that the top of the ridge was wide enough to place her foot on it.[82] Mr Hodgkinson then tried to help her up but she was unable to stand on her left ankle.

Mr Hodgkinson's evidence

[73] ts 73.

[74] ts 81.

[75] ts 71.

[76] ts 73.

[77] ts 73.

[78] ts 73.

[79] ts 73.

[80] ts 81.

[81] ts 81.

[82] ts 81.

Mr Hodgkinson recalls that as the plaintiff approached the concrete ridge, prior to her negotiating it, she passed him her fold up chair. He remembers that the plaintiff put her empty right hand on the top of the right-hand post before stepping up onto the concrete ridge with her right foot.[83] She then went to step down with her left foot and 'it was like her feet went out from underneath her and she went down'.[84] He saw the plaintiff come to rest on the Caravan Park side of the concrete ridge.[85] Mr Hodgkinson said that it all happened very quickly.[86]
[83] ts 102, ts 109 - ts 110.
[84] ts 102.
[85] ts 110.
[86] ts 110.
The plaintiff invites me to accept Mr Hodgkinson's evidence as to the factual circumstances of her fall. The plaintiff asserts that tripping and stumbling can be excluded.
The plaintiff submits that it is not necessary to have more direct or precise evidence of every element of the mechanism of the fall for the court to be satisfied on the balance of probabilities that this concrete ridge was at least a materially contributing factor to the set of conditions that resulted in the harm.
The defendant again highlights the change in the particularisation of the factual foundation of the plaintiff's claim, as amended from stepping over the concrete ridge to stepping on and down from the concrete ridge and falling. Such a variation is the result of the plaintiff's uncertainty as to the circumstances in which she fell.
In support of that submission, the defendant highlights the state of the plaintiff's evidence, both in examination‑in‑chief and in cross‑examination. The defendant asserts that the evidence reveals that she really did not have any recollection of the circumstances of her fall at the critical time. Her evidence being indicative of assumptions and recreations rather than a true memory of the incident.
The defendant asserts that even if it accepted that the plaintiff likely put her right foot onto the top of the ridge and that she suffered the injury in some manner on the far side of the ridge, it does not resolve what remains unknown.
The defendant submits that the precise movement or the precise physical activity that occurred between the plaintiff's right foot being on the concrete ridge and her ending up on the ground on the far side is completely unclear. In that regard, the defendant refers to Mr Hodgkinson's evidence that the plaintiff stepped up onto the concrete ridge with her right foot and his observation that her feet went out from underneath her. The defendant submits that if the plaintiff's feet slipped out from under her, she would have fallen backwards. Thus, where the plaintiff landed is not explained by any evidence before the court.
The defendant asserts that the lack of evidence and lack of clarity about the circumstances of the plaintiff's fall presents a real issue in proving her claim. The court cannot assess the plaintiff's claim or the risk the concrete ridge presented, or the reasonable response to that risk, where there is no evidence upon which the court can reliably determine the specific reason for the plaintiff's fall and consequent injury.
The plaintiff's claim that she lost her balance as a consequence of the concrete ridge having created the risk of her losing her balance, is akin to claiming that the fall must have been as a result of the concrete ridge. Such reasoning is flawed. The defendant submits that there are many things that create a risk for a person to lose their balance that do not result in a breach of a duty of care.
Before I determine the factual circumstances of the plaintiff's fall, I wish to say something about the manner in which the plaintiff's case has developed and changed between when the statement of claim was filed, when closing submissions were made by the plaintiff as to the findings I should make.
The statement of claim dated 12 April 2019, pleaded that the plaintiff 'stepped over [emphasis added] the concrete lump and as she placed her foot on the other side of the concrete lump, lost her balance and fell to the ground'. At trial on 26 May 2021, the plaintiff gave evidence that she could not recall if she provided those instructions to her lawyers and if she did provide those instructions to her lawyers, then it would simply be speculation on her part because she can now no longer recall.[87]
[87] ts 83.
The plaintiff's written outline of opening submissions asserts that she 'went over [emphasis added] the concrete obstacle and she lost her balance and fell heavily on her left foot'.[88]
[88] Plaintiff's written outline of opening submissions dated 3 May 2021, par 10.
At the very beginning of the plaintiff's oral opening address, counsel asserted that the plaintiff was negotiating the concrete ridge when she slipped as she stepped down from it, falling heavily onto her left foot and breaking her left ankle as a result.[89] Later in the plaintiff's oral opening address, counsel outlined the evidence that was expected to be given at trial. I have already made reference to the evidence given at trial. Counsel for the plaintiff claimed that the likely inference to be drawn from the expected evidence was that the plaintiff's foot slipped from the curvature or some imperfection on the ridge which contributed to her falling down.[90]
[89] ts 2.
[90] ts 23.
Ultimately, counsel for the plaintiff submitted that the court can exclude the suggestion that the plaintiff tripped or stumbled but rather she slipped and lost her balance whilst in the process of stepping down from the concrete ridge and fell.[91]
[91] ts 250, ts 252, ts 256.
In determining the factual circumstances of the plaintiff's fall, I have considered very carefully the evidence of the plaintiff and Mr Hodgkinson. I found both the plaintiff and Mr Hodgkinson to be honest witnesses. In determining their reliability, I have considered the circumstances in which this incident is said to have occurred and that is, unexpectedly and very quickly. Both the plaintiff and Mr Hodgkinson did their very best to recall the events of that night. Neither could articulate in precise terms as to how the plaintiff ended up on the ground. This is unsurprising. The plaintiff appears to have ended up on the ground before either of them realised or knew exactly what had happened. I accept that both the plaintiff and Mr Hodgkinson each provided honest, accurate and reliable evidence as to the many though not all aspects of this incident due to the unexpected and quick nature of the incident.
The factual findings I make are as follows.
When the plaintiff arrived at the concrete ridge, she handed her folding chair over to Mr Hodgkinson, freeing up her left hand. She retained the torch in her right hand. She used her right hand to support herself as she stepped up onto the concrete ridge with her right foot and placed her right foot on the top of the concrete ridge. The plaintiff was in the process of stepping down onto the ground with her left foot when she fell to the ground resulting in the injury to her ankle. Above and beyond those factual findings, I am unable to say either directly or inferentially whether the plaintiff:
1.slipped off the concrete ridge as she went to step down; or
2.misjudged the distance she had to lower her left foot to the ground; or
3.failed to move her weight from one foot to another as required to keep her balance; or
4.wearing thongs had any role to play in her falling to the ground.
That is the factual basis upon which I will proceed.

Was the risk of harm an obvious one so that there was no duty to warn?

The defendant claims that, if there is a risk, the risk was so obvious such that it did not have a duty of care to warn the plaintiff.[92]
[92] Amended defence, par 9(f), 9(g).
The law in respect of this issue is governed by the provisions of the CLA, particularly pt 1A, div 6 of the CLA which is headed 'Assumption of Risk'. It comprises s 5M - s 5P.
Section 5M defines 'obvious risk' to have the meaning given by s 5E. Section 5E defines 'obvious risk' to have the meaning given by s 5F. Sections 5E - s 5F are located in pt 1A, div 4 headed 'Recreational Activities'.
Section 5F provides as follows:
(1)For the purposes of this Division (Division 4), an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risk includes risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
Section 5N of the CLA, headed 'Injured person presumed to be aware of obvious risk' provides:
(1)In determining liability for damages for harm caused by the fault of a person, the person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.
(2)For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
Section 5O of the CLA, headed 'No duty to warn of obvious risk' provides:
(1)A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.
(2)This section does not apply if -
(a)the plaintiff has requested advice or information about the risk from the defendant; or
(b)the defendant is required by a written law to warn the plaintiff of the risk; or
(c)the defendant is a professional and the risk is a risk of harm to the plaintiff from the provision of a professional service by the defendant.
3.Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.
Section 5P of the CLA, headed 'No liability for harm from inherent risk' provides:
(1)A person (the defendant) is not liable for harm caused by the fault of that person suffered by another person if the harm is the result of the occurrence of something that cannot be avoided by the exercise of reasonable skill and care by the defendant.
(2)This section does not operate to exclude liability in connection with a duty to warn of a risk.
By s 5N(2) of the CLA, 'a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk'.
Subject to s 5O(2) of the CLA, s 5O, properly construed, removes any duty of care to warn of an obvious risk.[93]
[93] Keven Gors by his Plenary Administrator Janet Christine Gors v Tomlinson [2020] WASCA 164 [85] ‑ [86] as cited in Nikolich v Webb [74].
I adopt and apply the following principles enunciated by the Court of Appeal in Nikolich [90] - [94]:
90The obviousness of a risk is a question of fact. It will turn on the evidence of what occurred and why the risk is one that is obvious.
91In broad terms, an 'obvious risk', as defined in s 5F of the CLA, is one which is clearly apparent or easily recognised or understood. The risk must be obvious in the sense that, in the circumstances, it would have been obvious to a reasonable person in the position of the plaintiff. Thus, the test of obviousness is objective and does not turn on the subjective knowledge or beliefs of the plaintiff (although taking into account personal characteristics of the plaintiff; for example whether he or she was a child). However, the plaintiff's actual knowledge of matters which constitute the risk of harm may be relevant in two ways. First, the way in which the knowledge was acquired may be relevant to the prospective inquiry as to whether the risk would have been obvious to a reasonable person in the position of the plaintiff. Second, it may be relevant to know the extent to which the plaintiff was actually aware of the risk, in whole or part, so far as the obvious risk inquiry is into the knowledge that a reasonable person in the plaintiff's position should be taken to have had.
92The inquiry must take account of the objective circumstances of the plaintiff. The nature of the conduct or hazard that caused the harm also informs the obviousness of the risk. The surrounding circumstances which occurred immediately prior to the plaintiff suffering the relevant harm must be identified as it is necessary to identify the factual scenario facing the plaintiff. However, the process of determining whether a risk that has materialised is an obvious risk should not be over‑intellectualised. The language in s 5F (ie risks that are 'patent' or 'common knowledge' even if of 'low probability' or 'not prominent, conspicuous or physically observable') is not technical and does not invoke a legal concept.
93The term 'obvious risk' is also used in s 5H of the CLA. That statutory provision, in effect, exculpates a defendant from liability for harm caused where a plaintiff is engaged in a dangerous recreational activity if the harm is the result of the occurrence of something that is an obvious risk of that activity. It is accepted that identification of the risk asserted to be an obvious risk is an essential preliminary task in the determination of a defence under s 5H. Moreover, the degree of particularity or generality with which the risk is defined may dictate the outcome of the defence. In both respects that is also the position for s 5O.
94The preferred approach is to recognise that the identification of an obvious risk is a matter to be undertaken prospectively and without the benefit of hindsight. The prospective nature of the task therefore requires formulation of the risk at a reasonable level of generality as to the kind of risk involved. Stamping the character of the risk by reference to the 'fine-grained detail' available in hindsight as to how the event occurred is to defeat the evident object of s 5O. That said, however, for the purpose of s 5O, the specification of the risk must nevertheless be of sufficient particularity to capture, fairly, the harm which resulted from the risk materialising on the facts of the particular case. Determining the appropriate level of particularity in the formulation of the relevant risk of harm involves having an eye to hindsight. In this respect, hindsight may be used in selecting the relevant risk from a range of possible risks otherwise ascertained by reference to foresight. The correct approach is one which requires a balance to be drawn on the evidence in a particular case.
(citations omitted)

In Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council,[94] Justices Gaudron, McHugh & Gummow observed:
… 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. …
[94] Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512 [163].
The plaintiff submits that whilst the location and appearance of the concrete ridge might be obvious, the risk of injury was not obvious and the defendant was required to warn the plaintiff of the risk of injury associated with negotiating this particular concrete ridge. In support of the submission, the plaintiff relies on her successful negotiation of the concrete ridge hours earlier as indicating that whilst the concrete ridge was a risk, it was not an obvious risk to a person in the plaintiff's position.
I also note that the plaintiff makes the submission, albeit in support of another issue, that the risk was so obvious that it was an accident waiting to happen.
The defendant submits that it did not owe a duty of care to the plaintiff to warn her of the risk of injury arising out of negotiating this particular concrete ridge due to the obvious nature of this risk. Such a risk of injury was an obvious risk to members of the public, including the plaintiff, because of the obvious location and physical presentation of the concrete path including its height, width and curved surface.
The defendant asserts that it is a matter of common knowledge:
1.that a pedestrian might lose balance while negotiating such a concrete ridge; and
2.that the risk of losing balance and falling whilst stepping on, from and over objects is a common, ordinary activity.
The defendant submits, as a general proposition, that if something is obvious then a plaintiff should be expected to deal with it If there is a risk that, for some reason a person might lose their balance and fall, that is an obvious risk. Therefore, this is a risk that the plaintiff, as anyone else in the same position should have appreciated. As an obvious risk, it is not one which requires a warning to be provided to the plaintiff or anyone else in the position of the plaintiff.
The defendant submits that the concrete ridge is no different to any other 30 cm high impediment that someone might encounter while walking, regardless of the reason why it is there. In this case, the plaintiff was fully aware of the presence of the concrete ridge, and where it was, having traversed it successfully earlier in the night and having identified it with her torch in the immediate time before her fall. The plaintiff was in the process of navigating it when she fell. In those circumstances, there was nothing that prevented her from exercising ordinary judgment.
I am satisfied that the location and physical presentation of the concrete ridge was obvious to any person taking reasonable care for their own safety.
The weather was dry. There is no evidence to suggest that the concrete ridge was slippery from weather related events. The plaintiff's fall is not evidence that the concrete ridge was slippery.
There is no evidence of any latent imperfection or variations in the concrete ridge that rendered the risk of harm obscure or inconspicuous to anyone who traversed it.
The plaintiff had, only hours previously, successfully negotiated the concrete ridge without any issues. Her evidence was that she was able to step up and put her foot onto the concrete ridge comfortably. She said that she used the posts to help steady herself up onto and over the concrete ridge. The location and physical presentation of the concrete ridge, including its height, width and curved surface were all matters freshly in the mind of the plaintiff.
Applying the principles in Nikolich, a plaintiff's actual knowledge of matters which constitute the risk of harm may be relevant in two ways. I have already referred to those ways.
Lighting was not an issue as the torches held by both the plaintiff and Mr Hodgkinson provided enough light to see where they were going and what they were doing.
The mere fact that a similar risk may have existed when the plaintiff negotiated the concrete ridge on her way to the Festival, but did not eventuate into harm, does not mean that there was no obvious risk.
I am satisfied that a reasonable person in the position of the plaintiff would have known that:
•of the location and physical presentation of the concrete ridge;
•stepping on, over or from a dry concrete ridge of the height, width and curved surface as the concrete ridge in this matter presents a low risk of falling from it and causing personal injury;
•the risk would be greater if one was wearing thongs rather than closed in shoes, but I am unable to say how much greater the risk would be if one was wearing thongs;
•the presence of the wooden posts embedded in the concrete ridge were items available to use in the event one slipped or fell from the concrete ridge; and
•to traverse the concrete ridge safety, particularly when wearing thongs, it would be necessary to pay attention to where one was walking and tread carefully.
These observations are all matters of common knowledge and obvious to any person in the position of the plaintiff.
I am satisfied that the risk of a person whilst negotiating the concrete ridge and by some mechanism falls to the ground, and sustains an injury was an obvious risk within the meaning of s 5F of the CLA. Negotiating the concrete ridge, for the purposes of this decision, means a person stepping up onto and then stepping down from the concrete ridge. It follows that because of the operation of s 5O of the CLA, the defendant did not owe a duty of care to the plaintiff to warn her of that obvious risk.

If there was no duty to warn, has the defendant otherwise breached the required standard of care?

As I have already noted, the defendant admits that it owed the plaintiff a duty of care. The standard of care required of the defendant towards the plaintiff determines what the defendant is required to do under such a duty of care, to discharge that duty.
At common law, the question to be asked is what, if anything, a reasonable person in the defendant's position would have done in these circumstances by way of response to the foreseeable risk of that injury.[95] That is, the defendant has a duty to take reasonable care to avoid a foreseeable risk of injury to the plaintiff.[96]
[95] Department of Housing and Works v Smith [No 2] [2010] WASCA 25.
[96] Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, 488 (Mason, Wilson, Deane & Dawson JJ).
Additionally, the standard required to discharge the duty of care is to be assessed by two different pieces of legislation. Those two pieces of legislation relevant to this issue are the OLA and the CLA.
Section 4 of the OLA provides that s 5(1) of the OLA has the effect of replacing the common law standard of care owed by the occupier to an entrant. Section 5(1) of the OLA establishes the care an occupier is required to show:
… by reason of the occupation or control of the premises, to show towards a person entering on the premises in respect of dangers -
(a)to that person; or
(b)…
which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier of premises is by law responsible.
The standard of care shall 'be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger'.[97]
[97] Section 5(1) of the OLA
Section 5(4) of the OLA sets out the criteria that must be considered when determining whether an occupier of premises has discharged his duty of care.
The criteria in s 5(1) and s 5(4) of the OLA run parallel, and must be read together with, s 5B of the CLA.
Section 5B(1) of the CLA provides:
… that a person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
The phrase 'in failing to take precautions against a risk of harm' in s 5B(1) of the CLA refers to a failure by the person in question to take positive action against the possibility of the occurrence of harm. This harm may be of any kind including personal injury, damage to property and economic loss.
Section 5B(1)(c) of the CLA operates to provoke the question whether 'in the circumstances, a reasonable person in the [defendant's] position would have taken those precautions' which the plaintiff asserts should have been taken.
Section 5B (2) of the CLA sets out matters the court is to consider in determining whether a reasonable person would have taken precautions against a risk of harm. By its terms, 'amongst other relevant things', the matters set out in s 5B (2) of the CLA is not an exhaustive list.
When one looks at the criteria in s 5(4) of the OLA and s 5B of the CLA, the legislation defines the factors the court 'must' (in the case of s 5(4) of the OLA) and 'is to' (in the case of s 5B of the CLA) take into account in considering whether or not an 'occupier' (in the case of the OLA) or 'a person' (in the case of the CLA), has or has not discharged the duty that they owe to, in this case, the plaintiff.
There has been much judicial discussion regarding the interaction between the common law and the relevant sections of the OLA and the CLA. There is no conclusive determination as to this interaction in this State.
When one looks at the two pieces of legislation, there is a difference in the language used. In s 5(1) of the OLA, the word 'danger' is used whilst in s 5B(1) of the CLA, the phrase 'risk of harm' is used. In s 5(4) of the OLA, the phrase 'the gravity and likelihood of the probable injury' is used. In comparison s 5B(1) of the CLA holds a person liable where 'the risk was not insignificant' and in s 5B(2) considers 'the probability that the harm would occur if care were not taken'.
In my view, there is enough commonality in the concepts between the common law and those two pieces of legislation such that, if they were each to be applied individually to the facts and circumstances of this case, they would produce the same outcome.
There are three points of consideration when determining the standard of care owed by the defendant in the circumstances of this case:
1.Whether the risk of harm was foreseeable. That is, was it a risk the defendant knew or ought to have known?
2.Whether the risk (or danger) has not insignificant?
3.Whether, in all of the circumstances, a reasonable person in the defendant's position would have taken the precautions which the plaintiff has asserted the defendant did not take (s 5B(1)(c) of the CLA)?

Foreseeability of the risk of harm posed by the concrete ridge

To determine the foreseeability of the risk of harm, one must consider what the defendant knew or ought to have known.
Foreseeability of the risk of injury and the likelihood of that risk occurring are two different things. Consequently, reference to a risk of injury as 'foreseeable' does not equate to a statement as to the probability or improbability of its occurrence, save that it is implicitly asserted that the risk is not one that is far-fetched or fanciful. A risk of injury which is quite unlikely to occur may nevertheless be plainly foreseeable. In many cases, it may be true that the greater the degree of probability of the risk occurring, the more readily it will be perceived as a risk. It certainly does not follow that a risk which is unlikely to occur is not foreseeable.[98]
[98] Wyong Shire Council v Shirt (1980) 146 CLR 40 (Mason J with whom Stephen & Aitkin JJ agree).

The concept of foreseeability in connection with the existence of the duty of care involves a more generalised inquiry.[99]
[99] Wyong Shire Council v Shirt.
In assessing whether a risk of injury is foreseeable, it is sufficient if the kind of injury is foreseen as a possible consequence of particular conduct. It is not necessary to be able to foresee the particular injury. Nor is it necessary that the precise sequence of events leading to that injury be foreseen. In short, it is not necessary that an injury be of a particular severity, that it occurs by a particular mechanism, to be foreseeable.[100] It is sufficient for the risk to be within a class of risks that the defendant should, in a general way, have foreseen.

Was the risk or danger not insignificant?

[100] Allied Pumps Pty Ltd v Hooker [2020] WASCA 72 [8].

This requirement imposes a slightly more demanding standard than the common law test.[101] However, it is still 'not particularly high'.[102] The focus is on the degree of probability of the risk occurring.[103]

Reasonable person's response to guard against such foreseeable harm

[101] Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1.

[102] Cox v Fellows [2013] NSWCA 206 [145] (Gleeson JA, with whom Basten & Ward JJ agreed).

[103] Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2012] QCA 315; [2013] 1 QD R 319, 26 (Fraser JA, with whom White JA & Mullins J agreed).

Justice Buss in Department of Housing and Works v Smith [No 2] considered the notion of a 'reasonable person' and the standard of 'reasonableness' generally, under the common law of negligence. His Honour concluded that these well‑established propositions remain relevant in considering cases of alleged breach of duty by an occupier. The key propositions are as follows:
1.The determination of what, if anything, a reasonable person in the occupier's position would have done involves an assessment of what action would be reasonable and practicable for the occupier to underake.
2.This inquiry must not be undertaken in hindsight. It is necessary to look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the particular injury.
3.Contemporary standards within the community are relevant in determining what is reasonable in the circumstances of a particular case.
4.Reasonableness may require no response to a foreseeable risk that is not insignificant.
5.The occurrence of a foreseeable risk, that was not insignificant, does not establish unreasonableness.
Similarly, Justice Mason, with whom Justices Stephen & Aitkin agreed in Wyong Shire Council[104] stated that:
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer is in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
[104] Wyong Shire Council [221] (Mason J with whom Stephen & Aitkin JJ agree).
An occupier's duty is to exercise reasonable care to make their premises safe for entrants exercising reasonable care for their own safety.[105]
[105] Roads and Traffic Authority of New South Wales v Dederer [45].
The defendant is therefore entitled to an expectation that an entrant to the premises will take reasonable care for their own safety. Meagher JA explained this in Ratewave Pty Ltd v BJ Illingby:[106]
In assessing what reasonableness requires in response to a particular risk of harm, the reasonable person in the occupier's position is entitled to take into account 'with due allowance for human nature, [that] a person he permits to be on his premises will use reasonable care for his own safety. …
The weight to be given to that expectation is in each case a matter for factual judgment Thompson v Woolworths (Q'land) Pty Limited (2005) 221 CLR 234 at [35]; [2005] HCA 19; and the matters to be considered include the 'obviousness of [the] risk, and the remoteness of the likelihood that other people will fail to observe and avoid it' (at [36]). The Court (Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ) continued (at [37]):
'The factual judgment involved in a decision about what is to be reasonably expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any of them is likely to vary according to the circumstances of the case. If the obviousness of a risk, and the reasonableness of an expectation that entrants will take care of their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration.'
[106] Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103 [54].
It has been pointed out that the required standard can never be one of absolute safety. I refer to the commonly cited passage of Chief Justice Gleeson in Jones v Bartlett:[107]
[107] Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 [22] - [25].
22In the present case, we are not concerned with a dwelling house that was dilapidated or tumble-down, or that contained negligently installed and dangerous electrical wiring. There was nothing about the premises that alerted, or should have alerted, the owners to any unusual danger. The premises were constructed in accordance with the standards prevailing at the time, and, so far as appears from the evidence, were adequately maintained.'
23There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective. …
24In Phillis v Daly⁸ Mahoney JA said:
'… There are dangers on any premises. A room may have a desk or a table. There is a danger that, if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: people do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room. And this notwithstanding that people may live without tables and that tables may be easily removed. …'
25It is interesting, and not without relevance, to speculate about how many objects in and around an ordinary dwelling house would constitute a potential hazard to a person who behaved as carelessly as the appellant.
FN⁸: Phillis v Daly (1988 15 NSWLR 65 at 74.
Section 5 (4) of the OLA embodies the criteria which must be considered when determining whether an occupier of premises has discharged his duty of care, namely:
…
(a)the gravity and likelihood of the probable injury; and
(b)the circumstances of the entry onto the premises; and
(c)the nature of the premises; and
(d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises; and
(e)the age of the person entering the premises; and
(f)the ability of the person entering the premises to appreciate the danger; and
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.

Section 5B(2) of the CLA provides that:
In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
Consideration must be given as to whether a reasonable person in the defendant's position would have taken the precautions asserted by the plaintiff to guard against such risk.

The plaintiff's submissions

The plaintiff submits that the obviousness of the risk does not mean that it was reasonable for the defendant to do nothing to address the risk.

Foreseeability of the risk of harm posed by the concrete ridge

The risk in this case is that a person whilst negotiating the concrete ridge by some mechanism falls to the ground sustaining an injury. The plaintiff submits that this risk was specifically foreseeable and was not far‑fetched or fanciful. In the alternative, even if the court determines that this specific risk was not foreseeable, then the court need only be satisfied that the risk was of a kind that was foreseeable.
The plaintiff submits that any number of injuries are foreseeable from a fall from this concrete ridge. At one end, minor bruising may be foreseeable, and at the extreme end, death.
In terms of the defendant's actual knowledge about the risk of injury, the plaintiff submits the system the defendant had in place to lodge or report a complaint or incident concerning the concrete ridge was so flawed that the lack of any such a report of complaint or incident is not something to be given any weight. The flawed system leaves open the possibility that such an incident or complaint was made and no record of it now exists. In this regard, the plaintiff highlights there is no alignment between Mr Haas and Mr Marshall regarding their understanding of the complaint lodgement or incident notification systems. Moreover, whatever the system was, it was not readily identifiable or communicated to guests of the Caravan Park. The system was not workable in any meaningful way that rendered it retrievable.
In any event, the plaintiff submits that even in the absence of actual knowledge, the risk of harm was one which the defendant ought to have known about. In that regard, the plaintiff invites me to reject the evidence of Mr Haas and accept that the concrete ridge was built as a hazard or barrier to prevent vehicles and bicycles being driven or ridden through that garden area. The concrete ridge would similarly be a hazard to pedestrians who may choose to negotiate it to get into or out of the Caravan Park. The size, shape and location of the concrete ridge immediately creates a hazard to vehicles, bicycles and pedestrian access and therefore a risk which is foreseeable.
The plaintiff submits that it is plainly obvious and therefore plainly foreseeable that any person who attempts to negotiate the concrete ridge by stepping up onto it and then stepping down from it could misjudge, misstep, trip or lose their balance and fall resulting in an injury, including a catastrophic injury.

Was the risk or danger not insignificant?

The plaintiff argues that the risk of harm was foreseeable and not insignificant because of a combination of factors, including:[108]
[108] Plaintiff's outline of opening submissions dated 3 May 2021, para 22.
1.The location of the concrete ridge. In that regard:
(a)the concrete ridge was unavoidably located in the middle of a path that allowed access in and out of the Caravan Park;
(b)the path on which the concrete ridge was located was the most direct and convenient path between the Caravan Park and the Old School oval (where the Festival was held);
(c)the commencement of the path at the public use concrete footpath end was marked by two posts giving it the distinct appearance that it was a path and inviting guests to use the path;[109] and
(d)the commencement of the path was the first unobstructed pathway into and out of the Caravan Park.
2.The defendant knew that the path was being used by guests of the Caravan Park to enter and exit the park well before the plaintiff's fall and injury.
3.The lack of available alternate pathways in and out of the Caravan Park.[110] Aside from the main entrance, the availability of an alternate pathway was not obvious at the relevant time and, if one existed, was not communicated to the plaintiff and her husband.
4.The concrete ridge was a hazard by design and not built to any specific standards that may safely accommodate pedestrians stepping up onto it and off it.
5.The nature of the Caravan Park is a place where a wide variety of people of various ages and abilities attend. It must therefore cater for a wide range of people and abilities. The defendant's duty is to address the risk for the class of people that are likely to come across this concrete ridge. This, the plaintiff says, increases the onus on the defendant to do something about the hazard created by the concrete ridge.
[109] Town of Port Hedland v Reece William Hodder by next friend Elaine Georgina Hodder (No 2) [2012] WASCA 212; (2012) 43 WAR 383.
[110] Shire of Manjimup v Cheetham [2010] WASCA 225 [76] - [77]; Murphy v Burnett Shire Council [2006] QDC 20 [11].
In addition, the plaintiff relies on the following concessions made by Mr Haas:
1.That a person could trip over the concrete ridge or slip or fall whilst walking over it. The plaintiff says that this could extend to someone who is trying to stride over it or negotiate it by stepping on it in order to get over it.
2.That if the concrete ridge was an access point, it constituted a hazard.
3.That if Mr Haas had been told by Mr Marshall that people were walking through that area on a regular basis, he would have put a chain up, similar to the one that was placed after the plaintiff's incident.
The plaintiff submits that there are a variety of possibilities in which the risk of injury may materialise with varying degrees of severity.
The plaintiff's fall was a materialisation of the risk that was posed by the concrete ridge.
In this case, the plaintiff claims that the concrete ridge was a hazard that was observable, recognisable, identifiable and obvious from the moment it was created. In all of the circumstances, the risk created by the concrete ridge was foreseeable and not insignificant. It is that obviousness of the risk which required the defendant, acting reasonably, to guard against it.

Reasonable person's response to guard against such foreseeable harm

The plaintiff contends that the defendant's conduct is to be measured by the standard of a reasonable occupier of a caravan park.[111]
[111] Plaintiff’s outline of opening submissions dated 3 May 2021, para 13.
The plaintiff claims[112] that the defendant breached its duty of care to the plaintiff by:
1.installing the hazardous concrete ridge along the pathway which the defendant knew or ought to have known was used by guest of the Caravan Park;
2.failing to remove the concrete ridge;
3.failing to cordon off the pathway; and
4.failing to warn or discourage guests of the Caravan Park, including the plaintiff, from walking along the pathway.
[112] Plaintiff's statement of claim dated 12 April 2019, para 9.
The plaintiff says that 'had reasonable care been taken irrespective of precisely how the accident happened, the incident would not have occurred at all'.
Put simply, the plaintiff asserts that the concrete ridge should not have been installed there or should not have been made available for general public use as part of a pedestrian access way.
In addition, the plaintiff asserts that the concrete ridge served no useful purpose. It simply created an unnecessary obstacle or hazard for pedestrians to negotiate. The defendant's claim that the concrete ridge served to delineate the Caravan Park area ought to be rejected. To begin with, the concrete ridge could not serve that purpose as it did not extend the entire length of the Caravan Park boundary but rather only a relatively small part of the boundary. In any event, the public use of the concrete footpath already served that purpose at least on one side of the Caravan Park.
In addition, the concrete ridge possessed no aesthetically pleasing qualities and its removal would not detract from the beautification of the Caravan Park.
If the court accepts that the concrete ridge did serve a useful purpose, such as traffic control in that area, the plaintiff submits that the defendant could use other cost-effective methods to address traffic control issues as well as not creating a risk of harm. For example, the defendant could install a chain right across the area just as it has done in other parts of the Caravan Park.
The plaintiff asserts that had the concrete ridge been cordoned off, it would have discouraged pedestrian access. Consequently, the plaintiff would have been required to find another access point and not needed to negotiate the concrete ridge. The plaintiff highlights the defendant's evidence that since the plaintiff's incident, access to the area was cordoned off. This measure has successfully prevented or discouraged access to the pathway.
The plaintiff submits that the concrete ridge is a risk of harm because it is not an ordinary risk. It is not a usual or ordinary obstacle. It is not an innocuous imperfection.
To guard against this risk, if the concrete ridge is not removed, then the defendant should cordon off the pathway to prevent people using it.
The plaintiff argues that the assessment of whether the defendant has adequately discharged its duty of care in the presence of a foreseeable and not insignificant injury is to be determined by a weighted consideration of the criteria in s 5(4) of the OLA and s 5B(2) of the CLA.[113] The weight to be afforded to each of those criteria will depend on the circumstances.[114]
[113] Plaintiff’s outline of opening submissions dated 3 May 2021, para 23,
[114] For example, Homestyle Pty Ltd v Perrozzi [2007] WASCA 16 [49].
The plaintiff addressed some of the criteria in s 5(4) of the OLA and s 5B(2) of the CLA to which I have already referred.
The plaintiff contends that one cannot exclude the possibility that there were complaints or incidents about the concrete ridge which have been lost in the flawed system, allowing the concrete ridge to remain in the Caravan Park on a pathway used by pedestrians.
It is submitted that it is unnecessary for the court to determine the precise movement of the plaintiff's feet as she stepped on and over the concrete ridge resulting in her falling to the ground. This is because it can reasonably be inferred that but for the height and curve of the concrete ridge the plaintiff would not fallen and injured her ankle.

The defence submissions

Foreseeability of the risk of harm posed by the concrete ridge

The defendant accepts that it was aware that people were using the area as a thoroughfare and that by inference was aware that people had to navigate over the concrete ridge. However, the defendant says that it had no actual knowledge of the risk of harm to people negotiating the concrete ridge. In that regard, the defendant points out that the concrete ridge has been in that location with no change in physical presentation from late 2010 until February 2016. During this time, the defendant received no notification of any complaints or incidents concerning the concrete ridge. Aside from the absence of any notification of any complainants or incidents, neither Mr Haas or Mr Marshall had any personal recollection of there being any issues with the concrete ridge prior to the plaintiff's incident.
The defendant denies that the concrete ridge was installed in late 2010 as a hazard or barrier to stop cars and bicycles accessing the Caravan Park at that location. The defendant submits the concrete ridge was installed rather as a boundary to the Caravan Park.
Mr Marshall regularly worked in and around the area of the concrete ridge and at no time formed the view that the area, when being used as a pathway, posed a danger to the people using it.
The defendant submits that the concrete ridge was an ordinary object which would require no more than common knowledge to negotiate it safely. Thus, there is no reason for the defendant to have appreciated the risk of injury.

Was the risk or danger not insignificant?

The defendant submits that the concrete ridge did not constitute a danger or risk but if it did, the danger or risk that it created was so small that it was insignificant. It did not require the defendant to remove it or cordon it off for the following reasons:
1.The concrete ridge was not concealed. It was obvious and could easily be seen by anyone who was taking reasonable care for their own safety.
2.There was nothing about the concrete ridge that created a danger. It had no jutting edges or concealed lumps, it was not slippery, and it was not so high that it could not be safely negotiated by a pedestrian. The defendant relied on the lack of reported incidents or issues raised about the concrete ridge since it was installed in late 2010. In addition, the defendant highlights the plaintiff having earlier in the evening used the same pathway, and negotiated the concrete ridge without any incident.
3.This was a caravan park which had alternate entry and exit pathways. The plaintiff, like all other guests, had options, however chose to take this pathway home, fully appreciating the nature of the pathway including the need to negotiate the concrete ridge.
4.Lighting was not an issue as part of the plaintiff's claim.
The defendant submits that the state of the evidence is such that the court cannot be satisfied on the balance of probabilities that the plaintiff's fall and injury was as a result of the concrete ridge. The defendant asserts that the mechanism for the plaintiff's fall and injury are unknown and are unable to be ascertained and that is fatal to the plaintiff's claim. There are many mechanisms which could have been responsible for the plaintiff's fall and injury which are not as a result of the bare existence of the concrete ridge such as:
1.the plaintiff's failure to judge the distance that she had to lower her foot to the ground; or
2.the plaintiff's failure to move her weight and keep her balance; or
3.tripping on her thongs.
The defendant submits that falling from an object that is 30 cm above the surrounding surface is not evidence of a risk of such severity that something should have been done about it.
The defendant argues that just because the plaintiff fell does not mean there was anything unsafe about the pathway and the concrete ridge. To logic in that way would involve a retrospective assessment of the defendant's liability which is an impermissible manner of reasoning.

Reasonable person's response to guard against such foreseeable risk

The defendant denies that the installation of the concrete ridge caused the plaintiff's incident and denies that the concrete ridge was hazardous.
The defendant submits that the mere fact that the plaintiff fell and was injured cannot be determinative of the issue. The defendant repeats and relies on its submissions regarding the inability to determine the mechanism of the plaintiff's fall. The defendant submits that this necessarily means that it cannot be excluded that the plaintiff fell and was injured due to her failure to take reasonable care for her own safety. Therefore, the invitation by the plaintiff to use the 'but for' test cannot be utilised to cure what is critically unknown.
The defendant asserts that pedestrians using the pathway and negotiating the concrete ridge are to take care for their own safety including by watching where and how they were stepping or steadying themselves including by holding onto one of the posts or wearing appropriate footwear.
Again, the defendant relies on the lack of recorded complaints or incidents to assert that there was no reason for the defendant to consider the concrete ridge as a risk.
The defendant maintains that the purpose of the concrete ridge was to delineate the boundary to the Caravan Park.
The defendant submits that the concrete ridge is an ordinary object that a person would encounter and did not require removal or cordoning off. There was nothing about the concrete ridge that would take it out of the ordinary object category and characterise it as hazardous or dangerous warranting the defendant to take action about it.
Whilst it has admitted that it placed orange bunting and a chain across the pathway to stop people using the pathway after the plaintiff's incident, the defendant submitted that the court cannot take into account its the reaction after the plaintiff's incident occurred as evidence of what should have done before the incident.
The defendant invites the court not to place any weight on Mr Haas’s opinions regarding the concrete ridge and what the defendant would have done had it known the concrete ridge was on a path used by pedestrians. It is asserted that such an opinion suffers from hindsight bias. In any event, no one thought it necessary to do so up until the plaintiff’s incident.
The defendant submits that no reasonable person in the position of the defendant would have taken any precaution. No reasonable person in the position of the defendant would have warned any person about the existence of the concrete ridge, removed the concrete ridge, or cordoned off the pathway on which the concrete ridge was located.

My determination

By reference to the three questions that I must answer, my determinations and reasons are set out below.

Was the risk of that harm foreseeable? That is, was it a risk of which the defendant knew or ought to have known?

I have already particularised that the nature of the risk of harm is that a person, whilst negotiating the concrete ridge may, by some mechanism, fall to the ground and sustain an injury.
I am then required to consider whether the risk was foreseeable. The risk is foreseeable if a reasonable person in the defendant's position knew, or ought to have known as a possible consequence that a person, whilst negotiating the concrete ridge by some mechanism may fall to the ground and sustain an injury.
The defendant, through Mr Marshall, admitted that, in February 2016, it knew that the accessway over the concrete ridge was being used as an access point by pedestrians.
As to the defendant's actual knowledge of the risk of harm, I accept the evidence given by both Mr Haas and Mr Marshall that neither of them were aware of any complaint or incident involving the concrete ridge for the period of time they were employed by the defendant. In addition, there is no evidence of any report of any complaint or incident involving the concrete ridge since it was installed in late 2010.
The system of reporting complaints and incidents was, in my view, very loose and undefined to the extent that Mr Haas and Mr Marshall did not share the same understanding of the system that was said to be in place. Documentation to complete in order to report an incident or complaint was, remarkably, not available at the Caravan Park but at the Shire offices, some distance away. This reporting system was not one made clear to guests of the Caravan Park
I accept the plaintiff's submission that the system, such as it was, was flawed. It was inconvenient, unclear and unusable shedding doubt on its accuracy of its data. In those circumstances, the possibility of there being a report of a complaint or incident concerning the concrete ridge cannot be excluded.

However, whether there has been a notification of a complaint or an incident involving the concrete ridge, is not determinative of the matter.
I have also had regard to the utility of the concrete ridge when it was installed in late 2010. On that issue, the defendant denies that the concrete ridge was installed as a hazard to deter vehicles and bicycles from using the pathway as an access point and maintains that the concrete ridge was used to delineate the Caravan Park boundary from other areas. When one looks at the concrete ridge and its location, I find it difficult to accept the defendant's explanation for the use of the concrete ridge. The concrete ridge extends along the length of the garden area and no further. There is no evidence that there are other locations in the Caravan Park where the defendant has used a concrete ridge to create a boundary to the Caravan Park. If the concrete ridge was to be utilised as the Caravan Park boundary, then it has been done in an inconsistent way that did not achieve that goal.
Thus, I am unable to accept the defendant's evidence that the concrete ridge was installed to act as a boundary or to delineate the Caravan Park from other property. I am also unable to determine what use, if any, the concrete ridge had when it was installed.
I accept the plaintiff's submission that the height, shape and location of the concrete ridge together with the wide variety of people and their abilities who are likely to use the pathway containing the concrete ridge are factors I should have regard to in determining the issue of foreseeability. The height requires one to step up, on and over and that alone elevates the risk. The curved shape may also elevate the risk of injury. I do have regard to common experience and common knowledge about such matters.
In my view, after taking all relevant matters into consideration, a reasonable person in the defendant's position would, in the circumstances, have foreseen - that is ought to have known - of the risk or danger of harm in negotiating the concrete ridge. Therefore, the plaintiff has satisfied me on the balance of probabilities that the risk of harm was foreseeable.

Was the risk or danger not insignificant?

Focussing on the degree of probability of the risk occurring, I have had regard to many of the matters to which I have already referred including (but not limited to):
1.the location of the concrete ridge on a path in a Caravan Park;
2.the physical presentation of the concrete ridge including its height, width and curved surface;
3.the obvious presence of the concrete ridge on the path;
4.the Caravan Park is to cater for a wide variety of people and abilities;
5.the availability of alternate pathways in and out of the Caravan Park;
6.the existence of the two posts embedded in the concrete ridge; and
7.an expectation that those negotiating the concrete ridge exercise reasonable care for their own safety.
The premises the subject of this litigation is a caravan park. This particular caravan park was, an open and partly unfenced, allowing guests to walk over various surfaces (including grassed, bitumen, concrete or dirt surfaces) to find their way in, around and out of the Caravan Park. That is the general nature of caravan parks.
In relation to this Caravan Park, pedestrians had available to them a variety of entry and exit points including:
1.through the main entrance where the reception area was located; and
2.over or under a low-lying chain across the dead-end road in the vicinity of the pathway on which the concrete ridge was located.
In my view, the availability of these various pathways in, around or out of the Caravan Park did not need to be specifically communicated to guests of the Caravan Park, including the plaintiff.
Having made that observation, I am of the view that the pathway on which the concrete ridge was located could easily be perceived to be the first open and available pathway into the Caravan Park from the Festival. The two open vertical posts embedded in the concrete ridge almost invited guests to use the pathway. Even accepting the plaintiff's submission on this issue, it still remains the case that the concrete ridge's presence and location were obvious. The concrete ridge was not a trap, concealed or otherwise. Its size, shape and physical presentation were easily determined by a pedestrian who was taking reasonable care to negotiate it. This is not a case of being confronted with the unexpected.
As previously mentioned, the two wooden posts that were embedded in the concrete ridge may have acted as an invitation to pedestrians to use the pathway. Those posts were conveniently placed to be used by pedestrians to steady themselves as they negotiated the concrete ridge, if that was required. There is an expectation that a pedestrian would do what they could to exercise reasonable care for their own safety including, if they choose to use this pathway, steadying themselves when negotiating the concrete ridge using the two wooden posts.
As I have said, this is a caravan park where guests are expected to be able to negotiate safely various objects. This concrete ridge is one such object.
In my view, there was a risk or danger of harm, but that level of risk or danger, in the circumstances of this case, was insignificant. Therefore, the plaintiff has failed to satisfy me on the balance of probabilities that the risk of harm or danger was not insignificant and the plaintiff's claim must fail.
However, if I am wrong about that, I will go on to consider the next matter.

Whether, in all of the circumstances, a reasonable person in the defendant's position would have taken the precautions which the plaintiff has asserted the defendant did not take (s 5B(1)(c) of the CLA)?

In determining this issue, I am cognisant of the test in s 5(1) of the OLA being, what, if anything, was reasonable in all the circumstances of the case to see that the plaintiff will not suffer injury or damage by reason of any such danger. As well, I am cognisant of the test at common law being, what, if anything, would a reasonable person in the defendant's position have done to guard against such a risk of that injury.
It is instructive to firstly identify the relevant 'circumstances' before one determines the 'position' of the defendant and considers the response of the reasonable person.
There are numerous factors to consider including those set out in s 5(4) of the OLA and s 5B(2) of the CLA.
As to the 'gravity and likelihood of the probable injury', in my view, there is no particular type of injury which is 'probable'. In this case, one can hypothesise a range of injuries. The injury sustained by the plaintiff is in the lower to middle of the range of seriousness.
Similarly, as to the 'likely seriousness of the harm', in my view, there is a range of injuries that are possible with no one particular degree of seriousness being more likely than any other.
The 'probability that the harm would occur if care were not taken', in my view, is low and insignificant. Whilst the concrete ridge was about 30 cm high, it was not so high to elevate the probability of harm to the level of 'not insignificant'.
As to the 'circumstances of the entry onto the premises', the plaintiff was on the defendant's property in circumstances where she was a guest of the Caravan Park.
As to the 'nature of the premises', being a caravan park operated by the defendant, one would rightfully expect a wide variety of people with a wide variety of abilities and backgrounds to be guests from time to time. Similarly, guests at a caravan park can readily expect to negotiate a wide range of objects as part of the ordinary or normal set up of a caravan park.
As to the 'knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises', in this case, the defendant knew of the presence of the plaintiff as a guest of the Caravan Park.
As to 'the age of the person entering the premises', the plaintiff was 59 years of age.
As to 'the ability of the person entering the premises to appreciate the danger', there was no evidence to suggest that the plaintiff was anything other than a 59‑year‑old woman in good health overall with no known impediments to her negotiating the concrete ridge safely.
As to 'the social utility of the activity that creates the risk of harm', in my view, there is no identifiable utility, social or otherwise, for the concrete ridge.
Turning now to consider the position of the defendant. The defendant is a local government instrumentality whose responsibilities included the management of the Caravan Park.
I turn my attention to consider whether, in the circumstances, a reasonable person in the defendant's position would have taken the precautions identified by the plaintiff.
The phrase in s 5B(1) of the CLA 'failing to take precautions against a risk of harm' relevantly refers to a failure by the defendant to take positive action against the possibility of the occurrence of harm of any kind including personal injury'.
The manner in which the plaintiff says the duty of care was breached is set out in the statement of claim[115] as follows:
The plaintiff's accident and injury was caused by the defendant's, it's servants and/or agents breach of duty of care.
(a)Failed to cordon of the pathway;
(b)Failed to warn or discourage guests of the caravan park, including the Plaintiff, from walking along the pathway;
(c)Installed the hazardous concrete lump, along the pathway, which the Defendant knew or ought to have known was used by its guests; and/or
(d)Failed to remove the concrete lump.
[115] Statement of claim dated 12 April 2019, par 9.
I have already ruled that the defendant did not have a duty to warn the plaintiff. For the same reasons, I am of the view that the defendant had no duty to warn or discourage guests of the Caravan Park from walking along the path.
This leaves, in practical terms, the two precautions against a risk of harm to be considered which were pursued at trial by the plaintiff.
For the plaintiff to succeed, a reasonable person in the defendant's position must do one or more of the following:
1.cordon off the pathway; and/or
2.remove the concrete ridge.
By s 5(4)(g) of the OLA, the question of breach includes an assessment of the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person. This factor is also relevant considering s 5B(2)(c) of the CLA, expressed as 'the burden of taking precautions to avoid the risk of harm'.
As to the burden on the occupier of eliminating the danger or protecting the person entering the premises, I accept the plaintiff's submission that the cost of removing or cordoning off the land surrounding the concrete ridge would not be prohibitive and could be done in a cost-effective manner.
I do not accept that the concrete ridge was an ordinary object but I also accept that it was not a hazard. I accept that stepping over such an object is a common, ordinary activity and it would be within common knowledge as to how to negotiate the concrete ridge safely.
As has been noted, the two posts embedded in the concrete ridge could both easily act as supports for a pedestrian as they negotiated it.
The defendant could have cordoned off the pathway or removed the concrete ridge. This would remove the risk entirely. That such the defendant might have taken those steps and that those steps might have avoided the incident, is not determinative of this issue.
I accept that this concrete ridge may have posed some risk to those who attempted to negotiate it, who were hurrying or who may have been carrying objects, not paying attention as they negotiated it. It was, however, a risk that was not significant and indeed a risk that people are required to cope with in the ordinary course of their daily activities.
In my view, it was not a hazard of a kind which requried some protection or warning. In all of the circumstances, the risk of a person who was exercising reasonable care for his or her own safety, slipping or tripping or losing balance by some other mechanism and falling was so low, as to be insignificant. The location and physical presentation of the concrete ridge was obvious, allowing pedestrians to step on and over it using common knowledge as to how to do so safely. I am satisfied that in discharging the duty of care owed to the plaintiff, the applicable standard of care required the defendant to do nothing with or about the concrete ridge.
To be clear, a reasonable person in the defendant's position would not, in the circumstances, have removed the concrete ridge or cordoned it off for the purpose of guarding against the risk that the plaintiff might, by some means, fall and sustain an injury as a result of negotiating the concrete ridge.
Therefore, the plaintiff has failed to satisfy me on the balance of probabilities that the defendant has breached its standard of care.
In coming to my decision, I have had regard to the common law principles governing claims in negligence together with the two pieces of legislation which are relevant to these issues, being the OLA and the CLA. I have identified the various relevant provisions and authorities in respect of each matter I have been required to determine. There is much commonality in the concepts between the common law and statute. I have taken into consideration any differences that may exist between the common law and the legislation and have ultimately arrived at my decision with all those matters in mind.
To summarise, I have made the following determinations:
1.That the risk of harm posed by the concrete ridge was an obvious risk within the meaning of s 5F of the CLA.
2.That the operation of s 5O of the CLA means that the defendant did not owe a duty of care to the plaintiff to warn her of that obvious risk.
3.That the risk of harm posed by the concrete ridge was foreseeable.
4.That the risk of harm posed by the concrete ridge was insignificant. If I am wrong about that then I go on to consider the next issue.
5.That discharging its duty of care to the plaintiff, the defendant was not required to warn, discourage, cordon off or remove the concrete ridge

Final orders

For these reasons, the plaintiff has not proven on the balance of probabilities that her injuries were caused by the negligence of the defendant. Accordingly, the action should be dismissed.
I will hear from Counsel as to costs.
Exhibit D3

Exhibit P13
Exhibit P25
Exhibit P8

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CG
Associate to the Judge
26 APRIL 2023